Apex Court is in favour of disclosing marks of Main Exam before conducting viva-voce in Judicial Services-13/12/2019

SUPREME COURT OF INDIA JUDGMENTS

As the written examination assesses knowledge and intellectual abilities of a candidate, the interview is aimed at assessing their overall intellectual and personal qualities which are imperative to hold a judicial post.

Disclosing mark of written Examination before Viva-Voce-As regards the petitioners’ plea that marks of the Main Exam should be disclosed before conducting viva-voce, we are of the considered opinion that such a practice may not insulate the desired transparency, rather will invite criticism of likelihood of bias or favourtism. The broad principles to be laid down in this regard must be viewed keeping in view the selections for various categories of posts by different Selecting Authorities, for such a self-evolved criteria cannot be restricted to Judicial Services only. If the Members of the Interviewing Boards are already aware of the marks of a candidate secured in the Written Examination, they can individually or jointly tilt the final result in favour or against such candidate.The suggested recourse, thus, is likely to form bias affecting the impartial evaluation of a candidate in viva-voce. The acceptance of the plea of the petitioners in this regard will also run contrary to the authoritative pronouncement of this Court in Ashok Kumar Yadav and Others v. State of Haryana((1985) 4 SCC 417).

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Order 8, Rule 10 [CPC]-Non filing of written statement

The condition precedent for proceeding under Rule 10, therefore, is that the court must require the defendant to file the written statement and if one being so required the defendant fails to comply with the order within the time allowed, the court has been given the power to pronounce the judgment against him.

The Statute: Order 8, Rule 10, C.P.C. reads thus:–

“Rule 10, Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit, and on the pronouncement of such judgment, a decree shall be drawn up.”

Rule 10 contemplates two contingencies, namely (I) where a party from whom a written statement is required under Rule 1 fails to present the same within the time permitted by the Court; and (2) where a party from whom a written statement is required under Rule 9, CPC fails to present the same within the time fixed by the Court. Under Rule 10, when any party fails to present written statement under any of the circumstances stated above, the two courses are open to the Court. First, the Court may ”proceed to pronounce judgment. Secondly, the Court may make such order in relation to the suit as it thinks fit.


The Approach 

In Nagaratnam Pillai v. Kamlathammal A I R 1945 Mad. 299 it was held that rule 10 relates only to rule 9 and cannot be taken to relate to rule 1. The Court has, therefore, no jurisdiction to pronounce judgment under rule 10 of Order 8 against the defendant who has failed to file his written statement. This decision was followed in Misc. (first) Appeal No. 76/58 decided on 31-8-1959. A similar view was expressed in Deokishandas v. Union of India 1961 M P L J 53 : 1961 J L J 163 (Civil Revision No. 376 of 1960 decided on 6-1-1971 (Jabalpur S B). The trial Court was, therefore, in error in proceeding to pronounce judgment under Order 8, Rule 10, CPC merely because the defendant has failed to file his written statement. It is obvious that no direction to file a written statement was given to the defendant applicant in this case as required by rule 9 of Order 8, Civil Procedure Code. The Court had no jurisdiction therefore, to proceed under Order 8, Rule 10, Civil Procedure Code. The impugned order is, therefore, liable to be set aside.

The amendments carried out in Rule 10 are that the written statement required to be filed must be one under Order 8 Rule 1 or Rule 9. Then the next amendment introduced is that the word ‘permitted’ has been used. The unamended Rule 10 only gave discretion to the Court to pronounce a judgment while the amended section makes it mandatory for the Court to pronounce judgment against him. It further says that on the pronouncement of such judgment, a decree shall be drawn up. These words viz., that “on the pronouncement of such judgment a decree shall be drawn up” are introduced by the amendment. It was not to be found in the old Rule 10. Formerly if a judgment was pronounced under Order 8 Rule 10, it was treated as an appealable order and Order 43 Rule 1(b) provided for an appeal. Order 43 Rule 1 (b) is repealed. Therefore on account of the appeal of Order 43, Rule 1(b), the right of filing a Miscellaneous Appeal against the judgment pronounced under Order 8 Rule 10 is taken away. The simple repeal of such a valuable right must have some meaning. Now the amended Rule 10 speaks that “On the pronouncement of such judgment, a decree shall be drawn up” will have to be given some meaning especially in view of the taking away of the right of appeal provided by Order 43 Rule 1(b). The definition of ‘decree’ given in Section 2(2), CPC stated that a decree shall not include any adjudication from which an appeal lies as an appeal from an order. So any judgment pronounced under the unamended Rule 10 could not be followed by a decree within the meaning of Section 2(2) because a Miscellaneous Appeal had been provided by Order 43 Rule 1(b). Therefore, any judgment that was pronounced under the unamended Rule 10 only amounted to an order and therefore the right of appeal under Order 43 Rule 1(b) had been provided. Therefore in view of the repeal of Order 43 Rule 1 (b) and in view of the specific use of the words “a decree shall be drawn up”, it appears to me that the Legislature intended to provide rather better remedies to the party who suffered a decree passed under Order 8 Rule 10, CPC.


Discussion

Apart from the above, a perusal of the order dated 9-4-1992 by the suit was decreed ex parte under Order 8, Rule 10, C.P.C., would show that the court had decreed the suit merely on the ground that the defendants did not file the written statement. The court below has not called upon the plaintiff to give evidence neither has the plaintiff given evidence in support of his case. Even if the defendant does not file written statement the plaintiff still has to prove his case. It appears that the court below presumably thought that the failure of the defendants to file written statement amounts to admission of facts as alleged in the plaint and, therefore, decreed the suit. I am of the view that by adopting this procedure the court has manifestly erred. I am of the view that even if the defendant does not appear at all the court is not empowered to hold that the allegations made in the plaint would be deemed to be correct and so a decree can follow. In the absence of a specific provision to that effect the plaint and the allegations contained therein do not constitute any evidence on the basis of which the court can act. It was, therefore, necessary to record ex parte evidence of the plaintiff. It was held by this Court in the case of Smt. Phuljhari Devi Vs. Mithai Lal and Others, that a mere omission to file the written statement does not amount to an admission of the facts stated in the plaint. A similar view has been taken by the Delhi High Court in the case reported in Union of India Vs. Bhagwan Dass, . In the said case it has been held that the failure of the defendant to file the written-statement does not raise the presumption that the defendant admits all the allegations contained in the plaint and so the allegations of the plaintiff must be deemed to be correct. The court is not entitled to act on the allegations of the plaint and it mut act on the proved evidence before it. In the case of Smt. Krishna Devi Vs. Raj Kumar and Another, the said Court had also taken a similar view when it held that the judgment the court is enabled to pronounce under Rule 10 of Order 8, C.P.C. should conform to how the expression is defined in Section 2(g), C.P.C. It should state the ground on which it is based. A mere statement that the suit of the plaintiff is decreed under Order 8, Rule 10, C.P.C. could not be sustained.[(1994) AIR(Allahabad) 193 ]

  1. Ram Rakhan and Another Vs. Mahant Govind Das and Another, AIR 1945 All 352 : (1945) 15 AWR 186
  2. Smt. Krishna Devi Vs. Raj Kumar and Another, AIR 1986 Raj 72
  3. Union of India Vs. Bhagwan Dass, AIR 1976 Delhi 96
  4. Smt. Phuljhari Devi Vs. Mithai Lal and Others, AIR 1971 All 494

Supreme Court Observation

In Kailash v. Nankhu , the Supreme Court had considered the provisions of Order 8 Rule 1CPC and observed as under:

…(iv) the purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1, CPC is to expedite and not to scuttle the hearing. The provisions spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1, order VIII, CPC is couched in negative form, it does not specify any penal consequences following from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by order VIII, Rule 1 CPC is not completely taken away.

(v) Though Order VIII, Rule 1, CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases, which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provisions is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever, briefly, by the Court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional occasioned by reasons beyond the control of the defendant and grave injustice would-be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.


Extension of Time

It is profitable to reproduce Section 148 of CPC herein:

Section 148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired.

While going through this provision of law, one comes to inescapable conclusion that this provision nowhere commands that the same court should extend the time which has fixed the time frame. I am of the considered view that ‘court’ includes subordinate court or appellate court/revisional court.

This point has come up for consideration before the Madras High Court in case titled Abdul Shaker v. Abdul Rahman reported in AIR 1923 Mad 284. Their Lordships have held that if the appellate court has fixed time for doing an act, the original court has jurisdiction and powers to grant extension of time. It is profitable to reproduce relevant portion of the judgment herein:

The appeal therefore be dismissed with costs. The time for the completion will be extended by this decree for a period of two months. It must be understood that the original Court still has jurisdiction in this matter and has full powers to deal with any point that may arise including, if necessary, an application for further time.

This point also came up for consideration before the Andhra Pradesh High Court in the year 1959 and their Lordships have held that trial Court has the powers to extend the time even though the appellate court has fixed the time. Their Lordships also discussed the scope of Section 148, CPC. It is profitable to reproduce paras 3 and 4 of the said judgment Mareddi Venkata Rami Reddy Vs. Mareddi Adinarayana Reddy and Others, , herein:

(3) This authority was followed by another Bench of the Madras High Court in the case of Mahommadalli Sahib Vs. Abdul Khadir Saheb, and by the Allahabad High Court in Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others, .

(4) It would thus appear that, though we had fixed a fresh period in our judgment while disposing of A. S. No. 627 of 1954 the power of the trial Court is still intact to consider the question of extension in the circumstances as mentioned in the affidavits filed in support of the petition. In these circumstances, we need not go into the larger question whether it is open to the appellate court to extend further time in the present circumstances.

The Allahabad High Court has held in case Sital Din and Others Vs. Annant Ram , that time given by appellate court can be extended by trial Courts.

The Apex Court has in case titled Gangadharrao Narayanrao Majumdar Vs. The State of Bombay and Another, , held that the Court is clothed with ample powers to extend the time and pass such orders in the interests of justice in order to do justice between the parties. Their Lordships have further held that the Court has powers to extend time even if the Court has passed pre-emptive procedural orders.

The Apex Court in a case titled as Smt. Jodhayan Vs. Babu Ram and Others, , has held that the powers given to the Court u/s 148, CPC are discretionary and the purpose of the said powers is just to secure the ends of justice in case of necessity. It is profitable to reproduce relevant portion of the said judgment herein:

…The power to the Court u/s 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion, the High Court committed an error in not adverting to, and not exercising its powers u/s 148, CPC and in dismissing the appeal without going to the merit of the matter.

 Court has also held in case Satinder Subarwal v. Om Prakash reported in 1977 (8) JKLR 50, that trial Court is competent to grant extension of time while exercising powers u/s 148, CPC even though time is fixed by the appellate Court. It is profitable to reproduce relevant portion of the said judgment herein:

…secondly the legal position is established that even the trial Court is competent to grant extension in time in exercise of its power u/s 148 of the C.P.C. In my opinion there is no warrant for the proposition that only the appellate Court could exercise this power and not the trial Court….

  1. Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others, AIR 1958 All 488
  2. Mahommadalli Sahib Vs. Abdul Khadir Saheb, (1930) 59 MLJ 351
  3. Gangadharrao Narayanrao Majumdar Vs. The State of Bombay and Another, AIR 1961 SC 288 : (1961) 1 SCR 943
  4. Smt. Jodhayan Vs. Babu Ram and Others, AIR 1983 SC 57 : (1982) 2 SCALE 1061 : (1983) 1 SCC 26 : (1983) 1 SCR 844 : (1983) 15 UJ 15
  5. Mareddi Venkata Rami Reddy Vs. Mareddi Adinarayana Reddy and Others, AIR 1960 AP 271

We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the Defendant has to be penalised for non filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the Plaintiff in view of the deemed admission by the Defendant, the Court can conveniently pass a judgment and decree against the Defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex-parte judgment without directing the Plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex-parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial. However, if the Court is clearly of the view that the Plaintiff’s case even without any evidence is prima facie unimpeachable and the Defendant’s approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit.

