TMI Blog1999 (9) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... by 7th of February, 1997. The suit was fixed for 10th of February, 1997. 3. Since the Written Statement was still not filed, the Court decreed the suit for specific performance in favour of respondent No. 1 under Order 8 Rule 10 C.P.C. Respondent No. 1 was directed to deposit a sum of ₹ 3 lakhs, being the balance amount of sale consideration, within six weeks and on the amount being so deposited, he was given the liberty to apply to the court for appointment of a Commissioner for executing the sale deed in his favour. The review application filed by the appellants including respondent No. 2 was dismissed by the High Court on 13th of May, 1997. An appeal, which was filed by the appellants, including respondent No. 2, thereafter, before the Division Bench (R.F.A.(OS) No. 36/97) was dismissed on 29.4.1998. It is in these circumstances that the present appeal has been filed in this Court. 4. Mr. Rakesh Dwivedi, Sr. Advocate, appearing on behalf of the appellants has contended that having regard to the circumstances of the case, the High Court was not justified in passing the decree against the appellants, including respondent No. 2, for specific performance merely on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the provisions contained in various Rules of Order 8 to find out whether the jurisdiction was properly exercised by the High Court in decreeing the suit under Order 8 Rule 10 C.P.C. 7. Order 8 Rule 1 provides that the defendant shall file a Written Statement of his defence. It is further provided by Rule 3 of Order 8 that it shall not be sufficient for a defendant in his Written Statement to deny generally the grounds alleged by the plaintiff, but defendant must deal specifically with each allegation of fact of which he does not admit the truth. The further requirement as set out in Rule 4 is that if the allegation made in the plaint is denied by the defendant, the denial must not be evasive. It is, inter alia, provided in Rule 5 of Order 8 that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the written statement, shall be taken to be admitted. 8. This Rule provides as under: Order 8 Rule 5 - Specific denial (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consonance with the Proviso which also requires the fact, even though treated as admitted, to be proved. Thus, the Proviso and Sub-rule (2) read together indicate that where: (i) an allegation of fact made in the plaint is not denied specifically, or (ii) by necessary implication, or (iii) stated to be not admitted in the pleading of the defendant, or (iv) the defendant has not filed the Written Statement. 12. Such allegations of facts shall be treated as admitted. The Court in this situation can either proceed to pronounce judgment on such admitted facts or may require the plaintiff, in spite of such admission, to prove such facts. 13. Sub-rule (2) quoted above is thus an enabling provision which enables the Court to pronounce judgment on the basis of the facts contained in the plaint, if the defendant has not filed a Written Statement. What is important to note is that even though a Written Statement is not filed by the defendant, the court may still require a fact pleaded in the plaint to be proved. 14. We may now consider the provisions of Order 8 Rule 9 as also the provisions contained in the other Rule, namely Rule 10, under which the instant suit h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unced against the defendant. This rule also gives a discretion either to pronounce judgment against the defendant or make such order in relation to the suit as it thinks fit. These words are of immense significance, inasmuch as they give a discretion to the Court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit. 16. There are thus two separate and distinct provisions under which the Court can pronounce judgment on the failure of the defendant to file Written Statement. The failure may be either under Order 8 Rule 5(2) under which the Court may either pronounce judgment on the basis of the facts set out in the plaint or require the plaintiff to prove any such fact; or the failure may be under Order 8 Rule 10 CPC under which the Court is required to pronounce judgment against the defendant or to pass such order in relation to the suit as it thinks fit. 17. This Court, in Sangram Singh v. Election Tribunal, Kotah and Anr. [1955]1SCR1 , observed on page 432 of the report as under: (32) We have already seen that when a summons is issued to the defendant it must state whether the hearing is for the settleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 debar 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, AIR1972Pat81 . 19. In Dharam Pal Gupta v. District Judge, Etah (1982) ARC 562, the Allahabad High Court held as under: Therefore, reading Order VIII, Rule 10, C.P.C. along with Order VIII, Rule 5, C.P.C., it seems that even though the filing of Written Statement has been made obligatory and the Court has now been empowered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, the Court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This Rule empowers the Court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit. 25. In Razia Begum v. Sahebzadi Anwar Begum and Ors. [1959]1SCR1111 , it was held that Order 12 Rule 6 has to be read along with Proviso to Rule 5 of Order 8. That is to say, notwithstanding the admission made by the defendant in his pleading, the Court may still require the plaintiff to prove the facts pleaded by him in the plaint. 26. Thus, in spite of admission of a fact having been made by a party to the suit, the Court may still require the plaintiff to prove the fact which has been admitted by the defendant. This is also in consonance with the provisions of Section 58 of the Evidence Act which provides as under: 58. Facts admitted need not be proved--No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted facts, the Court could not be said to have exceeded its judicial powers. 30. