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Mathew Elenjical and anr. Vs. the Nagpur Roman Catholic Diocesan Corpn. (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 158 of 1977
Judge
Reported inAIR1978MP39; 1977MPLJ811
ActsCode of Civil Procedure (CPC) , 1908 - Order 8, Rules 1, 5(2) and 10; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantMathew Elenjical and anr.
RespondentThe Nagpur Roman Catholic Diocesan Corpn. (P) Ltd.
Appellant AdvocateY.S. Dharmadhikari, ;M.I. Shareef and ;Ku. Kanti Rao, Advs.
Respondent AdvocateR.K. Pandey and ;Fakhruddin, Adv.
DispositionAppeal allowed
Cases ReferredShriram Surajmal v. Shriram Jhunjhunwalla
Excerpt:
.....who appears in court and assigns good reason to the court's satisfaction for grant of more time to file written statement. what really matters is that the court is not obliged necessarily to pronounce judgment against a defendant merely because the defendant has failed to file the written statement within the time given by the court. on failure of the defendant to file the written statement within the time allowed, the court has the power to pronounce judgment against him for mere non-filing of the written statement; the court has, however, a discretion in the matter to be exercised judicially on the facts of each case and it is not incumbent on the court to pronounce judgment against the defendant simply because he has failed to file the written statement as required under rule 1; the..........who appears in court and assigns good reason to the court's satisfaction for grant of more time to file written statement. such a result, no doubt, would be illogical.10. rule 10, therefore, in its ordinary meaning gives the court a discretion, either to pronounce judgment against the defendant on mere non-filing of the written statement or to make such order in the suit as it thinks, fit. this, would mean that the court may in its discretion even grant more time to the defendant by adjourning the case. what really matters is that the court is not obliged necessarily to pronounce judgment against a defendant merely because the defendant has failed to file the written statement within the time given by the court. it follows that the court must first decide the question whether a case for.....
Judgment:

Verma, J.

1. This is a defendants' first appeal against the judgment and decree dated 16-7-1977 passed by the Additional District Judge, Betul, in Civil Suit No. 2-A of 1977, acting under Order VIII, Rule 10, Civil P. C.

2. The point for decision in the present case is; the true effect of Sub-rule (1) of Rule 1; Sub-rule (2) of Rule 5 and Rule 10 of Order VIII, Civil P. C., as they now exist after the recent amendment of the Code by the C. P. C (Amendment) Act No. 104 of 1976. We shall now state the facts which alone are relevant for the decision of this point.

3. The suit was filed in the trial Court on 26-3-1977. Summonses were issued to the defendants in which the date of first hearing was mentioned as 15-4-1977 and a direction was given for filing the written statement a week before that date. Defendants failed to appear or file the written statement as required and consequently on that date, the Court ordered that the suit be heard ex parte and 30-4-1977 was fixed for recording plaintiff's evidence. Meanwhile on 21-4-1977, defendants applied for setting aside the ex parte order. That application was allowed on 11-5-1977 and the ex parte order made earlier was set aside. By the same order, the defendants were required to file their written statement on 1-7-1977. On 1-7-1977, the defendants filed their written statement but omitted to file the schedule thereto which was mentioned therein. That schedule was referred for describing the properties specified therein. The case was then adjourned to 16-7-1977. Obviously the incomplete part of the written statement, i. e., the schedule, had to be filed by that day. This was not done and the schedule remained to be filed even on 16-7-1977.

4. In the above circumstances, on 16-7-1977 the trial Court came to the conclusion that it had no option in the matter and construing Order VIII, Rule 10 Civil P. C., as containing a mandate to decree the suit in plaintiff's favour for non-filing of the written statement, the trial Court proceeded to decree the entire suit for this reason alone. This has led to the present appeal.