  1. C.N. Ramappa Gowda Vs. C.C. Chandregowda (Dead) by L.Rs. and Another, AIR 2012 SC 2528 : (2013) 4 CTC 865 : (2012) 3 RCR(Civil) 331 : (2012) 4 SCALE 541 : (2012) 5 SCC 265 : (2012) AIRSCW 2510 : (2012) 3 Supreme 137
  2. Balraj Taneja and Another Vs. Sunil Madan and Another, AIR 1999 SC 3381 : (1999) 6 JT 473 : (1999) 5 SCALE 400 : (1999) 8 SCC 396 : (1999) 2 SCR 258 Supp : (1999) AIRSCW 3345 : (1999) 8 Supreme 27

Legal position regarding the power of the Court to extend the period mentioned in Order 8 Rule 1 C.P.C. beyond the 90 days period

It is no longer rest integra. Notwithstanding the use of the word ‘shall’ in the said provision, it has been held that doctrine of harmonious construction is required to be applied to construe the provisions of Order 8 Rule 1 and Order 8 Rule 10 C.P.C. Court is given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such orders as it may think fit in relation to the suit. Court has the power and discretion to allow the defendant to file written statement even after expiry of a period of 90 days provided in Order 8 Rule 1 C.P.C. Reference in this connection may be made to Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), wherein the Court observed as under:

The use of the word ‘shall’ in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word ‘shall’, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to ‘make such order in relation to the suit as it thinks fit’. Clearly, Therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.

5. It would be seen that time is not to be extended in a routine manner since the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be used frequently and routinely so as to nullify the period fixed. Reference may also be usefully made to Kailash Vs. Nanhku and Others, , J.M. Overseas v. Vijay Kumar Mangla reported at (138) 2007 DLT 156 Delhi, Lalit Chandra Raisurana v. Arun Raisurana reported at AIR 2005 Jharkhand 39 and Nachipeddi Ramaswamy Vs. P. Buchi Reddy, .


The court shall pronounce the Judgment doesn’t mean Judgment to be passed in favourt of Plaintiff without Evidence.

According to Sub-rule (2) of Rule 4 of Order 22 Code of Civil Procedure, the judgment of courts shall contain concise statements of the case, points for determination, the decisions thereon and the reasons for such decisions.

If a written statement is not filed, Order 8, Rule 10 does not postulate a judgment to be pronounced and decree passed automatically. The judgment pronounced under Order 8, Rule 10 should indicate that Court has applied its mind to the merits of the case before decreeing the suit. Court in M/s. Kuvarp Industries v. State Bank of Mysore, ILR 1984 KAR 1086 : (AIR 1985 Kar 77) has held as under:

“Therefore, the principles laid down by this Court in the said case require that even in ex parte cases the Court should apply its mind to the allegations made in the plaint and should convince its conscience to find out as to whether the allegations made by the plaintiff are really sufficient and proved to the extent as to enable him to get a decree in the matter. The judgment and decree passed in this case, in my opinion, are not in consonance with law and rules at all. Therefore, the said judgment cannot be allowed to stand”.

In Maya Devi v. Lalta Prasad (2015) 5 SCC 588 : (AIR 2014 SC 1356), the Hon’ble Supreme Court has held as under:

“The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff’s claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial Court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha v. TELCO Ltd., will be sufficient. The failure to file a written statement. thereby bringing Order 8, Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8, Rule 10 CPC and on the invocation of Order 9 CPC, the Court is nevertheless duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted”.

  1. M/s. Kuvarp Industries Vs. State Bank of Mysore, ILR 1984 Kar 1086 : AIR 1985 Kar 77
  2. Maya Devi Vs. Lalta Prasad, (2015) 5 SCC 588 : AIR 2014 SC 1356

Whether judgment shall be pronounced without recording reasons, the essential requisites of a judgment cannot be left out even in the’ judgment under Rule 10 merely because the Court has power to pronounce judgment against the party who fails to present written statement called for by the Court. Section 9 (2) defines ‘judgment’. to moan the statement given by the Judges of the grounds of a decree or order. Order 20 Rule 4, CPC provides that other than judgments of Small Cause Courts judgments of other Courts shall contain concise statement of the case, the points for determination, the decision thereon, and the reasons of such decision. That apart, the necessity to record reasons is a cardinal principle of rule of law while deciding a case affecting rights of the parties. The recording of reasons in deciding the case affecting rights of the parties is imperative and a mandatory requirement. The order or judgment affecting the rights of the parties should record relevant reasons which have been taken into consideration by the Court in coming to its final conclusion thereby enabling the parties seeking justice as well as the superior Court where an appeal lies to know the mind of the Court as well as the reasons for its findings.

Doubtful Plaint 

But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the Court may, in its discretion, require any such fact to be proved” used in Sub-rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8.

  1. C.N. Ramappa Gowda Vs. C.C. Chandregowda (Dead) by L.Rs. and Another, AIR 2012 SC 2528
  2. Balraj Taneja and Another Vs. Sunil Madan and Another, AIR 1999 SC 3381

Appeal and Revision

Rule 10 of Order 8 it was specifically provided that upon such judgment, under the above Rule 10 a decree shall be drawn up. As decree follows after judgment is passed under above Order 10, an appeal would lie u/s 96 Code of Civil Procedure. Therefore, the above Clause (b) of Rule 1 of Order 43 was omitted to prevent 2 appeals. According to Section 115 CPC this Court has jurisdiction to interfere in a case decided by subordinate court in which no appeal lies. As judgment passed under Order 8 Rule 10 is followed by a decree, such decree being appellable u/s 96 CPC a revision u/s 115 CPC is not maintainable.  Delhi High Court in Nand Gopal Bacchas and Others Vs. Bank of India, wherein the learned single judge held that against the judgment passed under Order 8 Rule 10 CPC no revision petition would lie as an appeal is maintainable.

  1. N. Jayaraman Vs. Glaxo Laboratories India Ltd., Madras, AIR 1981 Mad 258 : (1981) 94 LW 362
  2. A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
  3. M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161
  4. Nand Gopal Bacchas and Others Vs. Bank of India, AIR 1982 Delhi 280 : (1982) 21 DLT 323 : (1982) 3 DRJ 228 : (1982) RLR 287

It is a fact that the opposite party No. 1 did not file written statement despite numerous opportunities given to him by the learned court below and even on the date of ex parte hearing only a petition for adjournment of the ex parte hearing was filed. If the learned court by reason of the defendant’s failure to file written statement treated the claims of the plaintiff as admitted and pronounced judgment even then a petition under Order 9 Rule 13 would lie for setting aside the decree passed under Order 8 Rule 10 instead of preferring appeal. There is, however, difference in opinion among some High Courts as to whether decree passed under Order 8 Rule 10 CPC can be treated as an ex parte decree for setting aside which an application under Order 9 Rule 13 CPC shall lie. According to Delhi High Court a decree which is passed by the Court against the defendant who appears but fails or neglects to file written statement within the time granted by the court cannot be said to be an ex parte decree and cannot be set aside under Order 9 Rule 13 CPC. (Traders Bank Ltd. vs. Avtar Singh reported in AIR 1988 Del, 55). In Ramesh vs. Corporation reported in AIR 1987 Calcutta 111 it was held that if written statement was not filed within time, the trial court could accept it even at the stage when ex parte hearing is concluded and the matter is adjourned for delivery of judgment.

In M/s. Kuvarp Industries vs. State Bank of Mysore reported in AIR 1985 Kar 77 it has been held that the insertion of the word ‘decree’ in Rule 10 is meant to give an alternate relief under Order 9 Rule 13 CPC instead of driving the party to a regular appeal.

 In A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, it has been observed that there is nothing to indicate that the need to write a speaking and reasoned judgment is dispensed with. There is no indication that a decree passed under this Rule cannot be ex parte.

 In M. Manick Peter and Others Vs. K. Surendranathan, it has been held that a petition under Order 9 Rule 13 is maintainable against the decree passed under Order 8 Rule 10.

  1. A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
  2. M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161

Calcutta High Court allowed Cross-examination by Defendant failed to file WS


Meaning of So-called Ex-party:

If the judgment and decree are pronounced under Order 8 Rule 10 (amended), then the party would have a right to proceed under Order 9 also. Then the question would arise whether the word ‘hearing’ used in Rule 2, and Rule 3 has got a separate connotation. Order 8 of the CPC relates to the filing to the written statement, set off and counter claim. Rule 1 says that the defendant shall at or before the first hearing or within such time as the Court may permit a written statement of his defence. Therefore, the word ‘hearing’ used in Order 8 Rule 1, CPC says that the stage of hearing starts from the moment the defendant puts in his appearance in the Court after being served with summons. Therefore the word ‘hearing’ used in Rule 2 and Rule 3 of Order 17, CPC also would have the same meaning. If it is so then any judgment or decree passed under Order 8 Rule 10 would clearly amount to a judgment and decree popularly called as ex parte judgment and ex parte decree. The word ‘ex parte’ only means that pronounced in the absence of a party. It has not got any other meaning. If it is so, then Order 9 Rule 13, CPC would be applicable even to a case where a judgment and decree have been passed under Order 8 Rule 10, CPC.

  1. N. Jayaraman Vs. Glaxo Laboratories India Ltd., Madras, AIR 1981 Mad 258 : (1981) 94 LW 362
  2. Nand Gopal Bacchas and Others Vs. Bank of India, AIR 1982 Delhi 280 : (1982) 21 DLT 323 : (1982) 3 DRJ 228 : (1982) RLR 287

The expression “ex-parte decree” has not been defined in the Code and therefore, the aforesaid expression has to be understood in the context it is used. Order 8 Rule 10 of the CPC provides that in case the defendant fails to present the written statement within the time permitted or fixed by the Court, the court shall pronounce judgment and on the pronouncement of such judgment a decree shall be drawn. Thus a decree passed under Order 8 Rule 10 of the Code when written statement is not filed is an exparte decree. We are of the opinion that in the face of the language of Order 8 Rule 10 of the CPC and that of Order 9 Rule 13 restricted meaning to the words “ex-parte decree”, is not fit to be given. It is worth mentioning that Order 9 Rule 13 uses the expression “in any case” and in the background thereof, it is difficult to hold that a degree passed in terms of Order 8 Rule 10 of the Code is not an ex-parte decree and not covered under Order 9 Rule 13 of the Code.

  1. A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
  2. M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161
  3. Gujrat Co-operative Oil Seeds Growers Federation Vs. Smt. Ramesh Kanta Jain, AIR 1994 Delhi 367 : (1995) ILR Delhi 735

Limitation and Res Judicata

In Arjun Singh Vs. Mohindra Kumar and Others, . Their Lordships of the Supreme Court while considering the principle of res judicata with respect to the order passed under Order 9, Rules 7 and 13, held:

Order 9, Rule 7 does not put an end to the litigation nor does it involve the determination of any issues in controversy in the suit. A decision or direction in an interlocutory proceeding of the type provided for by Order 9, Rule 7 is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under Order 9, Rule 13″In Kamal Singh Vs. Sat Pal, in para 4 it was held:

The defendant against whom an order declaring him to be proceeded ex parte was passed on the date of the first hearing is entitled to come in and take part in the trial at a later stage. If he agrees to be bound by what has taken place during his absence he need not make an application under Order 9, Rule 7, C.P.C. for getting the order set aside. He can continue from the stage at which he appears. However, if he desires to cross-examine the witnesses examined before he entered appearance he can apply under Rule 7, of Order 9 and get an order, in which case he can claim an opportunity to cross examine the witness examined before he entered appearance. In such a case, he seeks to be relegated back to the position he would have been if he were present on the day on which evidence was taken in his absence. Had he been so present, he would have got an opportunity to cross-examine the plaintiff’s witnesses. This is the right which he can exercise after getting an order under Order 9, Rule 7, C.P.C.

In the said case, reliance was placed on the decision in Kumara Pillai Vs. Thomas, . In Delhi Development Authority Vs. Shanti Devi and Another, .

Under the Limitation Act no period is prescribed for filing an application for setting aside the order proceeding ex parte. Under Rule 7 of Order 9 of the Code the defendant is allowed to file an application at or before the next date of file an application at or before the next date of hearing and if he assigns good cause for his non-appearance on the previous date of hearing the Court may set aside the order proceeding exparte… There is no rule that an application under Order 9, Rule 7 is to be filed within 30 days from the date of the order proceeding ex parte…

In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, after extracting the relevant provision Order 9, Rule 7, Order 8, Rule 10, Their Lordships observed:

We have seen that if the defendant does not appear at the first hearing, the Court can proceed ex parte, which means that it can proceed without a written statement; and Order 9, Rule 7 makes it clear that unless good cause is shown the defendant cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences entailed by Order 8, Rule 10 must be suffered.

