Bishan Singh vs IXth Addl. District Judge,Agra & Ors.

R. H. Zaidi, J.—Present petition arises out of a S.C.C. suit and is directed against the judgments and orders passed by trial Court and revisional Court, decreeing the suit and dismissing the revision and He review application filed by the petitioner. Petitioner by means of the present petition prays for issuance of writ, order or direction in the nature of certiorari quashing the said judgments and orders dated 15192, 2011996 and 2741996.

Brief facts giving rise to the present petition are that respondent No. 3 filed S.C.C. suit No. 575 of 1986 in the Court of Judge Small Causes Court, Agra for ejectment of the petitioner from the house No. 25/162A, Patel Nagar, Jiwani Mandi, Agra and recovery of arrears of rent at the rate of Rs. 60 per month, amounting to Rs. 1100. Suit was filed with the allegations that the petitionertenant was in arrears of rent since 1985. A notice of demand and termination of tenancy dated 13686 was served upon the petitioner on 14686 personally. Petitioner gave the reply of the said notice with wrong allegations and did not pay the rent, nor vacated the house in question, therefore, said suit was filed by respondent No. 3 on 211086 for the above mentioned reliefs.

After service of the summons, petitioner appeared before the Court and instead of filing written statement took innumerable adjournments, which were granted to him on payment of costs, which were not paid by him. On 1311992, plaintiffrespondent No. 3, alongwith his Counsel was present; but defendantpetitioner was absent. Trial Court, therefore, fixed 15192 to proceed ex pane. It was also directed that if the costs were not paid by the said date, suit shall be decreed exparte. On 15195 again, defendant remained absent and only an application was filed for adjournment of the case. The said application was rejected by the trial Court and the suit was decreed with costs under Order VIII, Rule 10, C.P.C.

Petitioner instead of filing an application under Order IX, Rule 13 C.P.C. for setting aside the exparte decree, filed a revision under Section 25 of the Provincial Small Causes Court Act, before the revisional Court. The revisional Court held that inspite of the service of the summons, no written statement was filed by the defendant as he simply wanted to delay the disposal of the suit, several adjournments applications, were filed and same were allowed on payment of costs; but even the costs were not paid and that the petitioner was guilty of abuse of process of Court. The revisional Court did not find any illegality in the judgment and decree passed by the trial Court and dismissed the revision by its judgment and order dated 30196. Thereafter petitioner filed a review application before the revisional Court, which was also dismissed by the said Court on 27496. Petitioner, as stated above, thereafter, filed the present petition and prayed for the above mentioned reliefs.

5.1 have heard learned Counsel for the petitioner and perused the record.

Learned Counsel for the petitioner urged that petitioner was not afforded opportunity of being heard and judgments and orders passed by the Courts below were in violation of the principles of natural justice and further that no evidence whatsoever was led by the plaintiff to prove his case and the suit was arbitrarily decreed. Revision as well as the review application were also dismissed by the Court below wholly arbitrarily, therefore, the judgments and orders passed by the Courts below were liable to be set aside.

I have considered the arguments made by the learned Counsel for the petitioner and also gone through the record of the case.

From the record, it is apparent that the summons issued by the trial Court in the suit filed by the respondent No. 3 Was admittedly served upon the petitioner. Petitioner also appeared on the date fixed and engaged a Counsel; but instead of filing the written statement, filed an application for adjournment of hearing of the suit. On several dates fixed, petitioner instead of filing the written statement used to file adjournment applications, which were allowed by the trial Court subject to payment of costs. The costs imposed by the trial Court for adjournment of the hearing of the suit were not paid by the petitioner. Ultimately, it was on 13192 that the trial Court in the presence of the plaintiff and his Counsel, directed to pay the costs, failing which an order to proceed ex pane was passed and 15192 was fixed. Even on 15192 petitioner did not pay the costs, nor filed the written statement and again moved an application for adjournment of the hearing in the suit, which was considered and dismissed by the trial Court. Thereafter, the suit was decreed ex pane in exercise of power under Order VIII, Rule 10,C.P.C.

From the order sheet, a copy of which is contained in Annexure VII to the writ petition, it is apparent that the petitioner was guilty of abuse of process of Court. He simply wanted to delay the disposal of the suit.

Order VII, Rule 10, C.P.C. provides asunder:

"Procedure when a party fails to present the written statement called for by the Court Where any party from whom a written statement is required under Order I, 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 he thinks fit and on pronouncement of the said judgment, a decree shall be drawn up."

From a reading of the aforesaid rule, it is evident that if the defendant fails to file written statement within the time fixed by the Court, the Court is entitled to pronounce the judgment against him or may make such order in relation to the suit, as it thinks fit.

In the instant case, admittedly summons issued by the trial Court was served upon the petitioner. Several dates, thereafter, were fixed in the suit, but inspite of the opportunities given by the trial Court no written statement was filed nor the costs of the adjournments were paid. Trial Court, thereafter, had no option, but to decree the suit.

Rule 5 of Order VIII, C.P.C. provides as under:

"Specific denial(i) Every allegation of fact ig the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be deemed to be admitted except as against the person under disability:

Provided that the Court may in its discretion required any fact so admitted to be proved otherwise than by such admission.

(ii) Where the defendant has not filed the written statement, it shall be lawful for the Court to pronounce judgment on the basis of the fact contained in the plaint except as against the person under disability; but the Court may in its discretion required any such fact to be proved.

(iii) In exercising its discretion undeir the proviso of subrule (i) or under subrule "(ii.) the Court shall have due regard to the fact, whether the defendant could have or has engaged a pleader.

(iv) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which judgment was pronounced.

A reading of the aforesaid rule shows that while exercising the powers under Rule 5 of Order VIII, C.P.C., the Court has got the discretion to require the plaintiff to prove the facts deemed to have been admitted for want of denial or specific denial of the facts pleaded in the plaint, but while exercising the power under Rule 10 of Order VIII, C.P.C. when the defendant failed to file the written statement within the time prescribed or fixed by the Court, the Court has got no discretion, but to pronounce the judgment against him or may make such order in relation to the suit as it thinks fit.

In the instant case, admittedly, written statement was not filed inspite of several opportunities given by the trial Court to the petitioner, the trial Court, therefore, had no option, but to pronounce the judgment and to decree the suit on the basis of the facts stated in the plaint, which remained unrebutted.

Learned Counsel for the petitioner in support of submissions, mainly relied upon the following decision:

(i) Madula India v. Kamkshaya Singh Deo, AIR 1989 SC162; and 1994

(ii) Akttaryar Khan v. Azharyar Khan, ALJ 690.

In Madula India case (supra) the Supreme Court has ruled that:

"Rules 1, 5 and 10 of this order have been recently amended by the Amendment Act of 1976. We find nothing in these rules which ''will support the contention urged on behalf of their respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the Court. Under Rule 5(2) where the defendant has not filed a pleading it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the Court may in its discretion require any such fact to be proved. Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court "shall pronounce

judgment against him or make such order in relation to the suit as it thinks fit." It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court "shall" pronounce judgment against him it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which make it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed. Reference was made before us to subrule (1) of Rule 5."

In view of the law laid down by the apex Court of the country, although, it is not obligatory for the trial Court to pronounce the judgment in the case where the written statement is not filed, but if the judgment is pronounced and decree is passed, the same cannot be held to be illegal. The trial Court is at liberty to pronounce the judgment, if the written statement is not filed by the defendant inspite of the time being granted for the said purpose within the time granted by the Court.

