Skip to content


State of Karnataka Vs. Hemraj Achalchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberR.F.A. No. 99 of 1974
Judge
Reported inILR1985KAR951; 1985(1)KarLJ373
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(9) - Order 8, Rule 5(1), 5(2) and 5(10)
AppellantState of Karnataka
RespondentHemraj Achalchand
Appellant AdvocateSona Vakkund, HCGP
Respondent AdvocateMohini S. Bhandarkar, Adv.
DispositionAppeal allowed
Excerpt:
.....essentials are application of mind as to nature of claim and whether entitled to succeed if plaint facts are taken to be admitted.;the expression 'judgment' in rule 5(2) and rule 10 of order 8 has the same connotation as it has in it definition in section 2(9) c.p.c. a 'judgment' means 'the statement given by the judge of the grounds of a decree or order.' - there are certain minimal essentials inherent in the idea of a 'judgment' as defined in section 2(9) c.p.c. this much at least, it must disclose: that the judge has applied his mind to the nature of the suit-claim and to the aspect whether, if the facts contained in the plaint are taken to be admitted, the suit claim is entitled to succeed. this is apart from the case where, in the circumstances, a judge feels the need to..........either expressly or by necessary implication or does not even state that the allegation is not admitted. rule 5(2), which deals with a situation where no written statement is at all filed, provides that it shall be lawful for the court to pronounce judgement on the basis of facts contained in the plaint. how-ever, in both cases, where an allegation of fact is taken to be, admitted by non-traverse or where, in the absence of the filing of a pleading by the defendant, court can act upon the allegations of fact contained in the plaint, the court has the discretion to call for proof of the allegations independently of the admission by non-denial. rule 10 of order 8 provides that where any party from whom a written statement is required under rule 1 or rule 9 of order viii cpc fails to.....
Judgment:

Venkatachaliah, J.

1. This appeal is by the State of Karnataka and is directed against the decree dated 17-1-1,74 decreeing Respondent-plaintiff's suit for recovery of Rs. 30,110-15, together with interest and casts, said to be the price of goods supplied to the Appellant-defendant.

The suit stood posted to 17-1-1974 for the appearance of the defendant and settlement of issues. Appellant-defendant was served with the summonses in the suit on 3-1-1974. On 17-1-1974 defendant failed to appear and the suit was decreed. The note in the order sheet reads :

'Defendant absent. Placed exparte. Suit decreed as prayed for.'

2. This appeal requires to be allowed on a short-point. Order VIII Rule 5(1) C. P. C. provides that any allegation of fact in the plaint, if not denied specifically or by necessary implication or atleast stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. This provision deals with a case where a written statement is filed but does not 'Traverse' an allegation of fact either expressly or by necessary implication or does not even state that the allegation is not admitted. Rule 5(2), which deals with a situation where no written statement is at all filed, provides that it shall be lawful for the Court to pronounce judgement on the basis of facts contained in the plaint. How-ever, in both cases, where an allegation of fact is taken to be, admitted by non-traverse or where, in the absence of the filing of a pleading by the defendant, Court can act upon the allegations of fact contained in the plaint, the Court has the discretion to call for proof of the allegations independently of the admission by non-denial. Rule 10 of Order 8 provides that where any party from whom a written statement is required under Rule 1 or Rule 9 of Order VIII CPC fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronouncejudgment against him.

3. The expression 'judgment' in Rule 5(2) and Rule 10 of Order has the same connotation as it has in its definition in Section 2(9) CPC. A 'judgment' means 'the statement given by the Judge of the grounds of a decree or order.'' The power of the Court to require any fact, which must otherwise be taken to have been admitted bynon-traverser to be proved otherwise than by such deemed admission, itself implies and carries with it the need for an application of the mind to all circumstances relevant to the issueincluding the one referred to in sub-rule (3). Such application of the mind must be manifest from the record of theProceedings. It may, indeed, happen in a conceivable case that if all the facts contained in the plaint are taken to be admitted, even then, the plaintiff may not be entitled, in law, to the relief he claims. The Court must apply its mind and make it manifest that it has done so.

4. The Court need not write an elaborate judgment. There can, in the very nature of things, be no hard and fast rule, valid for all occasions, prescribing what a document, to be eligible to be called a 'judgment' in cases where defendant does not file a pleading and where the Court proceeds to pronounce a 'judgment' on the basis of facts contained in the plaint, must contain. It must necessarily depend on the facts and circumstances of each case. However, there are certain minimal essentials inherent in the idea of a'judgment' as defined in Section 2(9) CPC. This much at least, it must disclose: that Judge has applied his mind to the nature of the suit-claim and to the aspect whether, if the facts contained in the plaint are taken to be admitted, the suit-claim is entitled to succeed. This is apart from cases where, in the circumstances, a Judge feels the need to call for proof of facts independently of the admission by non-traverse.

5. Adverting to the requirement of a 'judgment' though in a somewhat different context, the Punjab High Court has this to say :

''7. The word 'judgement' as used in Rule 4 of Order 20 of the Code means 'judgment' as defined in Section 2(9) of the Code and must in all eventualities contain a statement by the Judge of the Court of small Causes of the grounds on which the decree or order is passed by him. If any Court of Small Causes has ever thought that Rule 4 of Order 20 authorises it merely to give a final pronouncement on the points of determination involved in a case in its judgment without anything more i.e., without giving any indication at aH of the grounds on which the Judge has come to these findings, the sooner such an impression is removed the better.'

Applying these tests to the present case the conclusion becomes inescapable that the note in the order sheet'Defendant absent. Placed exparte. Suit decreed as prayed for' does not measure-up to the minimal requirements of the concept of a judgment.

6. In the circumstances, we allow this appeal, set-aside the 'judgement' and decree under appeal and remit the matter to the Trial Court for a fresh disposal of the suit in accordance with law.

Since the suit has come to be decreed on the very first day fixed for the appearance of the defendant, we think it appropriate that appellant should have an opportunity of filing its written-statement. The Trial-Court is directed to call this matter on 27-8-1984. Appellant-defendant shall appear before the Court on that day and file its writtenstatement, subject to the condition that appellant shall pay, to the plaintiff-respondent, as condition-precedent, costs of Rs.300/-. If the costs are not paid on or before 27-8-1984 and the written-statement not filed on 27-8-1984, the Court shall proceed on the premise that defendant has nowritten-statement to file in the suit. As respondent-plaintiff was not represented at the hearing of this appeal, the Trial Court shall cause a fresh notice to be issued to the respondent-plaintiff, or its Learned Counsel, notifying the date ofhearing of the suit on remand. Parties will bear and pay their own costs in this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //