Dismissed

U.P. State Industrial Development Corporation Ltd. v. Sneh Lata Gupta

Allahabad HC18 Feb 2019FAPL/141/2019

Case brief

AI extract

What is this about?

Defendant's first appeal against a decree of permanent injunction restraining it from taking forcible possession of an allotted industrial plot on which the plaintiff had built and run a factory. The sole point was whether the trial court erred in deciding the suit without framing issues because no written statement was filed. The appeal was dismissed.

What the court decided

AI extract

U.P. State Industrial Development Corporation Ltd. Vs… — Property and Title | Allahabad HC (2019)

A.F.R.

Court No. - 59

Case :- FIRST APPEAL No. - 141 of 2019 Appellant :- U.P. State Industrial Development Corporation Ltd. Respondent :- Sneh Lata Gupta Counsel for Appellant :- Nripendra Mishra

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Hon'ble Surya Prakash Kesarwani,J.

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Validity of judgment without framing issues with reference to Order VIII Rule 10 and Order XIV Rule 1 C.P.C. and nature and object of procedural law is involved in the present First Appeal. 2. Heard Sri Nripendra Mishra, learned counsel for the defendantappellant.

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This is defendant's appeal which has been filed praying to set aside the judgment and decree dated 24.11.2018 & 5.12.2018 respectively in O.S. No.361 of 2005 (Smt. Sneh Lata Gupta Vs. U.P. State Industrial Development Corporation Ltd.), passed by the Judge Small Causes Court/Additional Civil Judge (S.D.), Ghaziabad.

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Briefly stated facts of the present case are that undisputedly the defendant-appellant issued an allotment letter dated 2.6.1998 allotting industrial plot No. E 29, area 1000 sq. meters in Industrial Area, Udyog Kunj, Ghaziabad, for setting up an Industrial Unit for manufacture of pressure cooker. The physical possession was given by the defendantappellant to the plaintiff-respondent on 990 sq. meter land on 16.9.1998. There was some delay by the plaintiff-respondent in establishing the factory, therefore, the defendant-appellant issued demand notice to plaintiff-respondent asking her to pay the entire premium, lease rent, interest and penalty etc. amounting to Rs.13,34,866.67/- which was paid by the plaintiff-respondent to the defendant-appellant on 27.6.2003 which was accepted by the defendant-appellant and a receipt was also issued. There was a condition in the agreement dated 10.08.1998 that manufacturing shall

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be started by the plaintiff-respondent within two years i.e. upto 9.8.2000 and in the event it is not done then the defendant-appellant shall have a right to take back the vacant possession of the allotted plot. However, as mentioned above; the defendant-appellant themselves permitted the plaintiff-respondent to continue with the occupation of the disputed plot and demanded penalty etc. for such continuation which was paid by the plaintiff-respondent on 27.6.2003. The plaintiff-respondent could not fully set up the factory upto 9.8.2000 on account of several reasons including her illness and heart surgery of her husband. Ultimately, the plaintiff-respondent completed the construction of the factory building over the plot in question and installed machineries and started manufacturing of pressure cooker. She also gave an affidavit before the plaintiff-respondent on 29.1.2005 for starting of the production by 31.3.2005. However, in the mean time, the defendant-appellant issued a notice to the plaintiff-respondent to vacate the disputed plot and handover its possession failing which possession shall be taken forcibly. Aggrieved with the threat given by the defendant-appellant, the plaintiff-respondent filed O.S. No.361 of 2005 for permanent injunction, which has been decreed by the impugned judgment dated 24.11.2018. In this suit the defendantappellant had not filed written statement within the time. The explanation submitted for late filing of the written statement was found to be false and, therefore, Court of Additional Civil Judge (S.D.)/Judge Small Cause Court, Ghaziabad, passed an order dated 6.12.2006 for not taking on record the written statement and rejected the application 42 ' Ga' filed by the defendant-appellant. This order was not challenged by the defendant-appellant.