While dealing with the scope of Rules 1, 5 and 10 of Order VII, C.P.C. as amended by Code of Civil Procedure (Amendment) Act, 1976, it was observed by their Lordships of Supreme Court that in the case, where the defence of the defendant was struck off and the question was whether the defendant could still participate in the proceedings of the suit and if so to what extent. It was held that even after his defence was struck off the defendant was entitled to crossexamine the plaintiff''s witnesses and to address argument on the basis of the plaintiff''s case, but he will be not entitled to lead his evidence of his own nor could his crossexamination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff s case.

In the case of Aktaryar Khan (supra) the case was fixed for hearing on 111191. Summons issued by the Court were served personally upon respondents No. 1 and 2. On the said date, since the Court was a transferee Court as the case in the meanwhile was transferred to that Court, fixed 201291 for final hearing. Even on the said date the case could not be taken up. Thereafter, two dates were fixed and ultimately 9492, was fixed for hearing. On the said date the Court decreed the suit exparte as the service upon the defendant was sufficient and the written statement was not filed. Thereafter, on 21492 an application under Order IX, Rule 13, C.P.C. was filed by the defendant, mainly pleading that on the said date defendant was ill and was not aware of the said date as after transfer, no notice was served upon him by transferee Court fixing date for hearing. Trial Court was pleased to dismiss the said application vide its judgment and order dated 71292. It was under the said facts and circumstances, the Court was pleased to hold that:

"the condition precedent for proceedings under Rule 10 therefore, is that the Court must require the defendant to file the written statement and if one being so required, defendants fails to comply with the order within time allowed ; the Court has been given the power to pronounce the judgment against him. In the fact of the present case, I do not find from the ordersheet of the suit any express order of the Court granting time to the defendants to file written statement. The Court below, therefore, has exercised \\\\f, jurisdiction with material irregularity by applying of provision of Order VIII, Rule 10, C.P.C. and decreeing the suit on 9492.1 am of the opinion that in the facts of the present case, Order VIII, Rule 10, C.P.C. will not apply. (Emphasis supplied)

In the present case, it is evident from the copy of the ordersheet, contained in Annexure VII to the writ petition, that the suit was filed on 211086. Thereafter summons was issued by the trial Court and petitionerdefendant was served personally. Several dates thereafter were fixed in the suit. Firstly the defendant sought adjournment on the ground that copy of the plaint was not supplied to him. The Court directed the plaintiff to supply a copy of the plaint to the defendant, which was supplied to him. From 1986 to 1991 about 20 dates are fixed in the case and on 29791 both sides were present

and 10991 was fixed for hearing of the case. Even till then the written statement was not filed. On 1091991 plaintiff was present in the Court while the defendant was absent. The Court, therefore, directed to proceed ex pane and fixed 111191. Thereafter, defendant applied for setting aside the order dated 101091 and the said order was set aside and 281191 was fixed. On 281191, the case was adjourned to 13192. It may be noted that the adjournments of the case were allowed, from time to time, on payment of costs which were not paid by the defendant. On 13192, the defendant again applied for adjournment of the case, which was allowed subject to payment of Rs. 40 as costs. It was also directed that if the costs were not paid and written statement was not filed, the Court will proceed ex pane under Order VIII, Rule 10 C.P.C. and 15192 was fixed.

On 15192, inspite of the specific order passed by the trial Court, neither the written statement was filed nor costs were paid by the petitioner. On the other hand, an application for adjournment was given under the facts and circumstances, the trial Court rejected the application for adjournment of the hearing of the case and pronounce the judgment in exercise of its power under Order VIII, Rule 10, C.P.C.

Under the aforesaid facts and circumstances, the Court below was justified in holding that the petitioner wanted to delay the disposal of the suit. He deliberately did not file the written statement and also did not pay the costs awarded by the trial Court on several adjournment applications filed by the petitioner and that he was guilty of abuse of the process of the Court. In my opinion, the Courts below did not commit any error of law and jurisdiction in decreeing the suit and dismissing the revision and review application filed by the petitioner. No case for interference under Article 226 of the Constitution of India is made out.

The writ petition fails and is dismissed in limine.