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Smt. Sushila JaIn Vs. Rajasthan Financial Corporation, Jaipur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 373 of 1978
Judge
Reported inAIR1979Raj215; 1979()WLN620
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115(1) - Order 8, Rules 5(2) and 10; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantSmt. Sushila Jain
RespondentRajasthan Financial Corporation, Jaipur
Appellant Advocate G.C. Loonia, Adv.
Respondent Advocate S.B.L. Agrawal, Adv.
DispositionPetition dismissed
Cases ReferredIn D. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh
Excerpt:
.....seeking time to file revision--held, court was justified to forfeit defendant's right to file written statement.;the defendant was determined to prolong the proceedings farther. instead of filing the written statement, her counsel requested the court on angus 7, 1978, for further adjournment on the plea that the defendant was desirous of filing a petition of revision in the high court challenging the dismissal of her application for stay of suit, ordered on july 18, 1978. the court refused to grant the adjournment, making the observations that the case had been pending for presenting her written statement for a long time.;the impugned order was made by the learned additions district judge perfectly in accordance with provisions c f order viii of the code of civil procedure. it..........judge, jaipur city, whereby the learned judge forfeited the defendant's right to present a written statement of her defence. 2. the facts material to the decision of this petition may be shortly stated. the rajasthan financial corporation, the respondent herein, brought a suit against sushila jain, the petitioner herein, for recovery of rs. 6,00,089.94 p. on the basis of a contract of guarantee, on oct. 13, 1976. the defendant who is a resident of new delhi could not be served with the summons of the court in spite of repeated efforts made by the process serving agency of the court over a period of nearly 1 year. this led the court to believe that the respondent was keeping out of the way for the purpose of avoiding service. the court had therefore to take resort to substituted.....
Judgment:
ORDER

K.S. Sidhu, J.

1. This petition under Section 115 of the Civil p. C. is directed against the order, dated, Aug. 7, 1978, made by the learned Additional District Judge, Jaipur City, whereby the learned Judge forfeited the defendant's right to present a written statement of her defence.

2. The facts material to the decision of this petition may be shortly stated. The Rajasthan Financial Corporation, the respondent herein, brought a suit against Sushila Jain, the petitioner herein, for recovery of Rs. 6,00,089.94 P. on the basis of a contract of guarantee, on Oct. 13, 1976. The defendant who is a resident of New Delhi could not be served with the summons of the court in spite of repeated efforts made by the process serving agency of the court over a period of nearly 1 year. This led the court to believe that the respondent was keeping out of the way for the purpose of avoiding service. The court had therefore to take resort to substituted service by advertisement in a daily newspaper, fixing Oct. 27, 1977, as the date for the appearance of the defendant. The defendant entered appearance that day, but did not file her written statement of defence on the plea that no copy of the plaint was available to her for making the reply. The court arranged to supply her with a copy of the plaint, permitting her to present the written statement on Jan. 12, 1978. The case had to be adjourned many a time between Jan. 12 to March 10, 1978, but the defendant did not avail of these opportunities to present her written statement of defence. On March 10, 1978, she filed an application under Sections 10 and 151 C. P. C. for stay of the suit. This application was dismissed by the court on July 18, 1978. Taking a somewhat indulgent view in the matter, the court granted further time permitting the defendant to file the written statement on Aug. 7, 1978. It appears that the defendant was determined to prolong the proceedings further. Instead of filing the written statement, her counsel requested the court on Aug. 7, 1978, for further adjournment on the plea that the defendant was desirous of filing a petition of revision in the High Court challengingthe dismissal of her application for stay of the suit, ordered on July 18, 1978. The court refused to grant the adjournment, making the observations that the case had been pending for presenting her written statement for a long time and that the defendant's proposal to file a petition of revision in the High Court could not in any manner be hampered or prejudiced by her filing the written statement. It was in these circumstances that the court made the impugned order forfeiting the defendant's right to present the written statement and directing the plaintiff to produce evidence in support of her claim in the suit.

3. After hearing both sides and reading the relevant provisions of the Civil P. C. I am of opinion that the defendant-petitioner has failed to make out any ground warranting interference in the impugned order by this Court in the exercise of its revisional jurisdiction under Section 115, C. P. C

4. Section 115(1) in so far as it is material for our present purpose reads as under:--

'115. Revision.--(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the, case as it thinks fit.' It cannot possibly be contended in this case that the learned Additional District Judge, in passing the impugned order, has exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him. That being so, this petition cannot be sustained under Clauses (a) and (b) above. The case cannot possibly be covered by Clause (c) either. The words 'illegally' and 'with material irregularity' appearing in Clause (c) have been construed by the Supreme Court quite often. In D. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh, AIR 1971 SC 2324, their Lordships reiterated the legal position in respect of this clause as follows:--

'Clause (c) also does not seem to apply to the case in hand. The words 'illegally' and 'with material irregularity' as usedin this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code, when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question.'

