Written statement

Through amendment in written statement one cannot resile from the admission if made earlier in his written statement.

Evasive denial in written statement is nothing but an admission of fact on the part of defendant.

Section 6 of the Punjab Partition of Immovable Property Act, 2012, provides a period of 30 days to a defendant for filing the written statement which starts from the date of first appearance of defendant before the Court

Under subsection (2) of S. 6, penalty has been provided if the written statement is not filed within the stipulated time and in case of such default, the Court "shall" strike off the defence of the defendant as a consequence of which he shall also not be allowed to lead his evidence.

Respondents filed a suit for partition wherein the petitioners filed a written statement after 30 days of their first appearance

Trial Court dismissed the respondents' application for striking off the defence of petitioners, however, Appellate Court accepted the same

Contention of petitioners was that since time was granted by the Trial Court for filing the written statement, thus the petitioners could not be penalized due to act of the Court

Validity

Mandate of S. 6 of Punjab Partition of Immovable Property Act, 2012, was very clear and unequivocal as a categoric duty had been cast upon the defendant with regard to filing the written statement within the stipulated time and the Court was not invested with the power to extend such period

Since the consequence of non-fulfilling the provision of law was also given thus the mandate of introducing such a penal provision would be frustrated if the argument was accepted

Constitutional petition was dismissed.

Use of word "shall" in S. 6 gives a clear indication that the provision is mandatory in nature and has to be adhered to by the courts in letter and spirit and no exception can be created.

Period of filing written statement shall not ordinarily exceed thirty days, however, under O.VIII, R.10, if the written statement is not filed within the time fixed by Court, the Court may pronounce judgment against the party, or pass an appropriate order in relation to the suit as it thinks fit.

Proceeding before the Family Court is governed by the special law i.e., the Azad Jammu and Kashmir Family Courts Act, 1993

Purpose of enacting said law has been given in clear words in the Preamble, which is expeditious settlement and disposal of matrimonial disputes and to avoid the protracted litigation between the parties

Under the Act, the specific provisions regarding the intimation to the defendant and filing of written statement have been provided

Legislature has prescribed the time for filing the written statement from the date of the notice

Since the defendant had failed to file the written statement within time, therefore, the Family Court had rightly closed the right of his defence

Appeal was dismissed.

Specific mechanism is provided in the Family Courts Act, 1964, for settlement of disputes relating to marriage and family affairs and also other ancillary matters connected therewith

Basic object of the Family Courts Act, 1964 is to facilitate the party seeking their rights, to provide justice and to curtail insufficient delay in legal and procedural formalities as the Act does not intend to create hurdles, problems and difficulties for spouses or for the Courts dealing with their matters

Section 9(5) of the Family Courts Act, 1964, envisages that when the defendant does not appear on the date fixed by the Court, he would be proceeded ex parte

Section 9(5) provides that in case when the defendant is proceeded ex parte and on showing or assigning good cause or reasons for his non-appearance, ex parte proceedings are set aside

Section 9(6) of the Act provides the period within which the application for setting aside of ex parte decree can be filed and when it is proved that either the defendant was not served properly or he was prevented by sufficient cause from appearing, when the suit was heard or called for hearing, the Court shall set aside the ex parte decree.

Comments filed by respondent are only meant for the Court and not for the petitioner as he has to stand on his own legs to prove his case in the writ petition.

Non-filing of written statement or omission to file written statement does not amount to an admission of the facts.

Petitioner had not alleged that the said receipts pertained to the dowry articles being claimed by respondent in her suit

Stance of the petitioner was that his parents had given some things from their own funds for which they had receipts

Petitioner had not filed a cross-suit or cross-claim to recover those articles and the alleged receipts might have been relevant in a case where the petitioner sought recovery thereof but were not relevant in determination of the claim of respondent

Unspecific receipts with no details of items as to which they related, being private documents, the possibility of their fabrication could not be ruled out particularly in a situation where copies of the documents were never produced at the initial stage and no details were given in the written statement nor were the documents relied upon or confronted to the witnesses of the respondent or even endeavoured to be produced during the oral evidence of the petitioner

Constitutional petition was dismissed.