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Aggrieved with the aforesaid impugned judgment dated 24.11.2018 and the decree dated 5.12.2018, the defendant-appellant has filed the present appeal under Section 96 C.P.C.

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Learned counsel for the defendant-appellant submits as under: (i) The impugned judgment has been passed without framing issues under Order XIV Rule 1 C.P.C. and, therefore, in view of the law laid down by Hon'ble Supreme Court in Gurbux Singh Vs. Harminder Kaur 2010 (14) SCC 301(para 18), the impugned judgment deserves to be set aside.

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(ii) The learned counsel for the defendant-appellant submits that the aforesaid argument is the only argument on behalf of the defendantappellant. He does not argue any other point.

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I have carefully considered the submissions of learned counsel for the defendant-appellant. 8. The submission of the learned counsel for the defendantappellant give rise to the following question for determination in this appeal:-

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“Whether under the facts and circumstances of the case, the impugned judgment and decree passed by the court below without framing issues, suffers from any error of law in view of the provisions of Order VIII Rule 10 and Order XIV Rule 1 C.P.C.”?

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The appeal is admitted on the above framed point and is being finally heard with the consent of learned counsel for the defendantappellant inasmuch as no factual dispute is involved in the present appeal on the aforesaid question.

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I have carefully considered the submissions of learned counsel for the defendant-appellant.

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It is undisputed that the industrial plot in question was allotted by the defendant-appellant to the plaintiff-respondent by the allotment letter dated 2.6.1998 and an agreement dated 10.8.1998 was entered between the parties. Possession of the disputed plot was given by the defendant-appellant to the plaintiff-respondent on 16.9.1998 on an area measuring 990 sq. meter.

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According to the plaintiff-respondent, the land was allotted by the

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defendant-appellant without levelling it and it was full of pits and, therefore, to level it the plaintiff-respondent incurred substantial amount of money. The fact that her husband had suffered from heart disease which delayed the project was not disputed by the defendant-appellant. No action was taken by the defendant-appellant to cancel the allotment immediately on expiry of two years from the date of the agreement. Instead, much after the expiry of the period of two years, the defendant-appellant demanded from the plaintiff-respondent the entire premium, lease rent, interest and penalty etc. amounting to Rs.13,34,866.67 which was paid by the plaintiff-respondent to the defendant-appellant on 27.6.2003 for which a receipt was also issued. The plaintiff-respondent completed the construction of the factory building, installed machineries and started production of pressure cooker although belatedly. She gave an affidavit dated 29.01.2005 before the defendant-appellant mentioning that the production shall start from 31.03.2005. During pendency of the suit two reports of the Amin being paper No.90 ' Ga' 2 & 117 ' Ga' 2 were submitted. The Amin made on spot inspection in presence of the plaintiff-respondent and the Officers of the defendant-appellant and found that over the disputed plot a factory has been constructed in which machines are installed and manufacturing activities are going on. He also found stock of raw material and manufactured goods kept in the factory premises. 13. The plaintiff-respondent filed several documentary evidences to establish the plaint version. She also led oral evidence of P.W. 1 – Rakesh Kumar Gupta and P.W.2 - Harish Chandra Pandey. The Amin's report being paper No.90 ' Ga' 2 dated 21.5.2012 & paper No. 117 ' Ga' 2 dated 17.07.2018 was confirmed after considering the objection of the defendant-appellant being paper No.118 'Ga' -2. The defendantappellant also cross examined the plaintiff's witnesses. The defendantappellant have not led any evidence. Considering the documentary