What those consequences should be in a given case is for the Court, in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases, an order awarding costs to the plaintiff would meet the ends of justice; an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic.

Thus, it is clear from the above decisions, there is no limitation for filing a petition under Order 9, Rule 7, Code of Civil Procedure. Further the question of filing written statement also does not arise as the first defendant is only adopting the written statement filed by her daughter and she wants to give evidence in support of her case. The suit is filed only on the basis of an alleged oral agreement between her and the plaintiff and the same is disputed by her even prior to the filing of the suit by issuing a reply notice and as such no prejudice would be caused to the other side. Further, she was in Malaysia at the time when the summons was served on her. In the circumstances, it cannot be said that the discretion used by the court below in allowing the application under Order 9, Rule 7, C.P.C. is illegal or improper.

  1. Kikishru Nadershaw Chinoy Vs. Nargesh Kikishru Chinoy Nee Nargesh Dorabji Tarapore, AIR 1942 Mad 159
  2. Nataraja Pillai (died) and Another Vs. Appasami Naidu, (1949) 62 LW 328 : (1949) 1 MLJ 523
  3. Gokarakonda Venkatasubbiah Vs. Daliparthi Lakshminarasimham, AIR 1925 Mad 1274 : (1925) 49 MLJ 273
  4. Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 : (1955) 2 SCR 1
  5. Arjun Singh Vs. Mohindra Kumar and Others, AIR 1964 SC 993 : (1964) 5 SCR 946
    Kamal Singh Vs. Sat Pal, AIR 1986 P&H 19
  6. Kumara Pillai Vs. Thomas, AIR 1961 Ker 287
  7. Delhi Development Authority Vs. Shanti Devi and Another, AIR 1982 Delhi 159 : (1981) 20 DLT 415

Practice Guidelines by Gauhati High Court

Order 8 Rule 10 CPC reads:

 Procedure when party fails to present written statement called for by Court. – Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.

A perusal of the provisions as quoted above will make it clear that such a course can be adopted only when a party fails to present a written statement called for by the Court. Here in the present case, as I have already mentioned above that there is no order to the effect that the Defendants were required/directed to submit their written statement. If such a course is adopted then there will be no scope for exparty hearing as provided under Order 9 Rule 6 of CPC Not only this Order 13 Rule 1 will also be ignored in case such a slip-short manner is allowed to be continued. Order 13 CPC reads:

Documentary evidence to be produced (at or before the settlement of issues ) – 1. The parties or their pleaders shall produce, (at or before the settlement of issues ), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all document which the Court has ordered to be produced.

(2) The Court shall receive the document so produced; provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

 In view of the above provisions it is required that  after receipt of the written statement the Court is to fix a date for submission of the relevant document and the Court shall receive those documents if they are accompanied by an accurate list (firisti index etc.)

 It is however, true that document on which the Plaintiff’s suit is based are to be produced along with the plaint (Order 7 Rule 14) and the Defendants are also required under Order 8 Rules 8-A(1) to produce the relevant documents along with the written statement. But thereafter comes the provision of Order 11 Rule 15 which enables each party for inspection of the documents. The Order 11 Rule 1 also enables a party to obtain from his opponent material facts or information as to the documents or admission which will support his information or damage his opponent’s case. Therefore, by virtue of this provision a party is entitled to submit interrogatories.

EXECUTION OF DECREE [ALLAHABAD HC]

Whether the decree, on the basis of an order, which is not a judgment, is executable ?

This question was considered by the Allahabad High Court in Amod Kumar Verma Vs. Hari Prasad Burman and Others, AIR 1958 All 720 , where it was held that such a decree is nullity by observing as under :–

“There is no judgment pronounced by the trial Court. It has only passed an order refusing to set aside the award and at once passed a decree. The decree is null and void in the absence of a Judgment. After refusing to set aside the award the trial Court ought to have pronounced a judgment on the merits of the disputes between the parties as settled by the award.”

Union-of-india-uoi-vs-swastic-construction-company-and-others[JKHC]


What shall not be done in any case

The question which, therefore, arises for consideration is under what circumstances the first course, viz, pronounce judgment is to be adopted. There may be cases where the claims are barred by limitation; there maybe cases where plaint of the plaintiff, or setoff or counterclaim of the defendant, is not in accordance with law. Even then, if the penalty provided under Rub 10 is to be imposed by pronouncing judgment irrespective of the merits of the case, it will cause a great injustice in the given case. The appellate Court shall also find difficult to interfere with the judgment on merits, except on the question whether the discretion to adopt the first course has been exercised properly, as under Rule 10 the judgment should always be against the party failing to present written statement irrespective of the merits of the case. Although, law is that every allegation of facts in the pleading, if not denied, shall be taken to be admitted, the Court may in its discretion require any fact so admitted to be proved. Therefore, this power of the Court has to be exercise in rare and exceptional cases after applying its mind to the facts and circumstances of the case.


TRIPURA GRAMIN BANK Vs. BIJAN BHATTACHARJEE AND OTHERS [GHC] – 09/12/1997

Documentary evidence to be produced (at or before the settlement of issues ) – 1. The parties or their pleaders shall produce, (at or before the settlement of issues ), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all document which the Court has ordered to be produced.

(1998) 1 GauLJ 81 : (1998) 1 GauLT 347

GAUHATI HIGH COURT

(AGARTALA BENCH)

SINGLE BENCH

( Before : N.G. Das, J )

TRIPURA GRAMIN BANK Vs. BIJAN BHATTACHARJEE AND OTHERS 

Civil Revision No. 10 of 1997

Decided on : 09-12-1997

Civil Procedure Code, 1908 (CPC) – Order 11 Rule 1, Order 11 Rule 15, Order 13 Rule 1, Order 7 Rule 14, Order 8 Rule 10, Order 8 Rule 8A(1), Order 9 Rule 6, Section 115, Section 115(1)

Cases Referred

The Rajasthan Golden Transport Co. (Pvt.) Ltd. Vs. Avon Footwear Industries Pvt. Ltd., AIR 1986 Delhi 286 : (1986) 29 DLT 442

Counsel for Appearing Parties

B.B. Deb and A.K. Deb, for the Appellant; K.N. Bhattacharjee, S. Bhattacharjee and S.B. Dutta, for the Respondent

JUDGMENT

N.G. Das, J.—This application in revision u/s 115 of CPC is directed against the order of learned Civil Judge (Senior Division), Kailashahar, North Tripura dated 14.11.1996 passed in T.S.30 (Mortgage)/1993.

2. I have heard Mr. B.B.Deb, the learned senior counsel appearing on behalf of the Petitioner and Mr. K.N. Bhattacharjee, the learned senior counsel appearing on behalf of the Respondents.

3. To appreciate the contentions canvassed at the bar by learned Counsel for the parties the impugned order which is a very short one may be extracted as under:

Ld. Counsel for the parties are present. No witnesses is present either parties. Both parties separately prays for adjournment for the reasons stated in their petitions. Heard and considered. However both the prayers are allowed hence compel to adjourned the case today with a direction to the parties to lead oral and documentary evidence if any, for the next positively.

Ld. Counsel for the Plaintiff submits that the pltff. filed an application/interrogatories in writing on 13.6.96 with copy to the other party.

Heard Ld. Counsel for the Plaintiff on that application. But it appears to the Court that the so-called interrogatories were filed by the Plaintiff in belated stage therefore, liable to be dismissed. Hence the petition dated 13.6.96 of the Plaintiff stands rejected.

To 20.12.96 for P.H. (Evidence of both parties ).

4. Mr. K.N.Bhattacharjee, the learned senior counsel appearing on behalf of the Respondents has at the very outset submitted that such an application u/s 115 of CPC is not maintainable chiefly because it is an interlocutory order and hence this order does not come within the purview of Section 115 of CPC for revision. Mr. Deb the learned senior counsel appearing on behalf of the Petitioner on the other hand, has contended that a bare perusal of the impugned order will show that learned trial Court rejected the prayer not because that the interrogatories which were submitted by the Plaintiff were not in conformity with the law but because those were, according to the Court, submitted at a belated stage.

5. Mr. K.N.Bhattacharjee has, however, placed reliance upon a decision of the Delhi High Court to show that such an interlocutory order is not revisable. The decision referred to by Mr. Bhattacharjee is a decision rendered in the case of The Rajasthan Golden Transport Co. (Pvt.) Ltd. Vs. Avon Footwear Industries Pvt. Ltd.,

6. I have gone through the judgment and I am of opinion that this decision does not say that each and every interlocutory order is not revisable. What is emphasized by the learned Judge is that such an interlocutory order is not revisable under the provision of Section 115 of CPC unless the order suffers from the infirmities specified in Clause (a) and or Clause (b) to the proviso. The substance of the observation of the learned Judge in this respect as would be available under para 13 of the judgment may be quoted as under:

The main object of delivering interrogatories by a party is to discover facts in order to facilitate the proof of his own case. However, the power to allow interrogatories to be administered by one party to another is always subject to the discretion of the Court. The discretion extends to allowing or refusing particular interrogatories. The Court of Appeal will not likely interfere with the Judge’s exercise of his discretion, unless he acts on a wrong principle. That besides, it is well-settled that interrogatories must be confined to the matter which are in issue or sufficiently material at the particular stage of the action at which they are sought to be delivered or to the relief claimed. The proviso to Order XI, Rule 1 in terms states that the interrogatories which do not relate to any matter in question in the suit shall be deemed irrelevant notwithstanding that they might be admissible on the oral cross-examination of a witness.

7. From the above quoted observation of the learned Judge it is clear that the trial Court passed the order on the application of the interrogatories on merit. It is also clear from the facts as stated under para 5 of the judgment that the learned Addl. District Judge vide impugned order granted leave to the Defendants to deliver interrogatories at Sl. Nos. 2, 3, 4 and 8 but disallowed the rest of the interrogatories. This fact clearly indicates that the learned Addl. District Judge i.e. the trial Court passed order on merit. Here the case is a little different and hence that decision does not help the Respondents.

8. Here on going through the order-sheets I find that the learned trial Court granted a good number of adjournments to the Defendants for filing written statement and thereafter by his order dated 18.11.95 the learned trial Judge allowed the Defendants time as a last chance to file written statement fixing the date on 15.12.95 for written statement/judgment under Order Rule 10 of CPC The order of learned Judge passed on 18.11.95 may be quoted as under:

Both the sides are present through their engaged counsel.

The Defendants pray for time to file the written statement.

It appears from the case records that sufficient time was given to the Defendants to file the written statement, but they did not do so on this or that pretext.

However, a last and last chance is given to the Defendants to file the written statement on the next date failing which the suit will be disposed of under Order 8 Rule 10 of CP Code.

To 15.12.95 for W. S/Judgment under Order 8 Rule 10 of the C.P.Code.

9. The case was accordingly taken up on 15.12.95 and on this date the learned trial Judge framed the issues fixing the suit on 20.1.1996 for P.H.

10. Now the question which needs consideration is whether the order which the learned trial Judge passed on 18.11.95 was in consonance with the provisions of CPC I have already stated above that the learned trial Judge fixed the date on 15.12.95 for written statement/judgment under Order 8 Rule 10 of Code of Civil Procedure. I really failed to understand how that date can be fixed for a judgment under Order 8 Rule 10 of CPC as the order-sheets do not indicate that the learned Judge from his own accord passed any order requiring the Defendants to file the written statement.

11. Order 8 Rule 10 CPC reads:

10. Procedure when party fails to present written statement called for by Court. – Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.

12. A perusal of the provisions as quoted above will make it clear that such a course can be adopted only when a party fails to present a written statement called for by the Court. Here in the present case, as I have already mentioned above that there is no order to the effect that the Defendants were required/directed to submit their written statement. If such a course is adopted then there will be no scope for exparty hearing as provided under Order 9 Rule 6 of CPC Not only this Order 13 Rule 1 will also be ignored in case such a slip-short manner is allowed to be continued. Order 13 CPC reads:

Documentary evidence to be produced (at or before the settlement of issues ) – 1. The parties or their pleaders shall produce, (at or before the settlement of issues ), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all document which the Court has ordered to be produced.

(2) The Court shall receive the document so produced; provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

13. In view of the above provisions I am of the view that after receipt of the written statement the Court is to fix a date for submission of the relevant document and the Court shall receive those documents if they are accompanied by an accurate list (firisti index etc.)