5. It will be presently seen that the impugned order was made by the learned Additional District Judge perfectly in accordance with provisions of Order VIII of the Civil p. C, It cannot, therefore, be legitimately contended that the order was arrived at in breach of some provisions of law or by ignoring rules of procedure affecting its merits.

6. Reference may now be made to the relevant provisions of Order 8 of the Civil P. C. which deal with 'written statement, set off and counter claim'. The relevant rules are sub-rule (1) of Rule 1, sub-rule (2) of Rule 5, and Rule 10. It will be convenient to read them here:--

1. (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. .... ............ ........

5. (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. ... ......... ...........

10. Where any party from whom a written statement is required under Rule 1 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.

It will be seen that a defendant is required under Rule 1 reproduced above to file the written statement of his defence at or before the first hearing or within such time as the court may permit. If he does not file the written statement as required by the said rule, the court is vested with a power under Rule 5 (2) to pronounce judgment on the basis of facts contained in the plaint, except as against the person under disability. It is also open to the court in the exercise of its discretion to require the plaintiff to prove the facts pleaded by him in the plaint, notwithstanding the fact that the defendant has not filed his written statement of defence. Rule 10 makes the position further clear in that it lays down that where any party from whom a written statement is required under Rule 1, fails to present the same within the time permitted or fixed by the court, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.

7. The court would obviously be faced with a ticklish situation in dealing with a defendant who is determined to prolong the proceedings and is adopting dilatory tactics. If such a defendant requests the court for extension of time to file his written statement of defence his request should be dealt with on its merits, with reference to the ground alleged for his inability to file the written statement at or before the first hearing. If the court is satisfied that the ground alleged is prima facie reasonable and bona fide, then, without making much fuss over it, it should extend the time and permit the defendant to file the written statement within the extended time. If, on the other hand, the request is not bona fide and reasonable, the court would be justified, and may indeed be under a duty, to refuse such a request. No hard and fast rule can be laid down for determining whether a particular request is bona fide or not. Such a request has to be dealt with on its merits in the circumstances of each case.

8. Turning now to the facts of this case, it will be recalled that the suit was instituted by the plaintiff for recovery of Rs. 600089.94 p. as far back ason Oct. 13, 1976, The defendant appears to have kept out of way for the purpose of avoiding service of summons on her for nearly one year. The court had, therefore, to take resort to substituted service by advertisement in a daily newspaper. It was in response to that advertisement that the defendant entered appearance in the court for the first time on Oct. 27, 1977. She did not file any written statement till March 10, 1978. Even on March 10, 1978, she did not file the written statement. Instead, she came out with an application under Sections 10 and 151 C. P. C. for stay of the suit. The said application was dismissed by the court on July 18, 1978. The court would have been justified in requiring the defendant to file the written statement on July 18, 1978 itself. Instead, it took an indulgent view and granted further time permitting the defendant to file her written statement on Aug. 7, 1978. What transpired in the court on Aug. 7, is contained in the impugned order made by the learned Additional District Judge. Instead of filing the written statement the defendant's counsel asked for further adjournment on the plea that the defendant was desirous of filing a petition of revision in the High Court against the order dated July 18, 1978, dismissing the defendant's application under Sections 10 and 151 C. P. C. It is obvious that this was a wholly insincere plea which could not possibly carry conviction with any court. If I may say so, this was a supercilious plea which deserved to be and was rightly, rejected by the learned Additional District Judge. The mere fact that the defendant proposed to file a petition of revision in the High Court could not have possibly prevented her from filing the written statement. Her real intention was to somehow stall and thus prolong the proceedings. The trial court was therefore, left with no option but to reject the request for further adjournment. Had it allowed this request, it would have been open to the charge of having permitted the defendant a flagrant abuse of its process,

9. For all these reasons, the trial court was justified in forfeiting the defendant's right to present a written statement of her defence and calling upon the plaintiff to produce evidence in support of its claim. As already indicated, the trial court would have been justified, in the circumstances, to pronounce judgment on the basis of the facts contained in the plaint. It appears to have prefer-red a more careful approach to the problem in requiring the plaintiff to prove the facts pleaded by it in support of its claim. The defendant cannot possibly have any legitimate grievance against the order made by the court below.

10. In conclusion this petition fails and is dismissed with costs. Counsel fees Rs. 200/-.


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