Kaulan Devi and Others vs Bhume Ram and Others

V.P. Gupta, J.—Bhikham Ram (Defendant No. 2) filed this revision petition against the order dated 31-3-1979 passed by the Senior Sub-Judge, Mandi, by which his oral request to produce evidence was disallowed. During the pendency of this revision petition Bhikham Ram died and the present Petitioners were brought on record as his legal representatives vide order dated 21-11-1984.

Briefly the facts are that Bhume Ram Plaintiff (Respondent No. 1) filed a suit for declaration with consequential relief to the effect that he was the sole owner of the property in dispute and that Defendants be restrained from interfering with possession.

Notices of the suit were issued to the Defendants. Defendant No. 2 did not appear despite due service and was proceeded ex parte. Defendants Nos. 1 and 3 and Defendants Nos. 4 to 8 were represented by Advocates. Thereafter Defendants Nos. 1 and 3 were also proceeded ex parte vide order dated 29-8-1977 and the case was listed for 3-10-1977 for replication and issues.

Defendants Nos. 4 to 8 had filed a written statement. but no written statement was filed on behalf of Defendants Nos. 1 to 3.

On 3-10-1977 Defendant No. 2 appeared through an Advocate, but he did not file any written statement. Defen dants Nos. 4 to 8 had admitted the Plaintiff''s claim and the learned Senior Sub-Judge passed the following order on 3-10- 1977:

Present: Plaintiff counsel. Shri B.K. Malhotra Advocate for Defendants Nos. 4 to 8.

Defendants Nos. 1 to 3 have already been proceeded against exparte. Shri P.L. Gupta Advocate joins proceedings on behalf of Defendant No. 2.

To come up for Plaintiff''s evidence. No issue framed as no written statement has been filed by defdts. Nos. 1 to 3 and no material issue of law and fact arises from the written statement of Defendants Nos. 4 to 8. Put up on 21-1-1977.

Thereafter the Plaintiff produced his ex parte evidence on different dates. Finally the statement of Shri Hari Kishan Advocate (PW) was recorded on 30-11-1978 and the Plaintiff closed his entire evidence but it apears that the counsel for Defendant No. 2 made an oral prayer seeking permission to produce evidence and the learned Senior Sub- Judge passed the following order :

Present: Parties with their counsel.

Statement of Shri Hari Krishan Advocate as witness recorded The Plaintiff has closed his entire evidence. The Defendant has joined later on in the suit and wants to lead evidence without written statement. To come up for arguments on 1-1-1979.

The oral request of the learned Advocate appearing on behalf of Defendant No. 2 was rejected vide order dated 31-3-1979 and the present revision petition is against this order.

I have heard Shri Indar Singh, the learned Counsel for the Petitioner (Defendant No. 2) and Shri Kedar Ishwar the learned Counsel for Respondent No. 1 (Plaintiff).

The learned Counsel for the Petitioner contends that a Defendant who has been proceeded ex parte is entited to take part in the further proceedings in the suit and has a right to cross-examine the Plaintiff''s witnesses and produce evidence in rebuttal.

The learned Counsel for Respondent No. 1, contends that a Defendant who fails to file a written statement cannot be allowed to produce any ev''dence in rebuttal. He, however, admits that such a Defendant can join the proceedings in the suit at any stage.

I have considered the contentions of the learned Counsel for the parties.

In the present case the Defendants Nos. 1 to 3 were proceeded ex parte. In ex parte evidence the Plaintiff examined three witnesses on 21-11-1977. Thereafter he again examined three more witnesses on 10-1-1978. The case was then listed for the statement of the Plaintiff''s witness Shri Hari Kishan whose statement was recorded on 30-11-1978 and he was also cross-examined on behalf of defend a at No. 2. The Plaintiff then closed his evidence on 30-11-1978. At this stage the learned Counsel for Defendant No. 2 made an oral prayer seeking permission to produce evidence in rebuttal but this prayer was disallowed on 31-3-1979.

Order 8 Rule 1 of the CPC (hereinafter the Code) provides that the Defendant shall at or before the first hearing or within such time that the Court may permit, present a written statement of his defence. In the written statement it is open to the Defendant to deny the allegations of the plaint and also to set up any defence or claim for set off or a counter claim.

It is, however, an admitted position that the non-filing of a written statement does not amount to an admission of the facts as are stated in the plaint. In the case of the filing of a written statement the Defendant has to deny the various allegations of the plaint specifically and a general or evasive denial is not sufficient.

If the Defendant does not file a written statement then under Order 8 Rule 5(2) of the Code it is lawful for the Court to pronounce a judgment on the basis of the facts contained in the plaint except as against a person under disability but the Court may in its discretion require any such fact to be proved.

Similarly, under Order 8 Rule 5(3) of the Code, while exercising a discretion under Order 5 Rule 2, the Court shall have due regard to the fact whether the Defendant could have or have engaged a pleader.

Order 8 Rule 10 of the Code 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, as the case may be, the Court shall pronounce the 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.

This rule suggests that the failure of a Defendant to file a written statement as required by the Court, me?ns only that he admits the allegations in the plaint and is entitled to appear and submit any argument open to him on the plaint, for instance, that the plaint discloses no cause of action or that the claim is time barred. The Court, however, is not bound to pronounce the judgment and it h?s an option to make an appropriate order in relation to the suit as it thinks fit. In a proper case the Court can order the Plaintiff to prove the allegations of the plaint by producing ex parte evidence and the suit will remain pending with the Court. In such an event, a Defendant is at liberty to take part in the hearing of the suit at any subsequent stage even without filing a written statement, because the non-filing of a written statement does not amount to admission of all the facts pleaded in the plaint.

Under Order 9 Rule 7 of the Code a Defendant has right to appear on the day of adjourned hearing and can also apply to get the ex parte proceeding set aside provided he assigns good cause for his previous non-appearance However, if no good cause for non-appearance is assigned or the Defendant does not wish to get the previous ex parte proceedings set aside then he is at liberty to join the proceedings from the later date, that is, from the date re appeared in the proceedings and can lake part in all such subsequent proceedings.

Order 16 of the Code deals with summoning and attendance of witnesses while Order 18 of the Code deals with the hearing of the suit and the examination of witnesses. Under Order 18 Rule 1 the Plaintiff has a right to begin unless the Defendant admits the facts alleged by the Plaintiff and con tends that cither in point of law or on some additional facts alleged by the Defendant the Plaintiff is not entitled to any part of the relief which he seeks, in which case the Defendant has the right to begin.

Under Order 18 Rule 2 of the Code the Plaintiff is enti tled to state his case and produce evidence in support of the issues which he is bound to prove. Thereafter the other party, that is, the Defendant shall state his case and produce his evidence, if any,, and may then address the Court generally on the whole case.

The various provisions of the Code as have been nar rated above, clearly show that a Defendant who fails to file n written statement, cannot have any right to lead any evidence upon the facts which he could allege in his written statement by way of defence. At the same time, the non-filing of the writ ten statement will not necessarily amount to the admission of the various facts alleged in the plaint. The Court has been given a discretion to admit the various facts alleged in the plaint as correct and pronounce a judgment accordingly under Order 8 rules 5 and 10 of the Code. The Court has also a discretion to require a Plaintiff to prove any such facts as have been alleged in the plaint although no written statement has been filed. In other words, in such a case the allegations in the pl?int are not deemed to be admitted as correct by the Defendant.

It is also an admitted position of law that if the suit is proceeding then the Defendant has a right to join the proce edings at any stage of the suit and can also be allowed to cross-examine the Plaintiff''s witnesses.

In Ganpat Chand Vs. Jeth Mal, the scope of Order 8 Rules 10 and 1 of the Code was considered and it was held :

Where the Defendant fails to file his written statement, then the Court has an option to pronounce judgment or in the alternative to proceed with the further hearing of the suit. Where the Court decides to proceed with the hearing of the suit although the Defendant would be barred to file his written st?tement subsequently he can yet be allowd to cross examine the witnesses produced by the pl?intiff and adduce evidence in rebuttal of the ?llegations made in the plaint and then take part in the final arguments leading to the decision of the suit. But he cannot be allowed to le?d any evidence in respect of defences which have not been raised on account of his failure to file the written statement.

The learned Counsel for Respondent No. 1 also does not deny that the Defendant can join the proceedings at any time even without filing the written statement.

It may be mentioned that by filing a written state ment it is open to the Defendant to deny the Plaintiff''s allega tions and also to set up any defence or to claim a set off or to put the counter claim, but in the case of a failure to file the written statement he will only be entitled to rebut the Plaintiff''s claim and will be debarred from setting up a defence lor to plead a new case, Thus, even without filing a writ ten statement, a Defendant can always claim a right to cross- examine the Plaintiff''s witnesses for proving that the evidence of the Plaintiff does not support the Plaintiff''s allegations made in the plaint. He will also have a right to lead evidence in rebuttal to disprove the Plaintiff''s version. At the same time, he cannot be allowed to lead evidence in respect of the defences which he could have ta ken in his written statement and which he failed to take due to non-filing of the written statement. The Defendant can, only be allowed to lead evidence in rebuttal to the Plaintiff''s case and can take part in the further proceedings, that is, from the stage when he joins the proceedings.

Thus in the facts and circumstances of the present case, in view of the provisions of Order 8 Rules 5 and 10 of the Code read with Order 9 Rule 7, it will be open to Defendant No. 2 to take part in the further proceedings and to lead rebuttal evidence only to the extent that the allegations in the plaint are disproved. He will not be entitled to lead any evidence in support of any possible defence which he could have taken in his witten statement to defeat the Plaintiff''s claim because any such evidence which will beat variance with the pleadings and cannot be looked into.

In view of the above discussion, the present revision petition is accepted and the order of the learned Senior Sub-Judge. Mandi, dated 31-3-1979, rejecting the oral prayer of Defendant No. 2 for permission to lead evidence is set aside. The case file be sent back to the learned Senior Sub-Judge, Mandi, who will proceed in the matter in the light of the observations made in this judgment. The parties are directed to appear in the Court of Senior Sub-Judge, Mandi, on August 5, 1985.