1. This is a Miscellaneous First Appeal by the defendants against the order D/- 16-10-1981 passed by the 13th Additional City Civil Judge, Bangalore City, in Misc. No. 407/81 dismissing the petition filed under O. 9, R. 13, C.P.C. by the defendants.
2. The respondent Bank filed a suit in O.S. No. 96/1977 on the file of the Principal Civil Judge, Bangalore, for recovery of the amount from the defendants. The defendants appeared before the court below on 8-8-1977 and also had engaged a counsel. The defendants took as many as 8 adjournments to file the written statement. The case was posted to 10-1-1978 for filing the written statement. Even on that day, the defendants did not file the written statement. Thus the Court proceeded under O. 8, R. 10, C.P.C. ailed passed the judgment and decree. The defendants filed an application under O. 9, R. 13, C.P.C. alleging that their lawyer wanted to file an application calling for better particulars and the Court did not permit them to file and so the case was posted later on on the same day for filing the written statement. At the adjourned time, the defendants were absent and thus the Court proceeded to pass the judgment in the absence of the defendants.
3. The court below dismissed the petition. Hence the Miscellaneous First Appeal by the defendants.
4. The question that would arise for consideration is whether the judgment and decree passed under O. 8, R. 10, C.P.C. would attract the operation of O. 9, R. 13, C.P.C. or whether the parties Suffering such a judgment and decree would have only a right of Regular Appeal.
5. Order 8, R. 10, C.P.C. as it stands amended by the Amendment Act of 1976, reads as : -
'Procedure when party fails to present written statement called for by Court:- Where any party from whom a written statement is required under R. 1 or R. 9, fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.'
Rule 10 before it was amended 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 amendments carried out in R. 10 are that the written statement required to be filed must be one under O. 8, R. 1 or R. 9. Then the next amendment introduced is that the word 'permitted' has been used. The unamended R. 10 only gave discretion to the Court to pronounce a judgment while the amended section makes it mandatory for the Court to pronounce judgement against him. It further says that on the pronouncement of such judgment, a decree shall be drawn up. These words viz., that 'on the pronouncement of such judgement a decree shall be drawn up' are introduced by the amendment. It was not to be found in the old R. 10. Formerly if a judgment was pronounced under O. 8, R. 10, it was treated as an appealable order and 0. 43, R. 1 (b) provided for an appeal. O. 43, R. l(b) is repealed. Therefore on account of the repeal of O. 43, R. l(b), the right of filing a Miscellaneous Appeal against the judgment pronounced under O. 8, R. 10 is taken away. The simple repeal of such a valuable right must have some meaning. Now the amended R. 10 speaks that 'On the pronouncement of such judgment, a decree shall be drawn up' will have to be given some meaning especially in view of the taking away of the right of appeal provided by O. 43, R. l(b). The definition of 'decree' given in S. 2(2), C.P.C. stated that a decree shall not include any adjudication from which an appeal lies as an appeal from an order. So any judgment pronounced under the unamended R. 10 could not be followed by a decree within the meaning of S. 2(2) because a Miscellaneous Appeal had been provided by O. 43, R. l(b). Therefore, my judgment that was pronounced under the unamended R. 10 only amounted to an order and therefore the right of appeal under O. 43, R. 1(b) had been provided. Therefore in view of the repeal of O. 43, R. 1 (b) and in view of the specific use of the words 'a decree shall be drawn up', it appears to me that the Legislature intended to provide rather better remedies to the party who suffered a decree passed under O. 8, R. 10, C. P. C.
6. O. 17, R. 3 C. P. C. reads as : -
'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,-
(a) if the parties are present. proceed to decide the suit forthwith; or
(b) if the parties are or any of them is absent, proceed under R. 2.'
Therefore O. 17, R. 3, C.P.C. contemplates two stages. One is if the parties are present and the other is if the parties are or any of them is absent. If the parties are present, then the Court will have to proceed to decide the suit forthwith. If the parties are or any of them is absent, then the Court will have to proceed only under O. 17, R. 2, C.P.C. It is a case where the defendants were absent when the judgment was pronounced under O. 8 R. 10, C.P.C. Therefore it is O. 17, R. 3(b) that would be attracted to the facts of the present case. O. 17, R. 2 reads as : -
'Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.'
