1980 PLP 930 (CLC)

In fact the written statement was shown to the learned Civil Judge who was ill such a hot temper and rage that he refused to receive it." Needless to say that the point has also been taken in the memorandum of the present appeal. Admittedly, however, there is nothing in the record of the trial Court to show that . the appellant had brought the written statement and had wanted to file it but had been frustrated in doing so by the Presiding Officer. The order of the trial Court passed on 4th October, 1976, only speaks of an application having been filed for requiring the plaintiff to produce certain documents and while pro ceeding to dispose of that application, also records. Nevertheless, learned counsel has tried to press the contention by referring to the plaintiff's reply to the written arguments filed before the lower Appellate Court. It is urged that the reply is silent about the assertion that the appellant had been ready with the written statement in the Court. I find that the plaintiff did reply in his written arguments, touching upon the contention in the following words "On 4th October, 1976 appellant did not file written statement but in order to further prolong the case, filed an application for - production of documents by the plaintiff." There is, thus, no proper material to support the contention. Even otherwise, whether the appellant had tried to present the written statement on 4th October, 1976 is a question of fact and no enquiry is possible in this second appeal.

4. The other contentions urged involve an interpretation of the .words "so required" occurring in rule 10 of Order VIII. It may be useful in this context to examine the arrangement of Order VIII. Under rule 1, "the defendant may and if so required by the Court shall ...... present a written statement of his defence." Rule 2 directs that new facts must be specially pleaded while rule 3 says that denials must be specific. Rule 4 relates to evasive denials and rule 5 to the effect of the denials not being specific. .Rules 6 and 7 direct that the particulars of setoff, should be given in the written statement and if the defence or set-off; s founded on separate grounds, the same should be stated as far as may be separately and distinctly. Rule 8 relates to new grounds of defence. Rules 2 to 8 are, therefore, practically an extension of rule

1. Then comes rule 9 which relates to the question of pleadings subsequent to the written statement and contains the following :- but the Court may at any fire require a written statement or additional written statement from any of the parties: The next rule, i.e. rule 10, gives the "Procedure when party fails to present written statement called for by Court" and lays down that "Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."

5. The question whether the words "so required" occurring in rule 10, apply also to rule 1 had come up for consideration before a Division Bench in Rangaaami Udayan v. Manickam Pillai (A I R 1918 Mad. 1163). Ayling, J. expressed the view that rule 10 covered not only rule 9 but also rule

1. He observed :-- "The difficulty is in .deciding whether rule 10 only applies to a failure to comply with a requirement under rule 9 or whether it also covers failure to present a written statement required under rule

1. The word "so" is certainly ambiguous. Appellant relies on the close juxtaposition of the two rules and argues that the words "so required" in R. 10 can only relate to a requisition under R. 9 ; otherwise instead of "so required" the words used would be "required under this Order." -On the other hand, if this were the intention of the Legislature, there is no object in making a separate rule. The penal clause would more suitably and conveniently form part of R. 9 (of O. X, R. 4). It would moreover be strange for the legis lature to penalize so heavily the failure to present an additional written statement, when required and to leave unpunishable the failure to present a written statement when required at the outset of the case." He further observed :- "The rules in the order intervening between Rr. I and 9 are all directed to making clear what should be contained in the written statement referred to in the former. They are really of the nature of explanations to R. 1 and might not inappro priately appear as part of it. If they did and if Rr. 9 and 10 stood numbered as Rr. 2 and 3, it would I think be hard to contend that R. 3 applied only to R. 2 and not to R. 1." The other learned Judge of the Bench, namely, Seshagiri Aiyar, J, did not agree with the proposition and held :- "I am unable to hold that the words 'from whom a written state ment is so required' as referring back to R.

1. A whole mass of matter intervenes between the two rules and I consider it would be doing violence to grammar to read the words I have italicized as referring to R.