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evidences, namely, allotment letter, agreement, possession letter (paper No.60 ' Ga' /1-63 ' Ga' ), oral evidence of P.W. 1 and P.W. 2, sanction letter of G.D.A. for construction of factory building dated 8.9.1999 (paper No.64 ' Ga' ) letter of the plaintiff-respondent dated 24.10.2002 addressed to the Regional Manager U.P.S.I.D.C., Ghaziabad, (paper No.65 ' Ga' ) intimating the completion of construction of factory building, letter of the demand notice for use and occupation charges upto 31.3.2004, dated 20.12.2002 and 12.6.2003, issued by the defendant-appellant (paper No.66 ' Ga' & 67 ' Ga' ) and paper No.68 ' Ga' & 69 ' Ga' being letters of the plaintiff-respondent dated 30.12.2002 & 27.06.2003 paying the amount demanded, paper No.70 G & 81 ' Ga' being proof of payment of dues to the defendantappellant, certificate of manufacturing issued by the competent authority (paper No.82 ' Ga' ) and electricity bills (paper No.83 ' Ga' , 84 ' Ga' , 85 ' Ga' /1-2); the court below found that the plaintiff-respondent has established a factory over the disputed plot and is manufacturing pressure cooker in the said factory. On these facts the court below decreed the suit observing that the defendant-appellant has no right to take possession of the disputed property without following due procedure of law. The court below further observed that the defendantappellant may obtain possession of the disputed property after following due process of law. The findings recorded by the court below are based on documentary and oral evidences. The most of the documentary evidences are the papers of the defendant-appellant which could not be denied or disputed even before this Court. Thus, on facts the impugned judgment does not suffer from any manifest error of law.

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So far as the only point argued before this Court by learned counsel for the defendant-appellant with regard to the sustainability of the impugned judgment on account of non framing of the issue is

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concerned, suffice it to observe that non framing of issues by the court below is in terms of the provisions of Order VIII Rule 10 read with Order XIV Rule 1 C.P.C. For ready reference the provisions of Order VIII Rule 10 and provisions of Order XIV Rule 1 C.P.C. are reproduced below:

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“Order VIII Rule 10

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Procedure when party fails to present written statement called for by Court — Where any party from whom a written statement is required under rule 1 or 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.

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Provided further that no court shall make an order to extend the time provided under Rule 1 of this order for filing of the written statement.

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Order XIV Rule 1

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1. Framing of issues— (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

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(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

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(3) Each material proposition affirmed by one party denied by the other shall form the subject of distinct issue.

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(4) Issues are of two kinds :

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(a) issues of fact,

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(b) issues of law.

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(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements , if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

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(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.”

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It is undisputed that the written statement was not filed by the

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defendant-appellant within the time allowed. The explanation offered by the defendant-appellant for not filing the written statement within time, was found to be false. Findings in this regard were recorded by the court below in its order dated 11.1.2007 which was not even challenged by the defendant-appellant. The defendant-appellant participated in the suit proceedings. They cross examined the plaintiffwitnesses. Thus, there was no written statement before the Court below to ascertain upon what material proposition of fact or of law the parties are at variance for framing issues.

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Provisions of Order XIV Rule 1 C.P.C. have been considered by Hon'ble Supreme Court in various judgments. In Fiza Developers & Inter-Trade(P) Ltd. Vs. Amci(I)(P) Ltd. 2009(17) SCC 796 (para 7), Hon'ble Supreme Court considered the object of framing of issues and held as under:

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“7. The object of issues is to focus upon the questions on which evidence has to be led and to indicate the party on whom the burden of proof lies. Rules 1 of Order 14 of the Code dealing with framing of issues is extracted below:

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“1. Framing of issues –

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(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

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(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

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(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

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(4) Issues are of two kinds - (a) issues of fact, and (b) issues of law.

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(5) At the first hearing of the suit, the Court shall, after reading the plaint and the written

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statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and

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record the issues on which the right decision of the case appears to depend.

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(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first

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hearing of the suit makes no defence.” In Makhan Lal Bangal v. Manas Bhunia [2001 (2) SCC 652] , this Court held that the issues are important as they determine the scope of a trial by laying down the path for the trial to proceed, free from diversions and departures. This Court observed:

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“The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issuewise would be able to tell precisely how the dispute was decided.”

