P L D 1967 Lahore 779 (PLP)

Dates of hearing: 11th and 13th April 1966. This is an appeal against the order dated the 5th of October 1965, of the Senior Civil Judge, Lyallpur, whereby he passed orders in terms of Order VIII, rule 10 of the Code of Civil Procedure and without taking any further step granted the decree in favour of the plaintiff‑respondent for Rs. 1,41,773.70. The appellant has preferred this appeal under Order XLIII, rule l(b) of the Code of Civil Procedure.

2. The relevant facts are: The respondent filed a suit for the recovery of the afore‑mentioned amount on the 23rd of February 1965, in the Court of the Senior Civil Judge, Lyallpur. The Court on the 2nd of March 1965, adjourned it to the 16th of April for summoning the defendant. On the summons it was reported that the defendant had gone out of Lahore. On the 16th of April 1965, the defendant‑appellant was not present. The case was, therefore, adjourned to the 10th of May 1965 for the service on the defendant and it was further directed that if it was not possible to serve him personally then a substituted service through proclamation by the beat of drum be effected on him. The case could not be taken on the 10th of May 1965, for the reason that the Presiding Officer was on leave and also that the report of the proclamation had not been received in the Court. The case was adjourned to the 19th of May 1965. On that date again only the counsel for the plaintiff was present and the direction was repeated by the Court to serve the defendant through proclamation by the beat of drum. The case was then adjourned to the 12th of June 1965. The Court on that day directed that since the defendant could not be served by the proclamation by the beat of drum, substituted service through the newspaper be effected on him. The case was adjourned to the 22nd of July 1965, and on that date it was again adjourned to the 13th of September 1965, for the reason that intimation had not been received by the Court if the proclamation had been issued in the newspaper. The defendant appeared on the 13th of September 1965. He was delivered a copy of the plaint and was directed to file the written statement on the 5th of October 1965. On that date the defendant did not file the written statement. The Court refused further adjourn ment, and proceeded under Order VIII, rule 10 of the Code of Civil Procedure and decreed the suit of the plaintiff without recording any evidence.

3. Learned counsel for the appellant relies on Thakurdin Dhiraj Knwar v. Sarju Narain (A I R 1925 Oudh 567), A .K. Moopan v. A. Karupana (A I R 1928 Rang. 261) and Nagaratnam v. Kamalathammal (A I R 1945 Mad, 299), to contend that rule 10 of Order VIII applies only in a case where the Court orders under rule 9 of Order VIII to file the additional written statement and it cannot be pressed into service when there is only a direction to file the written statement under rule

1. Rule 10 reads as:‑ "Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit." The precise argument was that the words "from whom the written statement is so required" in rule 10 can be referable only to rule 9 which precedes rule 10 and not to rule 1 when there are so many other Rules intervening. According to him, the words "so required" being in close proximity to rule 9 have application to a case covered by rule 9 only. Rule 1 of Order VIII reads as:‑ "The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence." In rule 1 the words used are "so required". Same words are used in rule

10. There is no reason, therefore, to say that rule 10 has no application to rule

1. Moreover, the defendant is required to file the written statement containing his defence under rule

1. Rule 9 on the other hand provides as:‑ "No pleading subsequent to the written statement of a defen dant other than by way of defence to a set‑off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same." Rule 9 creates a bar to the presenting of any pleading subsequent to the written statement of a defendant except by the leave of the Court. It also provides that a Court may require a state ment of additional written statement from any of the parties. So both under rule 1 and rule 9, the Court can require the defendant to file the written statement of his additional written statement, as the case may be. If we apply rule 10 only to a case covered by rule 9, it will result in anomalous situation. The Court may require him to file written statement under rule 1 and he may refuse to do so. If rule 10 is not applicable to such a situation, there is no other provision under which the Court can act and pass effective order in such a case. The Court can also require the plaintiff under rule 9 to file written statement (i.e., a replication) or the defendant to file the additional written statement and if he fails to do so, rule 10 undoubtedly will apply in such a case and the Court will be competent to pronounce judgment against him. The situation contemplated in rule 1 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 rule 9 and rule

1. The precise question was considered by this Court in Ghulam Muhammad v. Sahiban (P L D 1957 Lab. 624) and Muhammad Sharif v. Ghulam Gilani (P L D 1961 Lab. 609), and it was held that the provisions of rule 10 apply to cases covered both by rule I and rule

9. I am in respectful agreement with the view taken earlier by this Court. In rule 10 the words used are indeed "so required" but there is no accepted rule of interpretation that in all circumstances when the words C are so used in a section of an Act they must necessarily refer to the preceding section only. The scope and application of such words is to be considered always with reference to the provisions of each statute where such words are used.