Therefore, if the judgment and decree are Pronounced under O. 8, R. 10 (amended), then the party would have a right to proceed under O. 9 also. Then the question would arise whether the word hearing used in R. 2, and R. 3 has got a separate connotation. O. 8 of the C.P.C. relates to the filing of the written statement, set off and counter claim. Rule 1 says that the defendant shall at or before the first hearing or within such time as the Court may permit present a written statement of his defence. Therefore the word 'hearing' used in O. 8, R. 1, C.P.C. says that the stage of hearing starts from the moment the defendant puts in his appearance in the Court after being served with summons. Therefore the word hear in used in R. 2 and R. 3 of O. 17, C.P.C. also would have the same meaning. If it is so then any judgment or decree passed under O. 8, R. 10 would clearly amount to a judgment and decree popularly called as ex parte judgment and ex parte decree. The word ex parte' only means that pronounced in the absence of a party. It has not got any other meaning. If it is so, then O. 9, R. 13, C.P.C. would be applicable even to a case where a judgment and decree have been passed under O. 8, R. 10., C.P.C.
7. The word 'decree' has been specifically, used in O. 8, R. 10 by the amendment Act in order to bring it. within the ambit of O. 9, R. 13, C.R.C. If the word 'decree' had not been used in O. 8, R. 10, C.P.C. O. 9, R. 13 C.P.C. would not have come into play, because O. 9, R. 13, C.P.C. applies only to a case of decree being passed ex parte. Therefore, the insertion of the word 'decree' in R. 10 now, in my opinion, is meant to give an alternate relief to the party under O. 9, R. 13, C.P.C., instead of driving him to Regular Appeal which would involve a lot of expense and energy and the decision of which matter may take unnecessarily longer time.
8. The learned counsel Shri Visveswara for the revision petitioner referred me to Abdul Aziz v. A. Raj Chhabra. : AIR1968All119 . It was a case where the defence of a defendant had been struck off under O. 11, R. 21, C.P.C. and a Judgment was pronounced against him. The Allahabad High Court said as:-
'It shall thus be seen that R. 13 is wide enough to cover all cases of ex parte decrees no matter for what reason the ex parte decree has been passed. A perusal of O. fl, R. 21 C. P.C. would show that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant 'be placed in the same position as if he has not defended.' This also indicates that once the defence has been struck off under O.11, R. 2 1. C. P.C., the position would be as if the defendant had not defended and accordingly the suit would proceed ex parte.'
Similar would be the situation covered by O.8, R. 10, C.P.C. As the defendant failed to file the written statement as called upon by the Court, the Court has been empowered to pronounce the judgment and pass a decree. Thus, it means that the judgment and decree will have to be passed in a case coming under O. 8, R- 10, C.P.C. as if he had not defended the matter. Therefore the principle laid down in the said Abdul Aziz's case also lends assurance to the view that I have taken.
9. The learned counsel Shri Mani placed before me the decision in Sangram Singh v. Election Tribunal, Kotah. : 2SCR1 . The most important point that was involved in the said case was as to what is the meaning of the word 'hearing' and the first hearing and the adjourned hearing. It does not cover the case under O. 8. R. 10, C.P.C. at all. The following observation of the Supreme Court in para 16 would be of material help in the present case :-
'Now a Code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.'
The Supreme Court has further stated in para 17 as : -
'Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.'
The Supreme Court has also stated in para 30 as :-
'Now R. 2 only applies when one or both of the parties do not appear 'on the day fixed for the adjourned hearing'. In that event, the Court is I thrown back to O. 9, with the -additional power to make 'such order as it thinks fit'. When it goes back to O. 9 it finds that it is again empowered to proceed 'ex parte' on the adjourned hearing in the same ways as it did, or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed 'ex parte' is a right which accrues from day to day because at each adjourned hearing the Court is thrown back to O. 9, R. 6.'
This observation of the Supreme Court makes it absolutely clear that the right to proceed ex parte is a right which would accrue from day to day because at each adjourned hearing the Court is thrown back to O. 9, R. 6. Therefore right to proceed ex parte does not depend upon static circumstances or position. It is a matter which will have to be applied day to day in every matter. Therefore merely because 8 adjournments had been taken by the defendants in this case, it does not mean that the Court could not proceed ex parte against them, when the defendants were absent.
10. Therefore, in the result, I find that the judgment and decree contemplated under O. 8, R. 10, C.P.C. amount to an ex parte judgment and ex parte decree and thus attract O. 9, R. 13, C,P.C. also.