5. The main question before us is whether the trial Court was right inreaching the conclusion that failure to file the written statement on a date fixed for the purpose obliges the Court after the recent amendments made in Order VIII, Civil C. P., to decree the suit under Order VIII, Rule 10, without giving any discretion to the Court to pass any other order. The answer to this question depends mainly on the meaning and true effect of the provisions noted earlier by us. We shall now consider the meaning of those provisions.

6. Sub-rule (1) of Rule I of Order VIIIreads as under :--

'1. Written statement.--(1) 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.'

By the recent amendment, the earlier Rule 1 has been renumbered as Sub-rule (1) of Rule 1 and the words 'may, and, if so required by the Court' have been omitted therein. These omitted words occurred earlier within the brackets. The remaining sub-rules added by the recent amendment do not concern us for deciding the point involved in this appeal. The plain meaning of this provision after its amendment in this manner clearly is that the defendant must file his written statement within the time allowed by the Court. In short, filing of the written statement by defendant has now been made obligatory. Omission of the words indicated earlier from the provision reinforces this conclusion.

7. Sub-rule (2) of Rule 5 then is asunder:--

'(2) 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.' The earlier Rule 5 continues after amendment as Sub-rule (1) and the subsequent sub-rules added to Rule 5 are new. The present Sub-rule (1) provides that every allegation of fact made in the plaint unless denied specifically or by necessary implication, is to be taken as admitted except against a person under disability. The proviso therein, however, gives a discretion to the Court to require any fact so admitted to be proved otherwise than by such admission. As earlier stated, the old Rule 5 has been retained as Sub-rule (1) thereof. While construing that provision, the majority of the High Courtshad taken the view that non-filing of a written statement did not fall within its ambit. The view of the Bombay High Court, however, was contrary and it had held that non-filing of a written statement must be construed under this provision as an admission of the plaint; Shriram Surajmal v. Shriram Jhunjhunwalla (AIR 1936 Bom 285). Obviously, Sub-rule (2) of Rule 5 has been enacted to give effect to this view of the Bombay High Court and Sub-rules (3) and (4) thereafter have been introduced as consequential provisions. The plain meaning of the unambiguous Sub-rule (2) of Rule 5 is that the non-filing of written statement by the defendant can be construed as an admission of the plaint by the defendant and it will be lawful for the Court to pronounce judgment in plaintiff's favour for this reason alone. It, however, also gives a discretion to the Court to require the facts alleged in the plaint to be proved otherwise than by such implied admission notwithstanding the non-filing of the written statement. aS in the case of Sub-rule (1), this provision also is not to apply against a defendant under a disability. It is obvious that the discretion given to the Court under Sub-rule (2) to require the proof of a fact notwithstanding the non-filing of a written statement is similar to that given by the proviso in Sub-rule (1). Thus, Sub-rule (2) lays down that as a result of non-filing of the written statement by the defendant, the Court in its discretion shall have the power to pronounce judgment treating the averments made in the plaint as admitted. It has also been made clear that the Court has a discretion in the matter so that the choice is left to the Court to act in one way or the other depending on the facts of each case. In short, by virtue of Sub-rule (2) of Rule 5, the Court is empowered to decree the suit in plaintiff's favour merely as a result of non-filing of the written statement but it is not necessary to do so and the Court has been given a discretion to act one way or the other in each case depending on the facts thereof. Sub-rule (3) specifically provides that while exercising its discretion under Sub-rule (1) or Sub-rule (2), the Court shall have due regard to the fact whether the defendant was represented by a lawyer or had the capacity to engage a lawyer. It is obvious that the Court's discretion would depend on the facts of each case and it has to be a judicial discretion. Sub-rule (4) merely provides that wherethe suit is decreed for non-filing of the written statement under Sub-rule (2), a decree shall be drawn up so that the further appeal would be against the decree,

8. We now come to Rule 10 which is as under:--

10. Procedure when party fails to present written statement called for by Court.-- Where any party from whom a written statement is required under Rule l or Rule 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.'