4. It was next contended by the learned counsel for the appellant that on failure of the defendant to file a written statement, the Court may pronounce judgment against him and not that the Court can mechanically pass the order in favour of the plaintiff. In section 2, clause (9) of the Code of Civil Procedure, judgment is defined as:‑ "judgment' means the statement given by the Judge of the grounds of a decree or order." According to the learned counsel for the appellant in the present case when the Court passed the order upholding the claim of the plaintiff, it did not give any judgment because it contained no reasons for his order. He contended that it was the duty of the Court to give the reasons as to why it was accepting the claim of the plaintiff. I am unable to agree with the conten tion. Under rule 10, the Court has been given the discretion to "pronounce judgment against" the defendant. It does not mean at all that the Court is to take any further steps to ascer tain the truth of the contentions raised in the plaint. In the phrase "pronounce judgment against him" the words "pronounce" and "against him" are significant. Once the Court decides to exercise the discretion under rule 10, it has to pronounce the judgment against the defendant. It cannot dismiss the suit because in that case the words "against him" will be redundant. The word "judgment" used is also not out of place, nor does it carry meaning other than the one which is given to it in the definition clause. In the judgment which is so pronounced the reason which the Court gives is that the defendant has failed to file the written statement. If the Court give this reason for passing the order, it becomes a judgment and it cannot be successfully argued by any person that the reason is uncalled for or fallacious. In Muhammad Sharif v. Ghulam Gilani (P L D 1961 Lah.609), Anwarul Haq, J., held as: "In the present case, the plaintiff alleged that he was entitled to recover Rs. 10,203‑13‑0 from the defendant, and there was no denial of these assertions on behalf of the defendant, as he did not file a written statement (He was in this case required to file the written statement). The trial Court, therefore, did not have any material before it on the basis of which the plaintiff's claim could have been rejected. It seems to me, therefore, that it would be going too far to hold that the order of the trial Court cannot be regarded as a judgment within the meaning of section 2(9) of the Civil Proce dure Code for the reason that it does not mention in detail the basis of the plaintiff's claim." It may be noted that it is not in all cases where the defendant does not file the written statement that the Court can take action under rule

10. It is only where the Court requires the defendant to file a written statement and he fails to do so, that the judgment can be pronounced against him. The Court map ask the defendant to be served personally or through substituted service to appear on particular day, and may not ask him to file written statement on that day. If the defendant is served but he does not appear or if he appears and does not file the written statement, the Court cannot pass an order against the defendant under rule 10 of Order VIII and pronounce, judgment against him because the condition precedent for passing the order under the said rule is that the defendant should have been required to file the written statement. The Court in such a case can only order ex parte proceedings against the defendant, and pronounce judgment against him on proof of the case by ex parte evidence. When the defendant was not asked to file the written statement, his failure to file the written statement in his discretion does not mean that he admits the claim made against him in the plaint. On the other hand, if the defendant is required by the Court to appear on a particular date and also file the written statement, and the defendant in spite of the service does not appear, the Court if it is satisfied that the defendant has been served may not proceed ex parte against him taut instead proceed under rule 10 and pronounce judgment against him, because thel failure of the defendant to file the written statement in such circumstances means that he admits the allegations in the plaint; and the order passed by him will be unexceptionable. The basis of the provisions of rule 10 of Order VIII are that if the defendant is required to file the written statement and he fails to do so, it can be reasonably implied that he has nothing to controvert what is stated in the plaint. The precise question was considered in Vinayak Shreedhar Kulkarni v. Chintaman Vaman Kulkarni (A I R 1948 Bom. 470), and it was held that the failure of the defendant to file a written statement as required by the Court means only that he admits the allegations in the plaint. In this view of the matter. It is not necessary for the Court to record any evidence before it may pronounce judgment under rule 10 of Order VIII. The failure of the defendant to file the written statement when "so required", however, is not necessarily to result into a judgment against him under Order VIII, rule 10, C. P. C. The power given to the Court by this Rule to pronounce judgment is to be exercised only in its discretion. It may or may not pronounce the judgment. Since the Courts are performing judicial functions, they are to exercise discretion also judiciously. They have to take into consideration the facts and circumstances of each case, It is for this reason that an appeal is provided under Order XLIII, rule 1 against the decision taken under rule 10 of Order VIII. In a case where a power is exercised arbitrarily or without any substantial basis, the appellate Court can always intervene.

5. In the present case, the suit was for the recovery of Rs. 1,41,773.70. The defendant appeared before the Court on the 13th of September 1965. He came from Lahore. It was at a time when Pakistan and its people were busy defending them selves against the armed aggression by Bharat. The fact that the defendant appeared in the Court, shows that he really wanted to contest the suit. The Court adjourned the case to the 5th of October 1965, requiring him to file the written statement. It was the first opportunity given to the defendant‑appellant to file the written statement. The defendant was present in the Court. This again would show that he did not let the case go against him by default. He sought an adjournment but it was refused. One adjournment to him on certain conditions would have met the ends of justice because the relief claimed against the appellant involved an enormous amount. The Court could have granted him an adjournment on payment of costs. In my opinion, the Court has not exercised its discretion under rule 10 of Order VIII properly and has also not acted justly in refusing, an adjournment under rule I of Order VIII of the Code of Civil Procedure. In the view of the matter I take, the judgment of the Senior Civil Judge, Lyallpur, dated the 5th of October 1965, is set aside. Since the petitioner was seeking an adjournment on the 5th of October 1965, for filing the written statement, he can now do so on payment of Rs. 500.00 (five hundred rupees) as cost to the respondent. There shall be no order as to costs. A. H. Order set aside,