1. It may be a case of omission or not, I am unable to connect R. 10 with R. I." In A. K. Moopan v. A. Karupana (A I R 1928 Rang. 261) where upon the failure of the defendant to file a written statement within the time given by the Court, the trial Court had proceeded to pronounce judgment forthwith under rule 10, and given a decreee in favour of the plaintiff, the Division Bench expressed the opinion that :-- "the permission given to the Court to pronounce the judgment refers to a written statement which has been demanded by the Court under O. Vill, R. 9, Civil P. C. after the Court has pro ceeded to hearing ; and where, therefore, there are materials before the Court on which it could form a judgment." The Madras authority in Rangasami Udayan's case does not appear to have been cited before this Bench. When the matter again came up before the Madras High Court in a subsequent case, i.e. Nagaratnam Pillai v. Kamalathammal (A I It 1045 Mad. 299), the Division Bench preferred the view expressed by Seshagiri Aiyar, J. in the aforecited case of Rangasami Udayan. The Bench was influenced by the word "so" occurring to rule 10 and held that the provisions of rule 10 could not be related back to rule

1. It was explained :- "We must hold that there is something very strange on a natural interpretation of the words in R. 10 to make it relate to R. 1, even on the view suggested by Ayling, J., that Rr. 2 to 8 may be regarded as sub-rules under R.

1. The fact remains that two pages of printed matter intervene between the requisition of the Court under R. 1 and the word "so" occurring in rule 10."

6. The Lahore High Court has, however, been of a different view. In Ghulam Muhammad v. Mst. Sahiban (P L D 1957 Lah. 624) a learned Single Judge before whom the first two cases but not the case of Nagaratnam Pillai had been cited, had after a detailed study of the corresponding provisions contained in sections 110, 111. 112 and 113 of the earlier Civil Procedure Code of 1882, held that rule 10 did cover, even the filing of the written statement under rule

1. The question again came up in Sheikh Muhammad Sharif v. Haji Ghulam Gillani (P L D 1961 Lah. 609), where both the aforesaid authorities in Nagaratnam Pillai v. Kamalathammal and Ghulam Muhammad v. Mst. Sahiban, were considered and it was held that the Lahore authority in Ghulam Muhammad's case expressed the correct view. The same opinion was expressed in yet another case of this Court, i.e. Sh. Abdul Saboor and Brother v. Ganesh Flour Mills Co. Ltd., Lyallpur (P L D 1967 Lah. 779). In Abdul Qadoos v. Abdur Rehman (P L D 1970 Azad 1 & K 21), the Azad J and K. High Court, had, however, followed the view in the aforesaid cases of Moopan and Nagaratnam Pillai in holding that rule 10 referred to a written statement required under rule

9. But it is to be noted that none of the Lahorb authorities had been cited before it.

7. If the arrangement of Order VIII is carefully examined, it would become clear that rules 2 to 8 serve only to qualify and clarify rule

1. They are in fact an extension of that rule I find great force in the observation of Ayling, J. that if they were to be treated as part of rule 1 and if rules 9 and 10 were numbered as rules 2 and 3 it would be hard to contend that rule 3 applied only to rule 2 and not to rule

1. I am, therefore, in respectful agreement with the view repeatedly taken by this Court that the words "so required" used in rule 10 do reach and cover rule i also. Even otherwise, it is inconceivable that the Code while pro viding a drastic penal measure for default in presenting a subsequent or additional written statement, would not take care of a default in filing the main written statement. In this regard, too, I respectfully endorse observation of tiyling, J. Which found echo also in the alorecited case of Sh. Abdul Saboor etc. in the following words :- . "The situation contemplated in rule I is more serious than the one in rule

9. To apply, under the circumstances, rule 10 only to a case covered by rule-9 and not to a case to which rule 1 applies, will result in inconsistent positions. Rule 10 in fact applies both to rules 9 and 1." I am, therefore, confirmed in my view that the interpretation put by this Court from time to time in regard to the scope of rule 10 is correct, and that it covers a failure to file written statement required by Court under rule 1 also.