This rule provides the consequence of non-filing of the written statement as required by Rule 1 or Rule 9. In the present case, we are not concerned with Rule 9. The amendment made in this rule leaves no doubt that it applies also to a case of non-filing of written statement as required by Rule 1. The rule, no doubt, says initially that the Court shall pronounce judgment against the defendant on his failure to file the written statement required under Rule 1 or Rule 9 but it then proceeds to enable the Court to 'make such order in relation to the suit as it thinks fit.' The use of the word 'or', which is normally disjunctive, after 'shall pronounce judgment against him' to separate it from the words 'make such order in relation to the suit as it thinks fit' shows that the discretion of the Court has been retained in such a situation as well. Moreover, the latter expression would be redundant and meaningless if the Court had no option except to pronounce judgment against the defendant, There is no reason why the word 'or' should not be given its plain and ordinary meaning as a disjunctive to indicate that the two powers contained in the rule before and after that word were meant to lay down distinct and separate powers leaving the discretion to the Court to exercise one or the other depending on the facts of a particular case. The rule of harmonious construction also requires such a meaning to be given to Rule 10. As already noticed, on failure of the defendant to file the written statement required under Rule 1, the Court's power under Sub-rule (2) of Rule 5 is attracted which gives a decretion to the Court to either pronounce a judgment in plain-tiff's favour for mere non-filing of the written statement or not to do so, depending on the facts of a particular case. If Rule 10 is construed to mean that it leaves no discretion with the Court on defendant's failure to file a written statement under Rule 1 and the Court must necessarily pronounce judgment against the defendant for that reason alone, then Sub-rule (2) of Rule 5 and Rule 10 also cannot be reconciled. As already pointed out, the plain meaning of Rule 10 giving the word 'or' occurring therein its ordinary meaning as a disjunctive instead of needlessly reading it as 'and' leaves a discretion with the Court and on that construction there is no disharmony between these two provisions. For this reason also the plain meaning of the rule leaving a discretion with the Court must obviously be preferred. We may usefully refer to the settled principle for construing the word 'or' as summarised in Justice G. P. Singh's Principles of Statutory Interpretation, Second Edition, at page 247 as follows:--

'The word 'or' is normally disjunctive and 'and' is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context. As stated by Scrutton L. J. 'You do sometimes read 'or' as 'and' in a statute. But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. And as pointed out by Lord Halsbury the reading of 'or' as 'and' is not to be resorted to unless some other part of the same statute or the clear intention of it requires that to be done.'

9. There is yet another incongruity which is saved by this construction. Obviously when defendant fails to appear and the suit proceeds ex parte, the plaintiff is required to make out a prime facie case by leading evidence and the suit cannot tee decreed forthwith, merely on account of the absence of the defendent. If Rule 16 were construed to leave no discretion with the Court making it incumbent that the suit must invariably be decreed on non-filing of written statement, it would result in giving greater benefit to a defendant who does not even care to remain present, as against a defendant who appears in Court and assigns good reason to the Court's satisfaction for grant of more time to file written statement. Such a result, no doubt, would be illogical.

10. Rule 10, therefore, in its ordinary meaning gives the Court a discretion, either to pronounce judgment against the defendant on mere non-filing of the written statement or to make such order in the suit as it thinks, fit. This, would mean that the Court may in its discretion even grant more time to the defendant by adjourning the case. What really matters is that the Court is not obliged necessarily to pronounce judgment against a defendant merely because the defendant has failed to file the written statement within the time given by the Court. It follows that the Court must first decide the question whether a case for granting more time for filing the written statement is made out or not. It is only when the defendant's prayer for grant of more time for filing the written statement has been refused, the question of, pronouncing judgment against him for non-filing of the written statement or making any other order in relation to the suit, such as for example, requiring proof of the facts otherwise than by such admission, can arise. Each case has obviously to be decided on its own facts.

