1. This revision petition has been filed under Section 25 of the Provincial Small Cause Courts Act, by the Union of India, defendant, against the order of Mr. H. K. S. Malik, Additional Judge, Small Cause Court, dated 2nd December, 1970, by which the learned Judge has pronounced the judgment against the defendant petitioner on its failure to file the written statement within the time allowed by the court and the suit has been decreed for a sum of Rs. 325/- with costs.
2. Mr. Y. K. Sabharwal, counsel for the petitioner, has in this revision assailed the legality and validity of the order and decree of the court below. The material facts of the case are that the plaintiff respondent instituted a suit for recovery of Rs. 325/- on the ground that the consignment had been booked by Railway to Delhi on 4th May, 1968 and there was short delivery resulting in the loss to the respondent for which the respondent held the Union of India, as owning the Railways concerned, to be liable. The suit was filed on 15th May, 1970 and was registered and summons for final disposal were issued to the defendant for 10th August, 1970. On that date the attorney of the defendant appeared and sought time to file the written statement, which was allowed and the caw was adjourned to l0th September, 1970. On that date the defendant through its attorney asked for further time to file the written statement which was again allowed and the case was adjourned to, l3th October, 1970. On that date again the defendant stated that the written statement was not ready. Then the court granted a last opportunity to file the written statement and adjourned the case to 11th November, 1970. On the said date the written statement was again not filed. The court passed the following order:
'Written statement not filed. Adjournment prayed. Last opportunity is granted to the defendant for filing the written statement on 2nd December, 1970 subject to payment of Rs. 15/- as costs.'
Then the case came up on 2nd December, 1970. The defendant again did not file any written statement and it sought further adjournment. The court found that there was absolutely no ground for further adjournment and then it proceeded to decide the case under Order 8, Rule 10 of the Code of Civil Procedure and held that the allegations in the plaint made out a case for grant of a decree 5 for Rs. 325/- in favor of the plaintiff for short delivery of one bag of Good Katira and the failure of the defendant to file a written statement amounted to an admission of the facts alleged in the plaint. Accordingly the suit was decreed. It is significant that no evidence of any kind, ex parte or otherwise, was recorded by the court.
3. The Union of India has filed this revision and the main ground is that the court ought to have allowed the defendant a further opportunity to file the written statement. I find that there is no substance in this grievance. The court has allowed sufficient time and opportunity to file the written statement from 10th August to 2nd December, 1970 and had even in spite of two opportunities, given a last opportunity on payment of costs. The conduct of the defendant was certainly contumacious and the court was fully justified in refusing any further adjournment to file the written statement. The court was, thereforee, entitled to proceed ex parte against the defendant.
4. The court below has, however, fallen into, an error of law in applying the provisions of Rule 10 of Order 8 of the Code and pronouncing the judgment. Rule 10 reads as follows:
'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 requirement of filing a written statement from any of the parties is contained in R. 9 the material portion of which is to the effect that 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. Apart from the provisions contained in Rule 9, the provision of Rule I of Order 8 also provides that 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 defense The condition precedent for proceeding under Rule 10, thereforee, is that the court must require the defendant to file the written statement and if on being so required the defendant fails to comply with the order within, the time allowed the court has been given the power to pronounce the judgment against him. The power in R. 10 can as well be exercised against any of the parties if the court calls upon it to file an additional written statement. However, allowing the defendant merely time to file a written statement which he wants to file on his own does not amount to an order by the court requiring the defendant to file the written statement. This legal position is not disputed by either of the counsel and it is amply supported by authorities. Rule 10 of Order 8, thereforee, does not apply to the circumstances of the instant case. The court had thereforee, no jurisdiction to pronounce the judgment against the defendant.
5. In view of my finding that the court had no jurisdiction to pronounce the judgment against a party by way of penalty a power which is specified in Rule 10 of Order 8, and compares with the power under Rule 4 of Order 10 of the Code it follows that after refusing opportunity to the defendant to We the written statement, the court must proceed to hear evidence in the suit ex parte.
Mr. Bhargava has supported the observation of the court below that the failure of the defendant to file the written statement amounted to admission of the facts alleged in the plaint. In my opinion, this observation of the court is not correct. Probably the court had in view the provisions of Rule 5 of Order 8 of the Code, which provide that every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted except as against a person under disability, provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. This provision however, does not apply to a case where a written statement has not been filed. The reason for the rule is obvious. The provisions of Order 8 require the defendant to deny each allegation of fact contained in the plaint specifically or by necessary implication and the defendant has been prohibited from evasively denying the allegations of fact, but he is required to answer the points of substance directly. As a penalty for the defendant in not observing this rule of law, a provision has been made that what the defendant does not deny (or denies evasively) would be deemed to be admitted. But, if a defendant does not file a written statement at all, there is no justification for holding that the defendant has not specifically denied or not admitted in his pleadings any allegation of fact contained in the plaint. 11he position in such a case is substantially similar to the one where the defendant does not appear. It has not been disputed by the counsel for the parties that if the defendant does not appear at all, the court is not empowered to hold that the allegations in the plaint would be deemed to be correct and so a decree could follow except to the extent specifically provided by the law, e. g. Order 37, Rule 2 of the Code. In the absence of a specific provision to that effect, the plaint and the allegations contained therein do not constitute any evidence on the basis of which the court can act and the court is bound to decide the case on the proved evidence produced before it. It was, thereforee, necessary to record ex parte evidence on behalf of the plaintiff. The view that I have taken finds support from Division Bench authority of the High Court of Punjab, reported as M/s Hardyal Chaman Lal v. Union of India, . The Division Bench observed that Rule 5 of Order 8 of the Code of Civil Procedure did not apply to a case where no written statement has been filed. In taking this view the Division Bench followed the authorities, which have also been brought to my notice, viz. Gopinath Y. Syed Pathru, Air 1953 Hyd 166 and Bhageran Rai v. Bhagwan Singh, : AIR1962Pat319 . To these may be added a decision of Untwalla, J. in Siai Sinha v. Shivadhari Sinha, : AIR1972Pat81 , besides Tahsil Co-operative Agricultural Association v. Union of India, : AIR1968MP185 ; Smt. Phuljhari Devi v. Mithai Lal, : AIR1971All494 ; L. Subramania Iyer v. R. H. Hitchcock, Air 1925 Mad 950 and A. K. Moopan v. A. Karupana, Air 1928 Rang 261. A contrary view has been taken in two authorities, reported as Shriram Suraimal V. Shriram Jhunjhunwala, Air 1936 Bom 285 and Timber Pvt. Ltd. v. Chandu Lal, Air 1964 J&K; 58. For the reasons given in , I am, with greatest respect, unable to, agree with the views expressed in Bombay and Jammu and Kashmir cases. 1, thereforee, hold that failure of the defendant to file the written statement does not raise the presumption that the defendant admits all the allegations contained in the plaint and so the allegations of the plaintiff must be deemed to be correct. The court is not entitled to act on the allegations of the plaint and it must act on the proved evidence before it. Under the circumstances the court below has erred in passing the decree without recording evidence.
6. As a result, I allow the revision and set aside the decree of the court below. The case is now remanded to the court below from the stage it existed on 2nd December, 1970. The order of the court refusing the defendant any further opportunity to file the written statement is not disturbed. The plaintiff will, however produce his evidence and prove his claim before the court. The costs of this revision will abide by the result of the suit.
7. The parties are directed to appear before the court below on 6th October 1975.
8. Revision allowed.