8. I may now advert to the third contention, i.e. whether the defendant had been "required" by the Court to file written statement. Order VIII, rule 1, provides that the defendant "may" present a written statement. In this situation the defendant is not bound to file a written statement. But the rule further lays down that he shall present such written statement if "so required by the Court". Hete the defendant is obliged by law to file his written statement and upon his failure to do so would invite the penal provision of rule 10, wherein the Court is empowered to "pronounce judgment against him or make such order in relation to the suit as it thinks fit". Learned counsel for the appellant urged .that although the appellant had been given adjournments from time to time to file the written statement she had never been "required" by the Court to file the written statement and as such the Court could not invoke the penal provision of rule 10, but could have proceeded against the appellant in the absence of a written statement. According to learned counsel the Court in such situation could have only proceeded ex parte but could not have pronounced judgment straightaway without there being any evidence. Learned counsel for the respondent, on the other hand, contended that in terms of the summons served on the appellant and the orders passed from time to time by the trial Court, it was clear that she was under a definite direction given by the Court to file her written statement. Far this he referred to the following words in Form No. 2 of surnmons in Appendix 'B' to the Code of Civil Procedure and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence ; and to file on or before that date your written statement." This form is prescribed for issuing summons under - Order V, rules 1 and

5. The process under rule 1 is for intimating to the defendant that a suit had been instituted against him and for asking him to appear and answer the claim on the date specified in the process, while the process under rule 5 is to intimate to the defendant that the Court would settle issues. Since this is the first process issued in the suit and the Court had not yet proceeded with the hearing of it, it can hardly be said that by this process the Court had by a conscious application of the mind "required" the defendant, to file his written statement. The direction contained in the process to the defendant to file his written statement is no more than of a general nature and to my mind cannot be treated to amount to a specific requirement for so doing A direction can be treated to amount to require the defendant to file the written statement only if it had been given after a proper application of the mind on-a specific question or questions which arise in the suit before the penal provision of rule 10 could be visited upon the defendant. Moreover, the law does not contemplate the pronouncement of judgment in favour of the plaintiff without there being any material supporting the plaintiff's case. As already observed, the defendant, unless he is specifically required to file written statement, can choose not to file the same and yet would not be considered ousted from the proceedings, for he could still appear and argue against the maintainability of the suit, the availability 9f the cause of action against him and so forth. This is supported by Thakurain Dhiraj Kawar v. Sarju Narain Singh (A I R 1925 Oudh 567). In this case it was held that order VIII, rule 10, applied only to a specific requirement by the Court to the filing of the written statement and not to a general direction in the summons that such a written statement may be filed. It was further observed that on failure to file ,a written statement; proceedings ought to have been taken under Order IX, rule 6 and not Order Vill, rule

10. In Vinayak Shreedha Kulkarni v. Chintaman Vaman Kulkarni (A I R 1938 Bom. 470), it was held that the party is not bound to put in his written statement and that if he does not do so, he is taken to admit the allegations in the plaint but he 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. In J. B. Ross & Co. v. C. R. Scriven and others (1 L R 43 Cal. 1001) it vigyas held that on the failure to file a written statement it would be undesirable if a suit were adjudicated upon without any evidence in the real sense of the word, given by the plaintiff and that the Court had no jurisdiction to make a decree. It was observed in this connection that the verification of the plaint was not evidence on which a suit could be decreed whether the adversary did or did not appear. A similar view was taken in Ram Lakhan and another v. Mahant Govind Das (A I R 1945 All. 352). A defendant who had failed to file his written statement in time is not prevented from filing such a statement even later in the proceedings provided he is permitted by the Court to do so on assigning good, cause. Order IX, rule 7 refers.

9. In the case in hand, as I have already noticed, there had bee no specific requirement as contemplated by Order VIII, rule 10 for filing a written statement and as such the Court could not pronounce judgment. Even otherwise, Order VIII, rule 10 does not contemplate the pronouncement of judgment as the only measure for it leaves the C Court a wide margin of discretion to make any other order it thinks fit The pronouncement of judgment in the absence of evidence to support the plaintiff's case was thus improper. In the result I allow this second appeal, set aside the judgment of the Courts below and .remand the case to the trial Court for proceeding in the suit in the absence of the written statement in accordance with the law. There shall be no, order as to costs. M. A. K. Appeal accepted. Case remanded.