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his Written Statement nor the Court should proceed to pass judgment blindly merely because a Written Statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a Written Statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther recites that till February 19, 1996, respondent No. 1 was not informed by any of the defendants about permission, if any, taken from the Income Tax Department in spite of several requests made by him from time to time. It was also pleaded as follows: Even the permission under the Income Tax Act to enable the agreement to sell and execution of the sale deed in favour of the Plaintiff was to be obtained not only by Defendant No. 1 but also by Defendant Nos. 2 and 3 as mentioned in Clause 12 of the agreement to sell. 34. In respect of the permission of the Income Tax Department, referred to above, para 12 of the plaint mentioned as follows: That vide letter/reply dated 1st of March 1996, the Defendant No. 1 had replied to the notice of the Plaintiff dated 13th February 1996, wherein a vague and evasive denial was made by the Defendant No. 1 to the contents of the notice dated 13th February 1996 of the Plaintiff. The Plaintiff was informed for the first time about the income tax certificate alongwith the said reply by Defendant No. 1 which was obtained by the Defendant No. 1. However, no certificate was obtained by the Defendant Nos. 2 and 3 as was requisite under the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Department and send the same to the plaintiff whereupon the plaintiff would pay a sum of ₹ 2.25 lakhs to the defendants and the balance amount of ₹ 75,000 would be paid at the time of the registration of the sale deed. Since, on the own showing of the plaintiff, as set out in the plaint, the defendants had been asserting that they had obtained the permission and sent the same to the plaintiff, which was not accepted by the plaintiff, there arose between the parties a disputed question of fact which had to be investigated and decided particularly as it was likely to reflect upon the conduct of the plaintiff whether he was willing to perform his part of the contract or not. It had, therefore, to be proved as a fact that permission of the Income Tax Department had not been obtained by the defendants nor had that Certificate (permission) been sent to the plaintiff. If the said Certificate had been obtained and sent to the plaintiff, the latter, namely, the plaintiff should have immediately paid the stipulated amount of ₹ 2.25 lakhs to the defendants and required them to execute the sale deed in his favour. The plaintiff, according to facts set out in the plaint, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he process of reasoning by which the Court felt that the case of the plaintiff was true and stood proved. 39. As will be evident from the facts set out above, the plaint itself showed a serious disputed question of fact involved between the parties with regard to the obtaining of Certificate (permission) from the Income Tax Department and its communication by the defendants to the plaintiff (Respondent No. 1). Since this question of fact was reflective of the attitude of the plaintiff, whether he was ready and willing to perform his part of the contract, it had to be prayed as a fact that the Certificate (permission) from the Income Tax Department had not been obtained by the defendants and, therefore, there was no occasion of sending it to him. If the pleadings of respondent No. 1 were limited in character that he had pleaded only this much that the defendants had not obtained the Certificate (permission) from the Income Tax Department and had not sent it to him, this fact would have stood admitted on account of non-filing of the Written Statement by the defendants. But Respondent No. 1, as plaintiff, himself pleaded that defendants insisted that they had obtained the Certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. 44. In an old case, namely, Nanhe v. Saiyad Tasadduq Husain (1912) 15 OudCas 78, it was held that passing of a mere decree was material irregularity within the meaning of Section 115 of the Code and that even if the judgment was passed on the basis of the admission made by the defendant, other requirements which go to constitute judgment should be complied with. 45. In Thippaiah and Ors. v. Kuri Obaiah ILR (1980) Kar 1028, it was laid down that the Court must state the grounds for its conclusion in the judgment and the judgment should be in conformity with the provisions of Section 2(9) of the CPC. In Dineshwar Prasad Bakshi v. Parmeshwar Prasad Sinha AIR1989Pat139 , it was held that the judgment pronounced under Order 8 Rule 10 must satisfy the requirements of judgment as defined in Section 2(9) of the Code. 46. Learned Counsel for respondent No. 1 contended that the provisions of Order 20, Rule 1(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale-deed has already been executed in his favour by the Commissioner appointed by the High Court. It is true that the jurisdiction under Article 136 of the Constitution is a discretionary jurisdiction and notwithstanding that a judgment may not be wholly correct or in accordance with law, this Court is not bound to interfere in exercise of its discretionary jurisdiction. But in the instant case, as we have already seen above, it is not merely a matter of the defendants' conduct in not filing the Written Statement but the question of law as to what the Court should do in a case where Written Statement is not filed, is involved, and this question has to be decided so as to provide for all the lower courts as to how the court should proceed in a situation of this nature. 49. We, therefore, allow the appeal, set aside the judgment dated 10.2.1997 passed by the Single Judge as also the judgment dated 29.4.1998 passed by the Division Bench of the Delhi High Court and remand the case back to the Delhi High Court for a fresh decision. We allow the appellants and Respondent No. 2 to file their Written Statement by 15th of October, 1999, with a clear stipulation that if the Written ..... X X X X Extracts X X X X X X X X Extracts X X X X
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