14. It is however, true that document on which the Plaintiff’s suit is based are to be produced along with the plaint (Order 7 Rule 14) and the Defendants are also required under Order 8 Rules 8-A(1) to produce the relevant documents along with the written statement. But thereafter comes the provision of Order 11 Rule 15 which enables each party for inspection of the documents. The Order 11 Rule 1 also enables a party to obtain from his opponent material facts or information as to the documents or admission which will support his information or damage his opponent’s case. Therefore, by virtue of this provision a party is entitled to submit interrogatories.

15. In the instant case, on going through the entire order-sheets I find that parties were not given any opportunity for filing interrogatories. I have already quoted the relevant order which will clearly show how in a slipshod manner the learned trial Judge jumped to pass an order under Order 8 Rule 10 Code of Civil Procedure.

16. In view of the infirmities pointed out above, I am, therefore, of opinion that even though the interrogatories were submitted at a belated stage the trial Court ought not to have rejected these on the simple ground that those were submitted at a belated stage.

17. Learned trial Judge did not dispose of the application of interrogatories on merit. Therefore, for the infirmities I have pointed out above, I am of the view that the learned trial Judge ought to have disposed of the application of interrogatories on merit.

18. It is true that powers of Revisions u/s 115 of CPC have been curtailed to a great extent by the last Amendment. But even then if any order is found to have suffered from the infirmities specified in Clause (a) or (b) to the proviso to Section 115(1) of CPC then in my opinion the High Court in its revisional jurisdiction u/s 115 of CPC can very well interfere with the order. In the instant case, from my above discussions of the facts it would be abundantly clear that learned trial Judge suddenly jumped to pass an order under Order 8 Rule 10 CPC without affording any opportunity to the parties for filing the documents/interrogatories etc.

19. For all these reasons, the impugned order is set aside and learned trial Judge is directed to dispose of the application for interrogatories on merit after hearing both the parties.

20. It is submitted by learned Counsel for the parties that such error/mistake are being committed regularly by the Courts-be low. I therefore consider it expedient to sent copy of this order to all the Civil Courts in Tripura.


 

RATHIN MAJUMDAR Vs. UTPAL GHOSH AND ANOTHER [CHC]-04/09/2000

In the instant case court at least could have allowed the defendant/ O/P/ No. 1 to cross-examine the P.W. 1 particularly when the ex parte order was not delivered and the same was adjourned to a different date without allowing the defendant to relegate the suit to an earlier stage. It is clear that the learned trial Judge did not pass an order under Order 8 Rule 10 treating the plaintiffs claim as admitted but passed an ex parte decree by recording ex parte evidence and for setting aside such a decree an application under Order 9 Rule 13 CPC is maintainable.

105 CalWN 64

CALCUTTA HIGH COURT

SINGLE BENCH

( Before : S.N. Bhattacharjee, J )

RATHIN MAJUMDAR — Appellant

Vs.

UTPAL GHOSH AND ANOTHER — Respondent

C.O. No. 2664 of 1995

Decided on : 04-09-2000

Civil Procedure Code, 1908 (CPC) – Order 8 Rule 10, Order 9 Rule 13, Section 115
Cases Referred

A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161
Counsel for Appearing Parties

Suchit Kumar Banerjee and Narayan Chandra Das, for the Appellant;

Jyotirmoy Bhattacharjee, for the Respondent

JUDGMENT

S.N. Bhattacharjee, J.—This application u/s 115 of CPC has been preferred against the Order No. 63 dated 28.8.95 passed by the learned Assistant District Judge, 2nd Court, Howrah in Misc. Case No. 3 of 1994. The petitioner herein filed Money Suit No. 2 of 1989 before the learned court below for recovery of Rs. 82,110/- against the Opposite Party Nos. 1 and 2. The O.Ps./defendants did not file written statement in spite of repeated adjournments granted in their favour. The learned trial Judge proceeded with the ex parte hearing of the suit rejecting the application of the defendants for adjournment. After recording ex parte evidence of P.W.1, the learned Trial Judge fixed 15.12.93 for ex parte order. On 15.12.93 as the business of the court did not permit 17.1.94 was fixed for order. On 14.1.94 the defendants filed three petitioners and the record was put up. The learned court dismissed the three petitions which are filed for vacating the order of ex parte hearing, for accepting written statement and for allowing the defendant No. 1 to cross-examine the plaintiff. By an order No. 45 dated 17.1.94 the ex parte decree was passed. Although the ordering portion runs thus:

That the instant suit be and the same is hereby decreed on contest and in the circumstances with cost. The plaintiff is found entitled to realise the sum of Rs. 82,110/- as per schedule of claim stated in the plaint. The defendants are directed to pay the said amount within 60 days from the date of this order in default the plaintiff is at liberty to have the same realised as per law.

2. On 10.2.94 the defendant No. 1 filed a Misc, Case No. 3 of 1994 under Order 9 Rule 13 CPC. The learned court below after having considered the previous orders passed by the court and the conduct of the defendant allowed the Misc. Case by its order No. 63 dated 28.8.95. This revisional application has been filed against this order.

3. It has been argued by the learned counsel for the petitioner that the learned court below in allowing the application for restoration of the suit acted illegally and with material irregularity having failed to consider that the suit was decreed on contest under Order 8 Rule 10 CPC and as such the provision under Order 9 Rule 13 has no application in the present case. He has further argued that the learned court below failed to appreciate that more than hundred adjournments were given to the O.P. of the defendant for filing written statement but the O.P. did not file the same even on the date of ex parte hearing. The learned counsel further submitted that as the O.P. No. 1 intended to file written statement and cross-examined the P.W. 1 after expiry of the ex parte proceedings the trial court was justified in rejecting the application and in proceeding with the hearing of the suit ex parte the learned court below ought not to have set aside ex parte decree. The learned counsel for the O.P. while supporting the order passed by the learned court in setting aside the decree has contended that the learned court below wrongly used the word ‘contested’ although at the beginning of the impugned order he proceeded with the suit ex parte. The learned counsel has further argued that this court in exercising revisional jurisdiction should not interfere with the impugned order whereby the O.P. has only been given an opportunity of hearing in the suit in the interest of justice and that there has not been any failure of justice.

4. It is a fact that the opposite party No. 1 did not file written statement despite numerous opportunities given to him by the learned court below and even on the date of ex parte hearing only a petition for adjournment of the ex parte hearing was filed. If the learned court by reason of the defendant’s failure to file written statement treated the claims of the plaintiff as admitted and pronounced judgment even then a petition under Order 9 Rule 13 would lie for setting aside the decree passed under Order 8 Rule 10 instead of preferring appeal. There is, however, difference in opinion among some High Courts as to whether decree passed under Order 8 Rule 10 CPC can be treated as an ex parte decree for setting aside which an application under Order 9 Rule 13 CPC shall lie. According to Delhi High Court a decree which is passed by the Court against the defendant who appears but fails or neglects to file written statement within the time granted by the court cannot be said to be an ex parte decree and cannot be set aside under Order 9 Rule 13 CPC. (Traders Bank Ltd. vs. Avtar Singh reported in AIR 1988 Del, 55). In Ramesh vs. Corporation reported in AIR 1987 Calcutta 111 it was held that if written statement was not filed within time, the trial court could accept it even at the stage when ex parte hearing is concluded and the matter is adjourned for delivery of judgment.

5. In M/s. Kuvarp Industries vs. State Bank of Mysore reported in AIR 1985 Kar 77 it has been held that the insertion of the word ‘decree’ in Rule 10 is meant to give an alternate relief under Order 9 Rule 13 CPC instead of driving the party to a regular appeal.

6. In A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, it has been observed that there is nothing to indicate that the need to write a speaking and reasoned judgment is dispensed with. There is no indication that a decree passed under this Rule cannot be ex parte.

7. In M. Manick Peter and Others Vs. K. Surendranathan, it has been held that a petition under Order 9 Rule 13 is maintainable against the decree passed under Order 8 Rule 10.

8. In the instant case court at least could have allowed the defendant/ O/P/ No. 1 to cross-examine the P.W. 1 particularly when the ex parte order was not delivered and the same was adjourned to a different date without allowing the defendant to relegate the suit to an earlier stage. It is clear that the learned trial Judge did not pass an order under Order 8 Rule 10 treating the plaintiffs claim as admitted but passed an ex parte decree by recording ex parte evidence and for setting aside such a decree an application under Order 9 Rule 13 CPC is maintainable. The learned court below while setting aside the ex parte decree took note of all the facts and in order to render the substantial justice set aside the ex parte decree by stating cogent reasons. The learned court found that when the application of the defendant/O.P. praying for adjournment of ex parte hearing was rejected by the erstwhile Presiding Officer of the court the O.P. had sufficient reason for non-appearance on the date of ex parte hearing. Thus in arriving at this decision by assigning cogent reasons the learned court below did not commit any jurisdictional error and this court sitting in revisional jurisdiction does not see any justification to interfere with the same. I am also of the opinion that by setting aside the ex parte decree the learned court below did not act with any material irregularity. The order impugned, therefore, does not call for any interference. The revisional application is without any merit and accordingly it is dismissed without any order as to costs. Let xerox certified copy of this order be given to the Id. Advocates for courts parties.

Final Result : Dismissed

Subhra Mukherjee vs M/S. Bengal Media Pvt. Ltd-10/01/2014[CHC]

Order 8 Rule 10 of the Code of Civil Procedure should not act blindly on the averments made in the plaint and passed a judgment merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein.

CALCUTA HIGH COURT [ ORIGINAL SIDE ]

Subhra Mukherjee vs M/S. Bengal Media Pvt. Ltd

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

Present : The Hon’ble Justice Soumen Sen

C.S. 173 of 2013

For the plaintiff : Mr. Jishnu Chowdhury,
Md. Arif
Mr. Soumabha Ghose

Heard on : 26.11.2013, 29.11.13, 03.12.13,
10.12.2013, 17.12.2013, 06.01.2014,
07.01.2014, 09.01.2014,

Judgment on : 10th January, 2014

Soumen Sen, J:– The plaintiff has instituted the suit for recovery of possession of the Scheduled portion of Premises No.63, Rafi Ahmed Kidwai Road, Kolkata – 700 016 as described in Schedules A and B to the plaint and other monetary reliefs. The owner of 5000 sq.ft. super built up area on the second floor and 120 sq. ft. area on the roof of Premises No.63, Rafi Ahmed Kidwai Road, Kolkata – 700 016 (hereinafter referred to as ‘first demised portion’) and 1000 sq. ft. super built up area on the ground floor of the said premises (hereinafter referred to as ‘second demised portion’). The plaintiff demised the said portion of the premises to the defendant by and under three documents, namely, 31st October, 2009 and 1st July, 2011 in so far as it relates to the first demised portion and 16th July, 2010, with regard to the second demised portion.

Until determination of the tenancies, the defendant was paying Rs.1,32,000/- per month in respect of the first demised portion and Rs.45,000/- with the regard to the second demised portion. Due to default in making payment of rents in respect of both the demised portions, the plaintiff issued three several notices all dated April 25, 2013, under Section 106 of the Transfer of Property Act and called upon the defendant to quit, vacate and make over khas and vacant possession of the aforesaid tenanted portions within 15 days from the date of the receipt of the said notice. The defendant received the said notices on 25th April, 2013. However, the defendant had failed and neglected to make over possession of the demised portions to the plaintiff. Hence this suit.

In spite of service of writ of summons, the defendant did not enter appearance in the suit. The report of the Deputy Sheriff dated 28th November, 2013 shows that writ of summons have been duly served upon the said defendant. In spite thereof, the said defendant had failed to appear and contest the proceeding.

Although the plaintiff is not obliged to adduce any evidence in view of the failure of the defendant to appear and contest the proceeding in spite of opportunities being given to the said defendant to appear and contest, the plaintiff appears in person as a witness and produced documents to establish her claim in the suit.

