Mufti Baha-Ud-Din Farooqi, Ag. C.J.
1. This revision is directed against an order passed by the Sub Judge, Judge Small Causes Court, Srinagar, on 24-11-1980, striking out the defence. The order followed the defendants' failure to file the written statement despite the fact that they were given several opportunities to do so. The effect of the order clearly is not only to prevent the defendants from filing the written statement but also to disable them from taking part in the proceedings. The question is whether a court is competent to make such order upon the defendant's failure to file the writtenstatement within the time prescribed by it.
2. In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, it has been observed;
'We have already seen that when a summons is issued to the defendant it must state whether the hearing is for the settlement of issues only or for the final disposal of the suit (Order 5, Rule 5). In either event Order 8, Rule 1 comes into play and if the defendant does not present a written statement of his defence, the court can insist that he shall, and if, on being required to do so, he fails, to comply -
'the court may pronounce judgment against him, or make such order in relation to the suit as it think fit' (p. 8, Rule 10). This invests the court with the widest possible discretion and enables it to see that justice is done to 'both sides', and also to witnesses if they are present; a matter on which we shall dwell later.
We have seen that if the defendant does not appear at the first hearing, the court can proceed 'ex parte', which means that it can proceed without a written statement, and Order 9, Rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the court considers a written statement should have been put in, the consequences entailed by Order 8, Rule 10 must be suffered.
What those consequences should be in a given case is for the court, in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases on order awarding costs to the plaintiff would meet the ends of justice; an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.
Now when we speak of the ends of justice, we mean justice not only to the defendant and to the other side, but also to witnesses and others who may be inconvenienced. It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in this class of case and yet he is the one that deserves the greatest consideration. As a rule, he is not particularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to abandon because a court orders him to come to the assistance of one or other of the parties to a dispute. His own business has to suffer. He may have to leave his family affairs for days on end. He is usually out of pocket. Often he is a poor man living in an out of the way village and may have to trudge many weary miles on his feet.
And when he gets there, there are no arrangements for him. He is not given accommodation; and when he reaches the court, in most places there is no room in which he can wait. He has to loiter about in the verandahs or under the trees, shivering in the cold of winter and exposed to the heat of summer, wet and miserable in the rains; and then after wasting hours and sometimes days for his turn, he is brusquely told that he must go back and come again another day. Justice strongly demands that this unfortunate section of the general public compelled to discharge public duties, usually at loss and inconvenience to themselves, should not be ignored in the overall picture of what will best serve the ends of justice and it may well be a sound exercise of discretion in a given case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant to cross-examine them, still less to adduce his own evidence. It all depends on the particular case. But broadly speaking, after all the various factors have been taken into consideration and carefully weighed, the endeavour should be to avoid snap decisions and to afford litigants a real opportunity of fighting out their cases fairly and squarely. Costs will be adequate compensation in many cases and in others the court has almost unlimited discretion about the terms it can impose provided always the discretion is judicially exercised and is not arbitrary.'
3. On the authority of these observations, Rule 10 can be taken to relate to Rule 1 of Order 8 and on the defendant's failure to file written statement of his defence, when so required, the court has the power either to pronounce the judgment against him or make such order in relation to the suit as it thinks fit depending upon whether the suit wasfor the final disposal or for the settlement of the issues only. In the latter case, the court has ample discretion to grant more time for filing the written statement or to proceed to hearing of the suit without such written statement. The discretion cannot, however, be exercised 'arbitrarily. In determining which course to adopt, the court will always be guided by the facts and circumstances of each case. Where the court decides to proceed to hearing of the suit without the written statement, that would not de-bar the defendant from taking part in further proceedings of the case. His participation would, however, be hedged in by several limitations. He will not be able either to cross-examine the plaintiff's witnesses or to produce his own evidence with regard to any questions of fact which he could have pleaded in the written statement. He will, however, be competent to cross-examine the plaintiff's witnesses in order to demolish their version of the plaintiff's case.
To the same effect is the decision of the Patna High Court in Siai Sinha v. Shivadhari Sinha, AIR 1972 Pat 81. In that case the petitioner was added as a defendant in the suit by order of the trial court dated 20-3-1965. He was served with the summons but he neither appeared nor filed his written statement for about three years. He appeared for the first time on 20-8-1968 and moved an application asking for time to file the written statement. The trial court passed an order refusing permission to file the written statement and debarring him from taking part in the proceedings, Aggrieved by this order, he went up in revision to the High Court. The High Court held that the portion of the order of the trial court, by which permission to file written statement was refused, was correct, but not so the other portion. The court observed (at p. 82) :
'The position of law in such a case is that a defendant, even without filing a written statement, can take part in the hearing of the suit. He may cross-examine the plaintiffs witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evilence on questions of fact which have not been pleaded by him by filing any written, statement. It should be furthermade clear that if a defendant files a written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff. (See for reference a Bench decision of the Calcutta High Court in J. B. Ross and Co. v. C. R. Scriven, ILR 43 Cal 1001 : (AIR 1917 Cal 269 (2)).'
4. Applying the principles stated above, to the present case, the trial court was not clearly justified in passing the order that it did. The court has acted with undue haste. The order is not sustainable and must be set aside leaving it open to the trial court to make fresh orders in accordance with law.
5. The result, therefore, is that this revision succeeds and is allowed. The impugned order is set aside and the trial court is directed to make fresh orders in the matter in accordance with law.
6. The parties are directed to appear before the court below on September, 19, 1981.