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There is no doubt that framing of issues is necessary in every contested regular civil suit. Equally clear is the position that in proceedings which are intended to be summary in nature, issues are not framed. Proceedings for setting aside ex parte decrees, proceedings for restitution, proceedings for execution and proceedings for permission to sue as an indigent person, are illustrative of summary proceedings which are governed by the Code, where issues are not framed. In a summary proceeding, the respondent is given an opportunity to file his objections or written statement. Thereafter, the court will permit the parties to file affidavits in proof of their respective stands, and if necessary permit cross examination by the other side, before hearing arguments. Framing of issues in such proceedings is not necessary. We hasten to add that when it is said issues are not necessary, it does not mean that evidence is not necessary.”

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(Emphasis supplied by me)

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In Ramrameshwari Devi Vs. Nirmala Devi, 2011(8) SCC 249 (paras 43, 46, 47, 52 to 56), Hon'ble Supreme Court considered the importance of framing of issues and imposition of costs in Civil Litigation and held as under:

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“43. Framing of issues is a very important stage in the civil litigation and it is the bounden duty of the court that due care, caution, diligence and attention must be bestowed by the learned Presiding Judge while framing of issues.

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46. Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.

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47. If an exparte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.

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52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials. A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.

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B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.

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C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary

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adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

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D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.

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E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.

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F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.

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G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.

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H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.

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I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits,

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after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

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J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.

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53. According to us, these aforementioned steps may help the courts to drastically improve the existing system of administration of civil litigation in our Courts. No doubt, it would take some time for the courts, litigants and the advocates to follow the aforesaid steps, but once it is observed across the country, then prevailing system of adjudication of civil courts is bound to improve.

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54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to

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actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

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55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.

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56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.”

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Thus, there can not be any dispute that framing of issues is very important in Civil Litigation and it should be framed by the Presiding Judge with due care, caution, diligence and attention. Framing of issues is necessary for determination of the point based on the pleas as held in Gurbux Singh (supra) relied by learned counsel for the defendant-appellant. The object of framing issues is to focus upon questions on which evidence has to be led and to indicate the party on whom burden of proof lies.

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In the aforenoted judgments mainly the provisions of Order XIV Rule 1 C.P.C. have been considered. Sub-Rule 5 of Rule 1 of Order XIV C.P.C. clearly stipulates that at the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions

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of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

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The provisions of Order VIII Rule 10 C.P.C. were considered by Hon'ble Supreme Court in C.N. Ramappa Gowda Vs. C.C. Chandregowda (Dead) by LRS. and another 2012(5) SCC 265 (paras 25, 26 & 27) and it was held as under:

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“25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgement, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgement and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint.

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26. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the Court can conveniently pass a judgement and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex-parte judgement without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the exparte judgement although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial.

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27. However, if the Court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the

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passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit.”

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(Emphasis Supplied by me)

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In Balraj Taneja and another Vs. Sunil Madan and another, 1999 (8) SCC 396, (Paras 13,14,15, 25, 26, 27, 29, 42, 43, 44) Hon'ble Supreme Court considered the provisions of Order VIII Rule 5 and Rule 10 C.P.C. and Section 58 of the Evidence Act and meaning of the word 'judgment' as defined in Section 2(9) C.P.C. and held as under:

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“13. 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 has been decreed by the High Court. These Rules are quoted below:

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" 9. Subsequent pleadings - No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but 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.

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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 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."

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14 This Rule, namely Rule 10, was also amended by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976). Prior to its amendment, it was held in a number of decisions that the rule can be invoked only in those situations where the Court has required the defendant to file the written statement in terms of Rule 9 of Order 8. A few other High Courts had taken the view that this Rule would be applicable even to those cases where a written statement was required to be filed under Order 8 Rule 1 CPC. The conflict of decisions has been set at rest by providing specifically under this rule that where a party from whom a written statement is required either under Rule 1 or Rule 9 of Order 8

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fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. Rule 10 thus governs both the situations where a written statement is required under Rule 1 of Order 8 as also where it has been demanded under Rule 9. In both the situations, if the written statement has not been filed by the defendant, it will be open to the court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. It is to be noticed that if the written statement is not filed, the court is required to pronounce judgment against the defendant. The words "against him" are to be found in Rule 10 of Order 9 which obviously means that the judgment will be pronounced 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.