Despite repeated opportunity awarded to defendants, they failed to file written statement therefore they were debarred from filing the same

Validity

Because of failure on the part of defendants to file written statement within time, a valuable right had accrued in favour of plaintiff

Right accrued to a party in judicial proceedings because of default committed by other party could not be taken away lightly

No cogent or valid justification, explanation, reasons or grounds were disclosed by defendants for such default or delay

Division Bench of High Court had given directions and the same could not be ignored and Single Judge of High Court who was to decide the suit expeditiously within six months; there was a limit of granting time to defendants for filing written statement and they could not be allowed indefinite time to file written statement according to their own will or convenience

Application was dismissed, in circumstances.

Claim of appellant would stand admitted by him due to non-filing of written statement.

High Court, keeping in view the valuable rights of petitioner to defend himself before the Family Court and in view of Art. 10-A of the Constitution permitted the petitioner to submit written statement subject to payment of cost.

Written statement by itself does not have any evidentiary value unless deponent of pleadings (plaint or written statement), enters into witness box to lead evidence.

Neither S.9 nor Sched. of S.5 of Family Courts Act, 1964 envisaged that the husband/defendant could establish counter claim of gold ornaments in his written statement.

Such written statement could not be treated as evidence in the case.

Plaintiff's version was supported through his evidence while defendants despite opportunities did not lead any evidence in the matter

Written statement containing averments of a party was required to be proved through cogent evidence

If a party did not produce any evidence to support the contents of its written statement then in absence of any admission on the part of plaintiff the averments contained in the said written statement could not be treated as evidence

Contentions/assertions and evidence led by the plaintiff were deemed to be admitted by the defendants

General denial on the part of defendant in their written statement was of no evidentiary value

Defendants had failed to produce any evidence on the record to rebut the genuineness of documents produced by the plaintiff

Plaintiff had established his right over the suit property and he was entitled to raise construction thereat in accordance with the building plan approved by the concerned authority

Defendants were directed to remove the encroachment from the common street between the properties of both the parties

Suit was decreed in circumstances.

Court was not bound to adjourn the case for ninety days or even thirty days enabling the defendants to file written statement

Defendants seemed to be not interested in progress of the case

Impugned order passed by the Appellate Court was set aside

Revision was allowed accordingly.

Written statement must deal specifically with each allegation of fact in the plaint and when the defendant denied any such fact, he must not do so evasively but answer the point with substance

Where denial of fact was not specific but evasive, the fact shall be taken to be admitted.

When in written statement defendant had admitted a fact then there existed no need for plaintiff to prove the same.

Under O. VIII, R. 5, C.P.C., defendant must deal specifically with each allegation of fact of which he does not admit to be ture

If defendant fails to do so, fact pleaded in plaint will be deemed to have been admitted by defendant.

Fact admitted needed no proof, especially when such admission had been made in the written statement.

Statement made in written statement could not be treated as evidence.

Scope of the suit was to be determined with reference to averments made in the plaint only and not with reference to written statement.

No hurdle would be caused if defendant was allowed to file independent written statement to raise all available pleas factual as well as legal which he deemed fit to save his rights sub judice before the trial court

Defendant was at liberty to raise as many pleas which he deemed fit in his written statement to enable the court to reach just, proper and correct conclusion

Constitutional petition was allowed.

Written statement could not be treated as evidence and would have no evidentiary value without subjecting its maker to cross-examination in witness box

Principles.

Plea raised by plaintiff was that defendant-company did not produce any evidence, therefore, its defence had been struck of

Validity

Party which filed written statement, if had not brought forth any witness in support of the same, that party could not rely on contents of such written statement, which had to be taken out of consideration

Such defendant had no right to put up his defence, it was written statement which was taken out of consideration and not defence of defendant-company was struck of

Defendant-company could be able to put up defence through cross-examining witnesses of plaintiff and by relying upon evidence adduced by plaintiff

As suit of plaintiff was barred by time and limitation had barred the remedy, therefore, High Court declined to go into the merits of the suit

High Court in exercise of appellate jurisdiction set aside concurrent judgments passed in favour of plaintiff and suit was dismissed

Second appeal was allowed in circumstances.

Written statement- -Such statement, could not be considered as evidence, unless the maker of the statement appeared in the court to testify the same.