Order VIII Rule 10 CPC | Not Mandatory To Pass Judgment In Favour Of Plaintiff Merely Because Defendant Failed To File Written Statement: Supreme Court

The Supreme Court observed that it is not mandatory for a Court to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.

The Court said that under Rule 10 of Order VIII of Code of Civil Procedure, only on being satisfied that there is no fact which need to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement.

The three-Judge Bench of Justice B.R. Gavai, Justice Dipankar Datta, and Justice Aravind Kumar held, “What emerges from a reading of Balraj Taneja (supra), with which we wholeheartedly concur, is that only on being satisfied that there is no fact which need to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja (supra) also lays down the law that provision of Rule 10 of Order VIII, CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.”

The Bench also held that Rule 10 is permissive in nature and hence enables the Trial Court to exercise the alternatives open to it.

Senior Advocate Meenakshi Arora appeared on behalf of the appellants while Advocate Preetika Dwivedi appeared on behalf of the respondents.

Brief Facts -

The respondents i.e., the purchasers had filed an objection under Section 47 of the CPC in an execution application filed before the Executing Court by the appellants. It was urged, based on the case pleaded therein, that the decree put to execution was inexecutable. The Executing Court, in 2008, allowed the objections of the respondents, resulting in dismissal of the execution application and a revision was carried by the appellants from the said order before the Revisional Court which, vide its order, dismissed the objection filed by the respondents.

The Revisional Court directed the Executing Court to proceed with the execution of the decree whilst treating such objection as non-maintainable. The revisional order was challenged by the respondents in an application under Article 227 of the Constitution before the Allahabad High Court. The High Court, by its judgment and order, quashed the order passed by the Revisional Court and relegated the parties to the remedy of having their rights, in respect of the suit property, adjudicated by the appropriate forum. Hence an appeal was filed before the Apex Court against the said judgment and order of the High Court.

The Supreme Court in view of the above facts noted, “Notwithstanding the alternative of proceeding to pronounce a judgment, the court still has an option not to pronounce judgment and to make such order in relation to the suit it considers fit. The verb ‘shall’ in Rule 10 [although substituted for the verb ‘may’ by the Amendment Act of 1976] does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which ‘shall’ equally applies would be rendered otiose.”

The Court referred to the said Balraj Case to examine the scope of Rule 10 of Order VIII. Therein, the Court had ruled that a court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII, CPC merely on the basis of the plaint, upon the failure of a defendant to file a written statement.

“If indeed, in a given case, the defendant defaults in filing written statement and the first alternative were the only course to be adopted, it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the court. Generally, in order to be entitled to a judgment in his favour, what is required of a plaintiff is to prove his pleaded case by adducing evidence. Rule 10, in fact, has to be read together with Rule 5 of Order VIII and the position seems to be clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by such admission. Similar is the position with section 58 of the Indian Evidence Act, 1872”, it said.

The Court further observed that a plaint in a suit is not akin to a writ petition where not only the facts are to be pleaded but also the evidence in support of the pleaded facts is to be annexed, whereafter, upon exchange of affidavits, such petition can be decided on affidavit evidence.

“We are constrained to observe that it is to avoid such a situation of contradictory/inconsistent decrees that power under Rule 10 of Order VIII ought to be invoked with care, caution, and circumspection, only when none of several defendants file their written statements and upon the taking of evidence from the side of the plaintiff, if deemed necessary, the entire suit could be decided. As in the present case, where even one of several defendants had filed a written statement, it would be a judicious exercise of discretion for the court to opt for the second alternative in Rule 10 of Order VIII, CPC unless, of course, extraordinary circumstances exist warranting recourse to the first alternative”, it added.

It also noted that a “judgment”, if pronounced by a court under Rule 10 of Order VIII, CPC, must satisfy the requirements of Rule 4(2) of Order XX, CPC, and thereby conform to its definition provided in section 2(9) thereof. It further said that even a cursory reading of Rule 10 of Order VIII, CPC impresses it the fundamental mandate that a “decree” shall follow a “judgment” in a case where the court invokes power upon failure of a defendant to file its written statement and it is, therefore, only a “judgment” conforming to the provisions of the CPC that could lead to a “decree” being drawn up.

Accordingly, the Apex Court dismissed the appeal and upheld the judgment of the High Court.

Cause Title- Asma Lateef & Anr. v. Shabbir Ahmad & Ors. (Neutral Citation: 2024 INSC 36)

Appearance:

Appellants: AOR Rahul Narayan, Advocates Shashwat Goel and Palak Vasishtha.

Respondents: AORs Abhishek Chaudhary and Adarsh Upadhyay.

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