Md. Sekhawat Hussain vs Narsinghlal Agarwalla

S.N. Phukan, J.—Heard Mr. Das, learned Counsel for the Appellant and Mr. Sahewalla, learned Counsel for the Respondent.

In this case, the Defendant inspite of several adjournments failed to file written statement and consequently the learned trial Court passed the following order:

The Defendant No. 1 was found to have adopted on dilatory tactics to drag the case without sufficient cause. Hence, under Order 8 Rule 10 CPC the suit is decreed against the Defendant No. 1 with cost for his failure to submit the written statement within the time granted by court.

From the judgment, it appears that earlier it was decided that the case will proceed ex parte against other Defendants and accordingly the learned court decreed the suit.

Mr. Sahewalla has urged drawing my attention to Rules 5 and 10 of order 8 CPC that in the event of failure to file written statement, the court may accept the plaint as a whole even without taking evidence of the Plaintiff. According to Mr. Sahewalla these two rules give wide power to the court to pronounce judgment and decree immediately.

I am unable to accept contention of Mr. Sahewalla. I may state that Plaintiff is not supported by an affidavit and it is only verified. That apart, though these two rules, namely, Rule 5 and Rule 10 of order 8 empower the court to pronounce judgment, it would not mean, in my opinion, that the court can do so without recording evidence, the minimum requirement being that Plaintiff should be examined on oath. I say so as CPC is a procedural law and under substantive law, Plaintiff has to prove his case (see Section 101 of the Evidence Act). I may also add that there may be cases where on reading the plaint it may appear to the court that a claim or part of it may be barred by limitation, apart from other legal defects that may come to the notice of the Court in the Case In hand there is nothing to show that the court even read the plaint.

In the result, the impugned judgment and decree are set aside and parties are directed to appear before the learned trial Court on 26.11.90. Thereafter, the Defendant is allowed one month time to file written statement. If the written statement is not filed within the aforesaid period, no further time shall be granted and the learned court shall proceed to decide the suit ex parte by recording evidence at least of the Plaintiff. In view of the facts and circumstances and submissions of the learned Counsel for the Respondent, I direct the learned trial Court to dispose of the case as early as possible, positively within a period of one year in the event suit is contested by the Defendant.

In the result, appeal is allowed. No costs.