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15. 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.

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25. 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 :

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"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, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:

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Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by

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such admissions."

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26. The proviso to this Section specifically gives a discretion to the court to require the facts admitted to be proved otherwise than by such admission. The proviso corresponds to the proviso to Rule 5(1) Order 8 CPC.

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27. In view of the above, it is clear that the court, at no stage, can act blindly or mechanically. While enabling the court to pronounce judgment in a situation where no written statement is filed by the defendant, the court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit.

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29. 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 should the court 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 the 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 fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub- rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.

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42. " Judgment " as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order.

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What a judgment should contain is indicated in Order 20, Rule 4 (2) which says that a judgment : "shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision".

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It should be a self-contained document from which it should appear 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.

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43. In an old case, namely, Nanhe vs. Saiyad Tasadduq Husain (1912) 15 Oudh Cases 78, it was held that passing of a mere decree was a 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.

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44. In Thippaiah and others vs. Kuri Obaiah, ILR 1980 (2) Karnataka 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 Code of Civil Procedure. In Dineshwar Prasad Bakshi vs. Parmeshwar Prasad Sinha, AIR 1989 Patna 139, 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.”

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(Emphasis Supplied by me)

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The ratio of decision in the case of Balraj Taneja (supra) has been followed by Hon'ble Supreme Court in its judgment in Standard Chartered Bank Vs. Andhra Bank Financial Service Ltd. 2016(1) SCC 207 (para 31), Gujarat Maritime Board Vs. P.C. Pandya, 2015 (12) SCC 403 (para 13), Shantilal Gulab Chand Mutha Vs. Tata Engineering & Locomotive Co. Ltd. & another, 2013 (4) SCC 396 and C.N. Ramappa Gowda Vs. C.C. Chandregowda (dead) by Lrs. (supra) .

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From perusal of the law laid down by Hon'ble Supreme Court in the case of C.N. Ramappa Gowda (supra) as aforequoted, it is clear that in the event of non-filing of the written statement, the proceeding to

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try the suit is clearly to expedite the disposal of the suit and it is not penal in nature. In a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order VIII Rule 10 CPC. In such situation before passing a judgement, the Court must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgement and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the Court can conveniently pass a judgement and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex-parte judgement without directing the plaintiff to prove the facts so as to settle the factual controversy. 24. The factual aspects and evidences as already discussed above, leaves no manner of doubt that the judgment in the suit in question was passed by the court below, after the plaintiff-respondent has established by documentary evidences that she constructed the factory, installed machineries therein and started manufacture of pressure cooker and that the entire amount of premium, lease rent, interest and penalty etc. as demanded by the defendant-appellant were paid by the plaintiff-respondent. The defendant-appellant also cross examined the witnesses of the plaintiff-respondent. It could not be demonstrated even before this Court by the defendant-appellants that the impugned judgment has caused any prejudice to them. The Court below has granted liberty to the defendant-appellant to take action for possession only in accordance with law. The impugned judgment satisfies the requirement of a 'judgment' as defined in Section 2(9) of

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Civil Procedure Code. Therefore, pronouncement of the impugned judgment without framing of the issues, does not suffer from any manifest error of law which has not even caused any prejudice to the defendant-appellant. Therefore, the question framed above is answered against the defendant-appellant and in favour of the plaintiffrespondent. The appeal lacks merit and, therefore, deserves to be dismissed.

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For all the reasons aforesaid, I do not find any merit in this appeal. Consequently, the appeal is dismissed . Order Date :- 18.2.2019/vkg

U.P. State Industrial Development Corporation Ltd. v. Sneh Lata Gupta

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U.P. State Industrial Development Corporation Ltd. v. Sneh Lata Gupta

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