11. I arn fully aware that the remedy under O. 9, R. 13, C.P.C. is only an alternate remedy. The person who suffers an ex parte decree has not only got a right to proceed under O. 9, R. 13, C.P.C. but also he has got a right to file a Regular Appeal. If he wants he can proceed in both ways or resort to any one of the remedies. Therefore, the present application filed under O. 9, R. 13 C.P.C. by the defendants against the ex parte judgment and decree passed by the Court below under O. 8, R. 10, is competent and maintainable.
12. If it is so, then the question arises whether the defendants have satisfied the requirements of O. 9, R. 13 C.P.C. The evidence adduced by the defendants shows that their lawyer told them on that day that he would file an application seeking better particulars. According to them, the lawyer filed such an application, but the Court was rather not inclined to accept it. Thus they were under the bona fide impression that the Court may grant such an application when it adjourned the matter to a latter part of the day. They say that they were absent at the adjourned time on that day. Therefore their impression that the Court might grant time to them in order to enable them to seek further particulars, cannot be said to be unfounded. Therefore they had sufficient grounds to remain absent at that time when the judgment and decree were passed against them under O, 8, R. 10, C.P.C. Therefore, the Court below was wrong in holding that sufficient grounds had not been made out by the defendants for their absence at the time when the judgment and decree were passed against them ex parte.
13. Before I close the matter, I would like to reproduce the ex parte judgment and decree passed by the Court in the suit. It reads as : -
'Not file. Smt. - For Smt. S. P. prays for time. 8th time is granted. Advocate prays for time till 3 p.m. Kept by. Called at 3 p.m. Advocate and party absent Waited till 4-.50 p.m. Advocate has not turned up. Plaint averments make out suit claim. As no written statement is filed, the suit is decree as prayed for under O. 8, Rr. 10 and 5 of the C.P.C. with three months time for payment. Draw up preliminary decree.'
This is not the way in which a Court is expected to pronounce the judgment and decree when the rights of the parties are involved. Merely because the defendants are absent, it does not mean that the plaintiff is entitled to a decree. The Court will have to scan the material available on record in order to find out whether the plaintiff has really made out a case or not.
It is no doubt true that O. 8, R. 5(l) C.P.C. says as : -
'Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.'
O. 8, R. 5(2) C.P.C. says as:-
'Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.'
If the defendant does not file the written statement it may be lawful for the Court to pronounce the judgment on the basis of the facts contained in the plaint. Merely because it is lawful, it does not mean that the Court should abdicate its function of finding out as to whether the plaintiff has already made out a case or not. Otherwise the results would be rather disastrous, If in a suit by the plaintiff seeking a declaration that he is the adopted son of one B and also for possession, the defendant does not file the written statement, should the Court proceed to conclude that the allegation of adoption mentioned in the plaint is proved. It may be lawful for it to take that aspect into consideration. In Eswara Devara v. Nagarajaiah, (1983) 2 Kant LJ 89, it is held as :-
'Under R. 10 of O. 8 of C.P.C. as it stands after amendment by Act 104 of 1976, where a defendant from whom a written statement is required under R. 1 or R. 9, fails to present the same within the time permitted or fixed, as the case may be, R. 10 comes into play and the Court has to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit
The minimum that is required of a judgment of a Court of Small Causes is that it should contain the points for determination and the decision thereon.
Where the order amounts to a judgment within R. 10 of C.P.C. if it does not contain the points for determination and the decision thereon as required under O. 20, R. 4(l) of C. P.C., it is liable to be set aside.
Even under O. 8, R. 5(2), it is obligatory for the Court to examine the plea and the facts set out in the plaint to find out whether the plaintiff has made out a case for a decree.'
Therefore, the principles laid down by this Court in the said case require that even in ex parte cases the Court should apply its mind to the allegations made in the plaint and should convince its conscience to find out as to whether the allegations made by the plaintiff are really sufficient and proved to the extent as to enable him to get a decree in the matter. The judgment and decree passed in this case, in my opinion, are not in consonance with law and rules at all. Therefore the said judgment cannot be allowed to stand.
14. Even apart from it, I have already dealt with the matter holding that it falls under O. 9, R. 13 C.P.C.
15. In the result, the order passed by the Court below is set aside. The appeal is allowed. The suit is restored to file. The City Civil Court, Bangalore City, should take it back to file and proceed with the suit. The Court below should, however, give one more opportunity to the defendants to file the written statement. Both the Advocates are directed to keep their parties or themselves present in the Court of the Principal City Civil Judge, Bangalore City, on 20-9-1984, in order to receive further instructions in the matter. The Principal City Civil Judge may either himself proceed with the suit or may make it over to any one of the additional Judges for disposal. No costs.
16. Appeal allowed.