The plaintiff has produced oral and documentary evidence to substantiate her claim in the suit. The witness has stated in her deposition that she is the owner of the property in question. The defendant is in occupation of 6120 sq.ft. under two several tenancies. The total rent was Rs.1,77,000/- but after deduction of TDS the plaintiff received Rs.1,60,000/-. The defendant has failed and neglected to pay rent since February, 2013. All the rents collected during the subsistence of the tenancy were deposited with the ICICI Bank, Bhabanipur Branch. In view of the failure to deposit rent, the said two tenancies were terminated by three several notices dated 25th April, 2013 duly signed by the plaintiff. The plaintiff duly identified the signature. The notices were served upon the officers present in the office of Bengal Media Pvt. Ltd. at 63, Rafi Ahmed Kidwai Road, Kolkata tendered by the plaintiff personally.

The copies of the notices were exhibited being Exhibit A (collectively) which would show that the notices were duly served and received by the defendant by putting seal and stamp of the defendant on such notices.

The plaintiff, however, claims that the defendant has failed to pay the electricity and maintenance charges being a sum of Rs.9,32,783/- and Rs.40,000/- respectively. The plaintiff has also claimed mesne profits at the rate of Rs.40,800/- per diem on and from 10th May, 2013. The plaintiff has stated that the agreements dated 31st October, 2009 and 1st July, 2011 in so far as it relates to the first demised portion, are unstamped and unregistered and in so far as the second demised portion is concerned, the agreement dated 16th July, 2010 was termed as leave and licence agreement which had expired on 15th January, 2011 and, thereafter, a monthly tenancy was created upon tendering acceptance of rent at Rs.45,000/- per month. On the basis of the oral and documentary evidence it appears that the defendant is in possession of the suit premises under an unregistered lease and it becomes a tenancy from month to month terminable on the part of either of the parties by 15 days’ notice expiring with the end of a month of the tenancy in terms of Section 106 of the Transfer of Property Act. The ground for termination of the lease appears to be that the defendant has failed to pay the rent since February, 2013. The witness has stated that the last rent received from the defendant was in the month of January, 2013 for a sum of Rs.1,60,000/- after deduction of TDS. Non-registration of the document usually causes two consequences. One is that no lease exceeding one year can be considered to be created and secondly the instrument becomes useless so far as creation of the lease is concerned. Nonetheless, the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the Court to determine whether there was, in fact, a lease otherwise than through such deed.

A lease month by month is determinable either by the lessor or lessee by 15 days’ notice expiring with the end of the month. The lessor is not required to give any reason for determination of such lease. However, the plaintiff would be required to establish such claim. There would not be much difficulty in establishing that arrears of rent had fallen due. The witness has said that the composite rent receivable in respect of the demised portions of the premises is Rs.1,60,000/- after deduction of TDS. However, the plaintiff has failed to establish that the aforesaid sum is not inclusive of maintenance charges. The agreement, on the basis of which the claim on account of maintenance and electricity charges has been made, is not disclosed and not accepted.

The notice terminated the tenancy under Section 106 has been duly served in the mode and manner has required under the said section upon the defendant and the defendant notwithstanding the receipt of such notices did not controvert the statements made in the said notices, not the said defendant is contesting the suit, the Court requires the plaintiff to establish its claim on account of maintenance and electricity charges.

Although, it was open for the Court to exercise its power under Order 8 Rule 5 of the Code of Civil Procedure in view of absence of specic denial to the pleadings of the plaintiff and to take the facts stated in the plaintiff as admitted the Court in its discretion required certain facts to be proved in this proceeding otherwise than by such admission in its anxiety to ensure that merely by absence in finding and/or decision arrived at by this Court may not cause any prejudice to the non- appearing and non-contesting defendants. In fact, in a recent decision reported in 2013 (4) SCC 396 (Shantilal Gulabchand Mutha Versus Tata Engineering And Locomotive Company Limited & Another), the Hon’ble Supreme Court considering the provisions of Order 8 Rule 10 of the Code of Civil Procedure stated that the Court should be little cautious of any proceeding under Order 8 Rule of the Code of Civil Procedure and should not act blindly on the averments made in the plaint and passed a judgment merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. It was stated that before the judgment is passed, it must be ensured that even if the facts set out in the plaint are treated to have been admitted, a judgment would possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of court’s satisfaction and, therefore, only on being satisfied that there is no fact which need to be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who failed to file the written statement. However, if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaintiff itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. (Balraj Taneja v. Sunil Madan; AIR 1999 SC 3381) The evidence of Lalit Mohan Patra, the second witness on behalf of the plaintiff with regard to maintenance and electricity charges appears to be unconvincing and by and large hearsay. The plaintiff has failed to prove its claim on account of maintenance and electricity charges. There is no evidence on record to show that the maintenance and electricity charges constitute components of the rent. It is also not the plaintiff’s case that the electricity consumed by the defendant has been paid by the plaintiff on account of the defendant to the CESC Ltd. and the claim on account of electricity is for reimbursement purpose only. In view thereof, this Court is not inclined to pass any decree on account of maintenance and electricity charges. However, on the basis of the evidence on record, the plaintiff is entitled to a decree for recovery of khas possession of the demised portions as mentioned in Schedule A and Schedule B of the Plaint.

The plaintiff has not adduced any evidence in support of its claim for mesne profits. The learned Counsel appearing on behalf of plaintiff, however, submits that since the tenancy has been determined only recently and the last rent paid represents a reasonable letting out value of the said premises, the Court may determine mesne profits at the rate of Rs.1,77,000/- per month from 1st June, 2013 till recovery of possession. This Court accepts the submissions made on behalf of the plaintiff. Accordingly, there shall be a decree for recovery of khas possession of the demised portions as mentioned in Schedule A and Schedule B of the Plaint. There shall also be a decree for mesne profits at the rate of Rs.1,77,000/- per month from 1st June, 2013 till recovery of possession. The plaintiff shall also be entitled to a decree for a sum of Rs.3,54,000/- being the arrears of rent. The said amount shall carry interest at the rate of 8 per cent per annum till realization.

The Department is directed to draw up the decree as expeditiously as possible.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.

(Soumen Sen, J.)

Sopan Sukhdeo Sable and others Vs Assistant Charity Commissioner and others [ALL SC 2004 JANUARY]

KEYWORDS:- Rejection of Plaint

AIR 2004 SC 1801 : (2004) 1 SCR 1004 : (2004) 3 SCC 137 : JT 2004 (2) Suppl. SC 515 : (2004) 2 SCALE 82

(SUPREME COURT OF INDIA)

Sopan Sukhdeo Sable and others Appellant
Versus
Assistant Charity Commissioner and others Respondent

(Before : Doraiswamy Raju And A. Pasayat, JJ.)

Civil Appeal No. 448 of 2004 (arising out of SLP (Civil) No. 20366 of 2002), Decided on : 23-01-2004.

Civil Procedure Code, 1908—Order 6, Rule 2(1)—Pleadings—‘Material facts’ and ‘particulars’—Distinction—Explained.

There is distinction between ‘material facts’ and ‘particulars’. The words ‘material facts’ show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad.

The word ‘material’ shows that the fact necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.

The real object of Order VII, Rule 11 of the Code is to keep out of Courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII, Rule 11 of the Code can be exercised.

Counsel for the Parties:

V. A. Mohta Sr. Advocate M. D. Adkar; M. I. Pathan; Vishwajit Singh, Advocate with him, for Appellants.

A. V. Savant, Sr. Advocate Ravindra Kr. Adsure, S. G. Surpuriya, S. P. Shirsath, Surya Kant, Advocate (NP), S. S. Shinde, Mukesh K. Giri, Advocates with him, for Respondents.

Judgment

Arijit Pasayat, J—Leave granted.

2. The appellants who were plaintiffs in a suit filed before the learned Civil Judge, Senior Division, Srirampur have questioned legality of the conclusions arrived at by the Courts below holding that the plaint filed by them was to be rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure, 1908 (in short the ‘Code’). The plaintiffs claimed to be tenants under respondent No. 2, Shaneshwar Deosthan Trust (hereinafter referred to as the ‘trust’). Its trustees and the Assistant Charity Commissioner (in short the ‘Commissioner’) were the other defendants. Plaintiffs claimed that they were tenants of the trust of which the defendants Nos. 3 to 13 were the trustees. Alleging that they have been forcibly evicted notwithstanding continuance of the tenancy, the suit was filed for the following reliefs :

A) Plaintiff Nos. 1 to 17, be declared as the tenants of the properties described in the plaint belonging to temple Trust, of which defendant Nos. 2 to 13 are trustees.

B) Defendant Nos. 1 to 13, be permanently restrained by an order of injunction not to evict plaintiff Nos. 1 to 13, forcibly with the help of police and also not to interfere in their business being carried on by them in suit shops, and not to interfere in the possession of suit shops in any manner – whatsoever, either by themselves or by their servants, agents, relatives or anybody claiming through or under them.

C) Direct the defendant Nos. 2 to 13, to pay compensation for the loss caused to the plaintiffs on account of their acts of omission and commission as described in the plaint. Committed by them prior to the filing of the suit and during pendency of suit for the damage that may be caused to the plaintiffs.

D) Defendant No. 1 be directed to enquire into the illegal acts, committed by defendant Nos. 2 to 13, and issue appropriate direction to that effect.

3. The suit was numbered as R.C.S. No. 160/1997 in the trial Court. The stand of the plaintiffs-appellants essentially was that the tenancy was for a period of 11 years and not for 11 months as claimed by the trust. An application was filed by the trust raising a preliminary plea that the plaint is liable to be rejected under Order VII Rule 11 of the Code. With reference to Section 80 of the Bombay Public Trusts Act, 1950 (in short the ‘Act’) it was urged that no Civil Court had jurisdiction to decide or deal with any question which by or under the Act is to be decided or dealt with by any officer or authority under the Act and in respect of which the decision or order of such officer or authority has been made final and conclusive. The trial Judge framed two preliminary issues, i.e. (a) whether the suit was liable to be rejected under Order VII Rule 11 of the Code for want of cause of action, and (b) whether the suit was tenable against all the defendants. Findings in respect of the preliminary issues were recorded against the plaintiffs. A finding was recorded that the plaint does not disclose any cause of action and also in view of the specific provisions of the Act, the jurisdiction vests only with the District Court to give direction to Commissioner and in any event Section 80 of the Act took away jurisdiction of the Civil Court and the plaint was rejected. Challenging the judgment and decree dated 21-10-2000 passed by the learned Civil Judge, Senior Division , Srirampur, an appeal was preferred before the District Court which was numbered as Regular Civil Appeal No. 178 of 2000. The appeal was dismissed and the decree passed by the trial Court was confirmed by II Additional District Judge at Srirampur, Ahmed Nagar District. The matter was carried in Second Appeal before the High Court which by the impugned judgment upheld the findings recorded by the Courts below. Before the High Court, it was contended by the appellants that Sections 50, 51 and 80 of the Act had no application and the lease being for 11 years, the action of the trust in dispossessing the plaintiffs forcibly cannot have the approval of law. The stand of the trust was to the effect that the plaintiffs have not approached the Court with clean hands. They had tried to get relief from the High Court by filing a petition under Article 226 of the Constitution of India, 1950 (in short the ‘Constitution’). They failed to comply with the interim directions given by the High Court and before the date posted before the High Court for consideration of the interim orders, they filed the suit and prayed for injunction. Subsequently, the writ petition was withdrawn. The plaint filed by the plaintiffs did not disclose any cause of action and in any event the relief sought for could not have been granted by the Civil Court in view of the specific provisions contained in Sections 50, 51 and 80 of the Act. There was no forcible dispossession as claimed. The Courts below were justified in rejecting the plaint.

4. The High Court accepted the plea of the trust and dismissed the second appeal affirming the conclusions arrived by the Courts below.

5. In support of the appeal, Mr. V. A. Mohta learned senior counsel appearing for the appellants submitted that the Courts below have lost sight of the nuances of Order VII Rule 11 of the Code. Even if for the sake of arguments it is conceded that some reliefs were to be dealt with by the authorities under the Act, the reliefs were severable and the Civil Court had jurisdiction to deal with them. The dispute projected in the suit essentially related to the question of tenancy and the relationship between the plaintiffs and the defendant-trust vis-a-vis the question of tenancy, the term of tenancy are matters intermittently linked with these basic issues. Such issues cannot be decided by the authorities under the Act. Therefore, the rejection of the plaint under Order VII Rule 11 of the Code cannot be maintained in law. The plaintiffs were dispossessed illegally and a person dispossessed illegally was entitled to protection. A person without title but in ‘settled’ possession as against mere fugitive possession, can get back possession if forcibly dispossessed or rather if dispossessed otherwise than by due process of law.