11. The net result of these provisions is that the defendant must, under Sub-rule (1) of Rule 1 file his written statement within the time allowed for this purpose by the Court; on failure of the defendant to file the written statement within the time allowed, the Court has the power to pronounce judgment against him for mere non-filing of the written statement; the Court has, however, a discretion in the matter to be exercised judicially on the facts of each case and it is not incumbent on the Court to pronounce judgment against the defendant simply because he has failed to file the written statement as required under Rule 1; the Court in its discretion is empowered to make any order in relation to the suit as it thinks fit when such a situation arises; the Court can in its discretion even grant a further adjournment for filing the written statement and when the Court does not consider it a fit case for grant of further time to file the written statement, any other order which the Court considers proper in a particular case can be passed; such other order after refusing further time to file the written statement, may even be of requiring the plaintiff to prove the plaint averments notwithstanding the absence of the written statement, as laid down in Sub-rule (2) of Rule 5. For obvious rea-sons, we are only giving a few examples of the orders which may be passed where the Court refuses to grant further time to file written statement and yet does not think it proper to pronounce judgment against the defendant for mere non-filing of the written statement. The examples are only illustrative and not intended to be exhaustive.

12. The statement of objects and reasons for making these recent amendments in the Civil P. C. also indicate that the view taken by us is in consonance with the same. It is stated therein that amendments in Order VIII were being made to give effect to the recommendations of the law Commission for the purpose of ensuring that written statements and documents were filed without delay. It is clearly said therein that the amendment made in Rule 1 of Order VIII was to make the filing of the written statement obligatory; Sub-rule (2) of Rule 5 was being inserted to confer a discretion in the Court to treat allegations in the plaint as admitted and to pronounce judgment on the basis of such allegations when no written statement had been filed by the defendant; and Rule 10 was amended to provide for the consequences of non-filing of a written statement (vide, Gazette of India, Extraordinary, Part II, Section 2, dated April 8, 1974, pages 294, 295, 296, 314 and 315). Thus, the view taken by us is not only a harmonious construction of all these provisions giving them their plain and ordinary meaning but is also in conformity with the Objects and Reasons for making these amendments. The result of this view is to give the Courts power to pronounce judgment in case of a contumacious defendant but at the same time it retains the Court's power to make such other order in the suit including grant of an adjournment as may be considered appropriate in the particular facts of the case. It, therefore, draws a proper balance between the necessity of an expeditious trial and the desirability of leaving the ultimate discretion to the Court to decide how much time should be granted in a particular suit for performance of a particular act by the defendant.

13. We have, therefore no doubt thatthe learned trial Judge was in error when he took the view that under Order VIII, Rule 10. C. P. C., he had no discretion in the matter and it was incumbent upon him to decree the suit in plaintiff's favour simply because schedule to the writtenstatement had not been filed on 16-7-1977. We are satisfied that in the facts of the present case, the exercise of proper discretion required the grant of some more time to enable filing of the schedule which had already been referred in the written statement filed by the defendants. Learned counsel for the appellants states that he is prepared to file this schedule in this Court. We, however, think it proper that the schedule should be filed in the trial Court itself since the case has to go back for a fresh decision on merits in accordance with law.

14. It was also argued before us that the present is not a case non-filing of the written statement since only a schedule thereto had remained to be filed, the written statement having been filed on 1-7-1977. In view of the conclusion reached by us, it is not necessary to decide whether the written statement minus the schedule could be treated as a written statement so that the power under Order VIII, Rule 10, C. P. C., invoked by the trial Court, was not available.

15. Consequently, we allow this appeal and set aside the judgment and decree of the trial Court. The defendants are permitted to file the schedule to their written statement on or before 28-10-1977 on which date the parties shall appear before the trial Court. No further notice of appearance in the trial Court is required to be given. The trial Court shall then proceed to decide the suit on merits in accordance with law treating the written statement as duly filed by the defendants and 28-10-1977 as the date of first hearing in the suit. Costs shall abide the ultimate result of the suit.


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