6. Per contra, Mr. A. V. Savant, learned senior counsel appearing for the defendant-trust submitted that the Courts below have concurrently found it as a matter of fact that the plaint did not disclose a cause of action and the Civil Court had no jurisdiction to deal with a matter, specifically in view of what has been statutorily provided in Section 80 of the Act. With reference to the judgment of the High Court it was pointed out that the plaintiffs had not approached the Court with clean hands. They had adopted dubious methods, did not comply with the directions of the High Court for depositing the stipulated amount. By a ruse, some reliefs have been sought for in the plaint totally out of context with the main prayers which are to be dealt with in terms of Sections 50 and 51 of the Act. There were no pleadings about alleged forcible dispossession and wholly untenable plea about the period of tenancy has been rightly rejected by the Courts below. Clauses (a) and (d) of Rule 11 have full application to the facts of the case. The whole purpose of filing the suit was to somehow or other remains in possession of the shops which were leased out to them for certain periods. As a result of the actions of the plaintiffs, the trust would have been put to huge financial loss. All this according to him, disentitle the appellants from any relief under Article 136 of the Constitution.

7. Order VII Rule 11 of the Code reads as follows :

Order VII Rule 11 : Rejection of plaint.-

The plaint shall be rejected in the following cases :-

(a) where it does not disclose a cause of action :

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so :

(c) where the relief claims is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so :

(d) where the suit appears from the statement in the plaint to be barred by any law :

(e) where it is not filed in duplicate :

(f) where the plaintiff fails to comply with the provisions of rule 9.

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

8. In the present case the respondent-trust has relied upon clauses (a) and (d) of Rule 11.

9. Before dealing with the factual scenario, the spectrum of Order VII Rule 11 in the legal ambit needs to be noted.

10.In Saleem Bhai and others vs. State of Maharashtra and others, (2003) 1 SCC 557) it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane : the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

11.In I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal and others, (1998) 2 SCC 70 it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code.

12.The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. (See T. Arivandandam vs. T. V. Satyapal and another, (1977) 4 SCC 467.

13.It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi vs. Nachhattar Singh Gill, (1982) 3 SCC 487, only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.

14.In Raptakos Brett and Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184 it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII was applicable.

15. There cannot be any compartmenta-lization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

16. Submission of learned counsel for respondent No. 2 trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts. As indicated above. Order VI Rule 2 requires that pleadings shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim. If the plea of Mr. Savant, learned counsel for the respondent-trust is accepted the distinction between the statement of material facts and the reliance on them for the claim shall be obliterated. What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a-vis the pleadings would not mean compartmentalization or segregation, in that sense. The plea raised by the respondent-trust is therefore clearly unacceptable.

17. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order VII Rule 11 of the Code is to keep out of Courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised.

18. As noted supra, the Order VII Rule 11 does not justify rejection of any particular portion of the plaint, Order VI Rule 16 of the Code is relevant in this regard. It deals with, ‘striking out pleadings’. It has three clauses permitting the Court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court.

19. Order VI Rule 2 (1) of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

20. There is distinction between ‘material facts’ and ‘particulars’. The words ‘material facts’ show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between ‘material facts’ and ‘particulars’ was brought by Scott. L. J. in Bruce vs. Odhams Press Ltd., (1936) 1 KB 697 in the following passage :

The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word “material” means necessary for the purpose of formulating a complete cause of action; and if any one “material” statement is omitted, the statement of claim is bad; it is “demurrable” in the old phraseology, and in the new is liable to be “struck out” under R.S.C. Order XXV, Rule 4 (see Philipps vs. Philipps (1878) 4 QBD 127); or “a further and better statement of claim” may be ordered under Rule 7.

The function of “particulars” under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim – gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff’s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial.

The dictum of Scott. L.J. in Bruce case (supra) has been quoted with approval by this Court in Samant N. Bal-krishna vs. George Fernandez, (1969) 3 SCC 238, and the distinction between “material facts” and “particulars” was brought out in the following terms :

The word ‘material’ shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.

Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objection can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word “shall” is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.

21. According to Mr. Mohta appearing for the appellants, as noted above, the reliefs are separable and merely because some of the reliefs cannot be granted by the Civil Court it would entail an automatic rejection of the old plaint. In fact he submitted that some of the reliefs would be given up by the plaintiffs in the suit itself. It is true as contended by Mr. Savant learned counsel appearing for the respondent-trust by ingenious drafting a cause of action in the nature of red herrings cannot be brought into judicial arena. But a reading of the reliefs shows that some of them can only be considered by the Civil Court.

22. Under Order II, Rule 1 of the Code which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards. If the plaintiffs as contended by Mr. Mohta want to relinquish some reliefs prayer in that regard shall be done before the trial Court. A reading of the plaint and the reliefs along with the contents of the plaint goes to show that the main dispute relates to the question of continuance of tenancy and the period of tenancy. They are in essence unrelated with the other reliefs regarding enquiry into the affairs of the trust. Such enquiries can only be undertaken under Section 50 of the Act. For instituting the suit of the nature specified in Section 50, prior consent of the Charity Commissioner is necessary under Section 51. To that extent Mr. Savant is right that the reliefs relatable to Section 50 would require a prior consent in terms of Section 51. If the plaintiffs give up those reliefs claimed in accordance with law, the question would be whether a cause of action for the residual claims/reliefs warrant continuance of the suit. The nature of the dispute is to be resolved by the Civil Court. The question of tenancy cannot be decided under Section 50 of the Act. Section 51 is applicable only to suits which are filed by a person having interest in the trust. A tenant of the trust does not fall within the category of a person having an interest in the trust. Except relief in Para D of the plaint, the other reliefs could be claimed before and can be considered and adjudicated by the Civil Courts and the bar or impediment in Sections 50 and 51 of the Act will have no relevance or application to the other reliefs. That being so, Sections 50 and 51 of the Act would not have any application to that part of the relief which relates to question of tenancy, the term of tenancy and the period of tenancy. The inevitable conclusion therefore is that Courts below were not justified in directing rejection of the plaint. However, the adjudication in the suit would be restricted to the question of tenancy, terms of tenancy and the period of tenancy only. For the rest of the reliefs, the plaintiffs shall be permitted within a month from today to make such application as warranted in law for relinquishing and/or giving up claim for other reliefs.

23. Another plea which has been raised with some amount of vehemence by the appellant is the alleged forcible possession. This plea is strongly disputed by learned counsel for the respondent-trust who says that the possession was taken in accordance with law and as noted above, by voluntary surrendering by most of the tenants. Much of this controversy revolves from the date till the order of injunction passed by the trial Court operated.

24.There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession ‘if’ forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Yashwant Singh vs. Jagdish Singh (AIR 1968 SC 620), Krishna Ram Mohate vs. Mrs. Shobha Venkata Rao (1989) 4 SCC 131 at p. 136); Ram Rattan vs. State of U. P. (1977) 1 SCC 188 and State of U. P. vs. Maharaja Dharmender Prasad Singh (1989) 2 SCC 505. The leading decision quoted in these rulings is the decision of the Bombay High Court in K. K. Verma vs. Union of India (AIR 1954 Bom 358).

25.Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction? In Mahadeo Savlaram Sheike vs. Pune Municipal Corporation (1995) 3 SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction: L. C. Goyal ‘Law of injunctions’ : David Bean ‘Injunction’ Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha vs. MCD (1993) 3 SCC 161 wherein it was observed that injunction is discretionary and that :

“Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”

26.Reference was also made to Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words ‘prima facie case’ and ‘balance of convenience’ and observed in Mahadeo’s case (supra) that:

“It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.”

27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.

28. Learned counsel for the respondent-trust has urged with some amount of vehemence about the conduct of the plaintiffs in not depositing the arrears of money and the effect of 22 of the tenants out of total 44 tenants surrendering possession. This is a matter which can be considered in the trial itself so far as it is relevant. It was submitted by learned counsel for the trust that in any event the District Court was the only Court having jurisdiction and not the Court where the suit was filed. This aspect does not appear to have been specifically urged before the Courts below. So we do not think it appropriate to express our opinion thereon. As regards the question of arrears it shall be open to the respondent-trust to move the trial Court for such directions as are available in law. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.

Saleem Bhai and others Vs State of Maharashtra and others [All SC 2002 December]

KEYWORDS: Written statement- Rejection of Plaint-

AIR 2003 SC 759 : (2002) 5 Suppl. SCR 491 : (2003) 1 SCC 557 : JT 2002 (10) SC 558 : (2002) 9 SCALE 616

(SUPREME COURT OF INDIA)

Saleem Bhai and others Appellant
Versus
State of Maharashtra and others Respondent

(Before : S. S. M. Quadri And A. Pasayat, JJ.)

Civil Appeal No. 8518 with 8519 of 2002 (arising out of S.L.P. (C) No. 13234 with 14577 of 2002), Decided on : 17-12-2002.

Civil Procedure Code, 1908—Order 7, Rule 11—Rejection of plaint—Basis for—Application to be decided on allegations in plaint—Filing of written statement, irrelevant and unnecessary—Direction to file written statement without deciding application under Order 7, Rule 11 amounts to irregularity in exercise of jurisdiction.

A perusal of Order VII, Rule 11, CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order VII, Rule 11, CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Cls. (a) and (d) of Rule 11 of Order VII, CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7, Rule 11, CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity.

Counsel for the Parties:

T. R. Andhyarujina, R. F. Nariman, Kailash Vasdev, K. K. Venugopal, Sr. Advocates, S. V. Deshpande, G. D. Sule, Ms. Anuradha Rastogi, Murari Lal Pathak, Manish Pitale, Chander Shekhar Ashri, Rashid Haque, Arun Agarwal, Shakil Nawaz, Kuldip Singh, Pavan Kumar, K. S. Rana, S. S. Shinde, V. N. Raghupathy, W. A. Nomani, B. S. Banthia for S. K. Agnihotri, Advocates with him, for the Appearing Parties.

order

1. Leave is granted.

2. These appeals arise from the common order of the High Court of Madhya Pradesh (Indore Bench) in Civil Revision Petition Nos. 256 of 2002 and 257 of 2002 dated 7th May, 2002.

3. These cases have a chequered history but in the view we have taken, we do not consider it necessary to refer to the facts in any detail. Suffice it to say that respondent No. 7 in the appeal arising out of S.L.P. (C) No. 13234 of 2002 and the sole respondent in the appeal arising out of S.L.P. (C) 14577 of 2002 filed suits in February, 2002, out of which these appeals arise. The eighth defendant in the suits is the appellant in these two appeals. The said respondents-plaintiffs in the suits claimed, inter alia, the following relief :

“(2). That it be declared that the Judgment and Decree passed by the III Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 147 of 1967, Judgment and Decree passed by IV Additional District Judge, Nagpur in regular Civil Appeal No. 16 of 1987, and approving the same in the Judgment and Decree passed by the Hon’ble Bombay High Court, Bench at Nagpur in Second Appeal No. 132 of 1992, and while maintaining this Judgment and Decree, Judgment and Order passed by the Hon’ble Supreme Court in Special Leave Petition (Civil) No. 25004/96 and in Review Petition No. 1075/97 and order passed in various Revenue Case No. 8/1996-97, are illegal, not in existence, null and void and are not within the jurisdiction and therefore are not binding on the plaintiff.”

4. The appellant filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (for short, ‘the C.P.C.’) in the suits praying the Court to dismiss the suits on the ground stated therein. Before us, it is stated that the plaint is liable to be rejected under clauses (a) and (d) of Rule 11 of Order VII, C.P.C. While so, the said respondents also filed an application under Order VIII, Rule 10, C.P.C. to pronounce judgment in the suits as the appellant did not file his written statement. There was also an application by the appellant under Section 151, C.P.C. praying the Court to decide first the application under Order VII, Rule 11, C.P.C. By order dated 8th December, 2001, the learned trial Judge dismissed the application under Order VIII, Rule 10 as well as the application filed under Section 151, C.P.C. Insofar as the application under Order VII, Rule 11, C.P.C. is concerned, the learned Judge directed the appellant to file his written statement. Aggrieved thereby, the appellant filed aforementioned revision petitions before the High Court of Madhya Pradesh (Indore Bench). On May 7, 2002, the High Court, while confirming the order of the learned trial Judge, reiterated the direction given by the learned trial Judge that the appellant should file his written statement and observed that the trial Court shall frame issues of law and facts arising out of pleadings and that the trial Court should record its finding on the preliminary issue in accordance with law before proceeding to try the suit on facts. It is against this order of the High Court that the present appeals have been preferred.

5. Mr. T. R. Andhyarujina, learned senior counsel appearing for the appellant in the appeal arising out of S.L.P. (C) No. 13234 of 2002 and Mr. R. F. Nariman, learned senior counsel appearing for the appellant in the appeal arising out of S.L.P. (C) No. 14577 of 2002 have contended that having regard to the very nature of the relief claimed by the plaintiffs, the plaints are liable to be rejected under O. VII, Rule 11, C.P.C. and that the Court ought to have considered the said application on merits instead of giving direction to file written statement which would amount to not exercising the jurisdiction vested in the Court. It is further contended that the High Court also did not appreciate that the plaints do not show any cause of action and that the plaint ought to have been rejected as the suit is barred by the principles of res judicata and lis pendense.

6. Mr. K. K. Venugopal, learned senior counsel appearing for the respondents, on the other hand, drew our attention to various orders passed in earlier proceedings to show that the subject-matter of the property, Items 51 and 52 of the relinquishment deed were not suit properties in the earlier judgments, including the order passed by this Court and, therefore, neither the principle of res judicata nor the principle of lis pendense is attracted.

7. The short common question that arises for consideration in these appeals is, whether an application under O. VII, Rule 11, C.P.C. ought to be decided on the allegations in the plaint and filing of the written statement by the contesting defendant is irrelevant and unnecessary.

8. Order VII, Rule 11, C.P.C. reads as under :

“11. Rejection of plaint.- The plaint shall be rejected in the following cases :

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued by the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, failed to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9 :

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause great injustice to the plaintiff.”

9. A perusal of O. VII, R. 11, C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under O. VII, R. 11, C.P.C. at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Cls. (a) and (d) of R. 11 of O. VII, C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under O. 7, R. 11, C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects.

10. We are, therefore, of the view that for the aforementioned reasons, the common order under challenge is liable to be set aside and we, accordingly, do so. We remit the cases to the trial Court for deciding the application under O. 7, R. 11, C.P.C. on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law.

11. The civil appeals are, accordingly, allowed. There shall be no order as to costs.

Whether at the time of disposal of the application u/o 7 rule 11 of CPC only the facts mentioned in the plaint are to be looked into? yes.

 

The law has been settled by  Court in various decisions that while considering an application u/o 7 rule 11 of CPC, the court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. Vide C Natrajan v/s Ashim Bai and another,(2007) 14 SCC 183, Ra Prakash Gupta vs Rajiv Kumar Gupta and others (2007) 10 SCC 59, Hardesh Ores (P) Ltd vs Hede and Company, (2007) 5SCC 614, Mayar (H.K) Ltd. And others vs Owners & Parties, Vessel M V Fortune Express and others,(2006) 3SCC 100, Sopan Sukhdeo Sable and others vs Assistant Charity Commissioner and others ,(2004) 3SCC 137, Saleem Bhai and others vs State of Maharashtra and others, (2003) 1 SCC 557]. The above view has been once again reiterated in the recent decision of this curt in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee,2012(6) JT 149.”

 Their lordship of hon’ble Supreme Court in case The Church of Christ Charitable v/s M/s Ponniamman Educationql 2012(8) SCC 706, is pleased to hold that:­ “the appellant herein, as the first defendant before the trial judge, filed application u/o 7 rule 11 of CPC of the plaint on the ground that it does not show any cause of action against him, at the foremost, it is useful to refer the relevant provision.

It is clear from the above that where the plaint does not RCA: 56/2012 Praveen Kumar vs Nisha Verma 6Of 12 disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under order 7 rule 11 of CPC can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trail . This position was explained by this court in Saleem Bhai & ors vs State of Maharashtra and others ,(2003) 1SCC 557, in which , while considering Order 7 rule 11 of CPC, it was held as under:­ “9. A perusal of Order 7 rule 11 of CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power u/o 7 rule 11 of CPC at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial.

For the purposes of deciding an application under clauses(a) and (d) of Rule 11 of order 7of CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore a direction to file the written statement without deciding the application u/o 7 rule 11 of CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court…”.

It is clear that in order to consider order 7 rule 11, the court RCA: 56/2012 Praveen Kumar vs Nisha Verma 7Of 12 has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint.

While scrutinizing the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action” and cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.”

Their Lordship of hon’ble Supreme Court of India in case D Ramachandran V/s R V Janakiraman and others AIR 1999 SC1128: (1999) 1SCR 983:(1999) 3SCC 267:JT 1999 (2) SC94:(1999)1 SCALE 693 has held that:­ “We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well settled that in all cases of preliminary objection; the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made int he petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or triable issue as such. The court can not probe into the facts on the basis of the controversy raised in the counter.

Under order VI, rule 16, the court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or RCA: 56/2012 Praveen Kumar vs Nisha Verma 8Of 12 vexatious or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c)which is otherwise an abuse of the process of the court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified.

On the other hand, Rule 11 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O:A 36/97is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of O.VII, R.11(a) CPC the court cannot dissect the pleading into several parts and consider whether each one of theme discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill (1982) SCC 487. We are satisfied that the election petition in this case could not have been rejected in limine without a trial.

Tilak Raj Bhagat vs Ranjit Kaur & Ors. 2012 VAD(DELHI) wherein it has been held that it may be worthwhile to mention here that while considering an application under order 7 rule 11 of CPC , the court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made int he application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff.”

 

A direction given to file Written Statement without deciding the application under Order 7, Rule 11 of the said Code of 1908 was an irregular exercise of jurisdiction.

Bombay High Court

Decided on: 12 February 2004

Jaikisan S/O Jaynarayan Bhaiyya vs United Western Bank Ltd.

Equivalent citations: 2004 (5) BomCR 705, 2004 (2) MhLj 755

Bench: A Oka

1. By an Order dated 20th January, 2004 it was directed that the present petition shall be decided finally at the admission stage. I had called for the report of the Office for confirming that the present petition pertains to the jurisdiction of the Single Bench. Accordingly, the Office has submitted report. The petition was finally heard and the counsel for the Parties argued at length. The petition is taken up today for dictation of the judgment.

2. This petition under Article 227 of the Constitution of India has been preferred by the petitioner for challenging the order passed by the learned Presiding Officer of the Debts Recovery Tribunal, Nagpur (hereinafter referred to as the Tribunal) and the judgment and Order passed by the learned Chairperson of the Debts Recovery Appellate Tribunal, Mumbai (hereinafter referred to as the Appellate Tribunal).

3. The respondent Bank filed an Original Application No. 413 of 2001 against M/s S. N. K. Overseas Limited and six others including the present petitioner for recovery of a sum of Rs. 16,57,09,000.88/- with future interest @ Rs. 25% p.a. The present petitioner has been impleaded as defendant No. 4 in the said Original Application which was filed under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the said Act of 1993). The petitioner and the defendant No. 7 filed a Joint Written Statement. In the said Written Statement the petitioner contended that there was no cause of action for filing the Original Application against the petitioner and defendant No. 7. It was contended that the petitioner and defendant No. 7 being the Directors of the defendant No. 1 Company were not personally liable for the acts of the Company. It was also contended that the petitioners were not the guarantors for the loan transactions.

4. The petitioner made interlocutory application No. 588/02 in the said Original Application and contended that the petitioner has been unnecessarily impleaded in the said proceedings and the Original Application does not disclose any cause of action against the petitioner. The petitioner pointed out that he was one of the Directors of the defendant No. 1 Company with limited liability. The petitioner relied upon the Memorandums of Association and Articles of Association disclosing that the liability of the Members is limited. The petitioner also contended that he was only a nominal Director and has no share holding in the Company. The said Application was opposed only by the respondent Bank. The contention raised by the respondent Bank is that the defendant No. 1 Company has changed the name from time to time. It was contended that the defendant No. 4 was jointly and severally liable along with the other defendants and hence cannot be discharged from the liability. The said application was heard by the Tribunal, The petitioner filed Written Notes of Arguments. By judgment and Order dated 26th March, 2003, the Tribunal rejected the said application by holding that question of discharging the petitioner will be decided along with the merits of the case and it cannot be decided at preliminary stage. The petitioner was directed to pay costs of Rs. 5000/-. An appeal was preferred by the petitioner against the judgment of the Tribunal. The said appeal was dismissed. While dismissing the appeal, the learned appellate Tribunal held that there was no provision in the said Act of 1993 to decide any point as a preliminary issue and as such the issue raised in the interlocutory application by the petitioner cannot be decided as a preliminary issue and plea can be considered only when the Original Application is decided.

5. The learned counsel appearing for the petitioner relied upon the averments made in the Original Application by the respondent and pointed out that there is no pleading in the said application to indicate that the petitioner is liable to pay the dues payable by defendant No. 1 Company. The learned counsel relied upon the judgment of the Apex Court , I.T.C. Limited v. Debts Recovery Appellate Tribunal and Ors. and contended that by invoking the principles incorporated in Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code of 1908), the Tribunal ought to have decided the issue raised on merits. The learned counsel contended that the petitioner was neither the guarantor nor the signatory to any of the documents executed by or on behalf of the defendant No. 1 Company. The learned counsel also relied upon the judgment of the Apex Court reported in 2003(2) Mh.L.J. (SC) 529 – 2003(5) BCR 454, Saleem Bhai and Ors. v. State of Maharashtra and Ors. and contended that the application made by him ought to have been decided on merits. The learned counsel for the petitioner also relied upon a judgment of the Delhi High Court , Indian Overseas Bank v. R.M. Marketing and Services Pvt. Ltd.

6. The learned counsel for the respondent has supported the impugned Judgments and Orders. The learned counsel for the respondent contended that there was no provision in the said Act of 1993 for deciding any point as a preliminary issue. He submitted that the learned appellate authority was right when it was held that the issue raised was involving a mixed question of law and fact. He submitted that considering the fact that the tribunal established under the said Act of 1993 has been essentially established to ensure speedy disposal of the cases filed by the Financial Institutions it is not permissible to entertain such application at interim stage. The learned counsel relied upon Section 34 of the said Act of 1993 and submitted that the provisions of the said Act of 1993 have overriding effect. The learned counsel therefore, submitted that the reliance cannot be placed upon Order 7, Rule 11 of the said Code of 1908. He submitted that the facts of the case in the judgment relied upon by the petitioner were totally different. He submitted that the reliance cannot be placed on the said decision as the factual situation in the said cases was totally different.

7. I have considered the rival submissions of the parties. It is necessary to deal with the first submission made by the learned counsel for the petitioner based on Section 34 of the Act of 1993. Section 34 of the said Act of 1993 reads thus :

“34. Act to have overriding effect. — (1) Save as provided under Sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State Financial Corporations Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1985 (1 of 1986) and the Small Industries Development Bank of India Act, 1989 (39 of 1989). The learned counsel for the respondent relying upon the said provision contended that Order 7, Rule 11 of the said Code of 1908 will have no application to the proceedings before the Tribunal under the said Act of 1993.

8. Before the effect of the Section 34 is considered, it is necessary to refer to the judgment of the Apex Court relied upon by the petitioner in I.T.C. Limited. The said judgment arises out of a Civil Suit filed by a Bank for Recovery of amount. The said Civil Suit was transferred to a Tribunal which was established under the said Act of 1993. Before the Tribunal, an Application was filed under Order 7, Rule 11 of the said Code of 1908 for rejection of the plaint on the ground that no cause of action was disclosed in the Plaint against the applicant in the said application. The said application was rejected by the Tribunal by holding that same cannot be entertained at that stage as the same involves a mixed question of law and fact. The said Order was challenged by preferring an appeal which was dismissed by the appellate tribunal. The matter was taken to the Karnataka High Court by filing a Writ petition which was again rejected by the learned Single Judge of the said High Court by holding that the question raised has to be decided at the time of trial. A writ appeal was filed against the said decision before the Division Bench of Karnataka High Court which was dismissed by holding that at the stage of the application under Order 7, Rule 11 in order to find out whether the plaint did not disclose a cause of action, the Court should not look into anything except the plaint. It was also observed that after the issues were framed it was not desirable to consider the said application under Order 7, Rule 11 of the said Code of 1908. The matter was taken to the Apex Court by way of Special Leave Petition. The Apex Court held that :

“We, therefore, hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7, Rule 11 of the said Code of 1908”. After recording the said finding, the Apex Court proceeded to decide the question whether the plaint can be rejected by invoking the provision of Order 7, Rule 11 of the said Code of 1908. Thus, the Apex Court was dealing with the case where application under Order 7, Rule 11 of the said Code of 1908 made in an Original Application pending before the Tribunal at the stage when the issues were already framed. The said application under Order 7, Rule 11 of the said Code of 1908 was rejected by the tribunal on the ground that a mixed question of fact and law was involved and, therefore, such application cannot be entertained. The rejection of the said application by the Tribunal was confirmed by the appellate authority and by the High Court of Karnataka in writ petition as well in writ appeal. The Apex Court considering the provision of Order 7, Rule 11 of the said Code of 1908 held that even if issues are framed, the Application under Order 7, Rule 11 of the said Code of 1908 has to be considered. Rule 1 l(a) of Order 7 of the said Code of 1908 provides that the plaint shall be rejected where it does not disclose the cause of action. Therefore, when a case is made out before the tribunal that the plaint itself does not disclose the cause of action, the Apex Court held that such application should be considered even after the issues are framed obviously because while considering such an application the only thing which is to be seen is the averments made in the plaint. Thus, Apex Court held that when application under Rule 11 of Order 7 is made, it is required to be decided on merits. Therefore, even when the Apex Court in a judgment, Azhar Hussain v. Rajiv Gandhi while referring to power under Rule 7 of the Order 11 held that “the whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court.” In the other judgment of the Apex Court relied upon by the learned counsel for the petitioner in a case of Salim bhai the Apex Court has taken a view that the trial Court can exercise power under Order 7, Rule 11 of the said Code of 1908 at any stage before the conclusion of trial. The Apex Court also held that for the purpose of deciding the application under Clause(a) of Rule 1 of Order 7 of the said Code of 1908, the averments in the plaint are germane and the plea taken by the defendant in the Written Statement would be wholly irrelevant. The Apex Court held that a direction given to file Written Statement without deciding the application under Order 7, Rule 11 of the said Code of 1908 was an irregular exercise of jurisdiction.

9. Considering the view taken by the Apex Court especially in a case of I.T.C. Limited, the Tribunal ought to have considered the application of the petitioner on merits. Section 22(1) of the said Act of 1993 provides that the Tribunal shall not be bound by the procedures laid down in the said Code of 1908 but shall be guided by the principles of natural justice. It cannot be said that the Apex Court was not conscious of provision of Section 22(1) while taking the view which has been taken in the case of I.T.C. Limited. If the Apex Court in the case of I.T.C. Ltd. has taken a view that an Application under Order 7 Rule 11 of the said Code of 1908 ought to have been considered, it cannot be said that the tribunal had no power to entertain and decide an Application under Order 7, Rule 11. It cannot be overlooked that the Tribunal is bound by the principles of natural justice. When an application is made by a defendant before the Tribunal in which the contention is raised that no cause of action is disclosed in the plaint or in the Original Application for prosecuting the said proceeding against the defendant, the principles of natural justice require that such application should be heard on merits instead of directing the concerned defendant to face trial. Considering the application made by the petitioner there was no question of framing any preliminary issue as such as the petitioner had not called upon the tribunal to decide any issue. All that the Tribunal was called upon to do was to find out whether any cause of action against the petitioner was disclosed in the Original Application. If the Tribunal was required to go into the defence of the petitioner then the question of deciding preliminary issue would have arisen. Considering the Judgment of the Apex Court in the case of I.T.C. Ltd., the argument based Section 35 of the said Act of 1993 cannot be accepted.

10. In view of this position I have perused the averments made in the Original Application. In the Original Application the respondent has given history regarding the change of name of the defendant No. 1 Company. The application refers to various documents executed by and on behalf of the defendant No. 1 Company. The application gives particulars of the documents executed by the defendant No. 1 by way of security. In paragraph No. 7 under the Heading “Grounds of Relief it is stated that “As the defendants No. 1 to 7 have failed to repay jointly and severally the debts due to the applicant Bank in conformity with the terms and conditions of the Letter of Credit facility, the applicant Bank is entitled for Recovery Certificate and other reliefs as prayed above against the defendant Nos. 1 to 7”. It is further stated that in paragraph No. 7, that “The defendant Nos. 2 to 7 in spite of being Directors of the defendant No. 1 and being jointly and severally liable for repayment of the dues have deliberately neglected to take any positive steps and on the other hand are indulging in the acts of bad faith including disposing of the assets of defendant No. 1 Company and it is apprehended that they are doing the same in respect of their individual assets also.”

11. The averments in the original application show that it is not the case of the respondent that the petitioner is a signatory to any documents executed by or on behalf the defendant No. 1 which is a Limited Company. It is not the case of the respondent that the petitioner is a guarantor who has agreed to repay the amount advanced to the defendant No. 1. Nothing is pleaded in the application even to indicate as to how the petitioner is liable jointly and severally with the defendant No. 1 Company for repayment of the amount which was advanced to the defendant No. 1. What stated is that the defendants 2 to 7 are jointly and severally liable for repayment of the dues.
12. There is an averment in the Interlocutory Application No. 588/02 by which the petitioner has stated that he was a nominal Director having no share holding in the Company. Even the said fact is not disputed in the reply filed by the respondent to the said application. Even according to the case of the respondent, the petitioner is neither a borrower nor a guarantor.

13. It is not necessary for the respondent Bank to plead evidence against the petitioner in the Original Application. However, the cause of action against the petitioner has to be disclosed in the sense that the respondent must disclose as to how the petitioner is liable to repay the amount which was advanced to the defendant No. 1 Company by the respondent. A cause of action means a bundle of essential facts which is necessary for the plaintiff to prove before he can succeed. In the Original Application the averments are as regards the default committed by the defendant No. 1 company. Paragraph No. 5.21 of the application reads as under;

“5.21. The applicant submits that in spite of repeated assurances from the defendant No. 1 Company to liquidate the account in due course of time, another letter dated 28th September 2000 was received by the applicant styled as repayment of loan. By the said letter the defendant No. 1 Company shown its willingness to clear off all the dues as early as possible. The said letter is annexed herewith as Exh. No. 70.” Paragraph No. 5.24 of the Original Application reads as under :

“The applicant submits that considering the intentions of the defendant No. 1 Company of not paying the huge amount the applicant caused a legal notice through its Counsel on 9th November 2000, which was duly served on defendant No. 1 Company. The defendant No. 1 Company was called upon to liquidate the account within 21 days failing it was made very clear that the applicant may approach the Court for recovery of its dues along with interest. The postal acknowledgments of the notice are annexed herewith as Exh. Nos. 76 to 81 respectively and postal receipts are annexed herewith as Exh. Nos, 82 to 87. In spite of the fact that the notices were served on the defendants they did not bother to repay the amount nor they replied the said notice. A copy of the said notice is annexed herewith as Exh. No. 88. As such this claim has arisen and the applicant Bank became entitled to approach this Hon’ble Tribunal for various reliefs mentioned hereinafter.”
The allegations as regards the execution of the document are only against the defendants 2 and 3.

14. The learned counsel for the respondent stated that the reference to the defendant No. 2 and 3 has been made in the application as per the resolution passed by the Board of Directors. By the said resolution, the defendants 2 and 3 were authorised to sign the documents. The reading of the entire application shows that the entire cause of action which is pleaded is as regards the defendant No. 1 Company. Admittedly the defendant No. 1 Company was the Borrower. There is not even an averment in the application as regards the basis on which the liability of the present petitioner is alleged.

15. The Appellate Tribunal has observed that the Written Statement of the petitioner and defendant No. 7 is totally silent about the said contention. However, the said contention has been clearly raised in paragraph Nos. 33 and 34 of the Written Statement. In any case for dealing with an application under Order 7, Rule 11, the Written Statement was irrelevant. The judgment of the Apex Court in the case of I.T.C. was brought to the notice of the appellate tribunal. However, the appellate tribunal has not considered the same in proper perspective. The tribunal and appellate tribunal have not referred to the averments in the Original Application for ascertaining whether any cause of action is disclosed as against the defendant No. 4 in the said application. Merely because the name of the defendant No. 1 Company has undergone a change cannot be a ground not to consider the plea of the petitioner.

16. As per the case made out in the Original Application, the petitioner is neither a Borrower nor a Guarantor. The defendant No. 1 being a Company incorporated is a separate legal entity and unless a Director of the said Company is a surety or a guarantor, he cannot be fastened with liability to repay the loan advanced to the defendant No. 1 Company. Even assuming that the petitioner is a shareholder of the defendant No. 1 Company, his liability will be only to the extent of balance amount due on the shares held by him and that liability will arise only when call is duly made. The Original Application filed by the respondent does not disclose any cause of action against the petitioner.

17. Therefore, interference is called for in this petition under Article 227 of the Constitution of India as there is no clear illegality in the impugned Judgment.
18. Hence, I pass the following order.

i) The petition is allowed. No order as to costs.

ii) The impugned judgments and Orders are quashed and set aside. Interlocutory Application No. 588/2002 stands allowed. The Original Application stands rejected as against the petitioner.

iii) Certified copy is expedited.

What happens when the defendant appears in Court upon the service of the of summons and never files his written statement.

  1. Under Order 8 Rule 5 (2) of the CPC, if the defendant has not filed a pleading (which is the written statement) the Court can pronounce judgment upon the facts contained in the plaint but, the Court may require such facts to be proved.
  2. This would be the case when the defendant appears upon the service of the writ summons but does not file any written statement. The Court can pronounce the judgment but the judgment may be pronounced upon the facts stated by the plaintiff being proved. To prove such facts the plaintiff must file an affidavit of evidence and an affidavit of documents along with his documents. The Court would consider the oral and documentary evidence. The defendant has appeared in the suit but the defendant has not filed any written statement. Hence the defendant shall have to be heard but shall not be entitled to place on record his independent case or his evidence in support thereof. He shall only assist the Court against the plaintiff’s  case. Hence for the proof of facts by the plaintiff in his affidavit of evidence the defendant may cross examine the plaintiff. It is only then that the facts stated in the affidavit would stand proved since the defendant had appeared in the suit.
  3. Order 8 Rule 10 is much the same. Where defendant does not file written statement within time fixed by the Court, the Court shall pronounce judgment against him.
  4. This would be done by the Court upon suing the plaintiff’s case in his pleadings and evidence and the defendant’s assistance by arguing and cross examining the plaintiff, without more.
  5. Consequently when the defendant has appeared an exparte decree is never passed. The judgment is pronounced. The judgment may be upon the facts as stated in the plaint, without more. The judgment may also be upon the facts stated in the plaint which are directed to be proved.
  6. The defendants can cross-examine the plaintiff’s witness.

Refer  BALRAJ TANEJA AND ANOTHER VS SUNIL MADAN AND ANOTHER [ALL SC 1999 SEPTEMBER ]

Now, we come to our reasonings and inferences. A reading of Rule 5(2) and Rule 10 of Order 8 of the CPC and the law laid down by the Supreme Court in Balraj Taneja’s case, supra, it is now clear that even if the defendant does not file his written statement, it is incumbent upon the Trial Court to apply itself to the facts pleaded by the plaintiff and come to its own conclusion that even if the facts as stated in the plaint are taken as true, it does not create any in built-inconsistency on facts requiring the same to be proved by the plaintiff by adducing evidence. In case, the Court, after going through plaint, finds that the facts disclosed therein gives rise to two versions of the foundational facts on which the relief is sought to be based, then it will be necessary for the Court to direct the plaintiff to lead evidence, so that on appreciation thereof the Court can ascertain the correct facts and thereupon either decree or dismiss the suit. But, if the Court finds that the facts pleaded are consistent and forms good basis for awarding the relief claimed, then the Court is required to decree the suit on the basis of the facts pleaded in the plaint, since in absence of written statement filed by the defendant controverting any of those facts, the same has to be taken as admitted. [Karnataka High Court Smt. Aisha Bi And Another vs M. Shamsher Khan on 24 November, 2000 Equivalent citations: ILR 2001 KAR 546, 2001 (1) KarLJ 451, 2001(2)1CC[KAR](DB) 640]