Partly allowed

Chauthi Ram v. Ram Chandra and Others

Allahabad HC27 May 2019SAPL/51/2005

Case brief

AI extract

What is this about?

Second appeal by a defendant against an ex parte decree of specific performance. The court held that an ex parte defendant's absence does not relieve the trial court of its duty to require the plaintiff to prove facts in issue; a reasonless ex parte decree, passed without framing issues or points for determination, cannot stand. Both courts' judgments were set aside and the suit restored for trial

What did the court decide?

Impugned decree and judgments of both courts below set aside; suit restored to the Trial Court for trial de novo; defendant permitted to file written statement within a month; costs of Rs. 20,000/- aw

Chauthi Ram Vs Ram Chandra and Others — Specific Performance | Allahabad HC (2019)

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Second Appeal No. 51 of 2005 Chauthi Ram vs. Ram Chandra and others

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Reserved A.F.R.

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Court No. - 47

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Case :- SECOND APPEAL No. - 51 of 2005

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Appellant :- Chauthi Ram Respondent :- Ram Chandra And Others Counsel for Appellant :- K.S. Tiwari Counsel for Respondent :- Arun Kumar,Arun Kumar Tewari,B.R.J. Pandey,M.K. Mathur,Smt. Rachana Tewari,Smt. Rachna Dubey

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Hon'ble J.J. Munir,J.

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1. This is defendant's second appeal arising from a suit for specific performance of contract decreed ex parte. Original Suit No. 101 of 1992 was instituted on 02.07.1992 before the Court of the Civil Judge, Mirzapur (now redesignated as Civil Judge, Senior Division) by the respondents, claiming relief of specific performance of contract. They sought specific performance of a registered agreement to sell dated 14.06.1990 said to be executed by the defendant-appellant in their favour, covenanting to sell immovable property as detailed at the foot of the plaint, for a valuable sale consideration of Rs. 65,000/-. The aforesaid registered agreement to sell is hereinafter referred to as 'the suit agreement'. The property that is subject matter of the suit under reference, is hereinafter be referred to as 'the suit property'. The appellant is hereinafter referred to as 'the defendant', whereas the respondents are referred to as 'the plaintiffs'.

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2. It was the plaintiffs' case that at the time of execution and registration of the suit agreement, a sum of Rs. 30,000/- was paid in cash, leaving a balance sale consideration of Rs. 35,000/-. The plaintiff claimed to have requested the defendant a number of times over to execute the sale deed as covenanted, but the defendant was elusive. The plaintiff claimed to have called upon the defendant through notices to come forward on 03.01.1992, 24.03.1992 and 07.04.1992 to execute a sale deed in terms of the suit agreement but the defendant did nothing more than to re-assure the plaintiffs. The plaintiffs have averred in the plaint that they are ready with the balance sale consideration of Rs. 35,000/- to pay it over to the defendant and secure execution of the sale

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deed from the date of the suit agreement; the plaintiffs' claimed to have always been ready and still ready to perform their part of the suit agreement. Alleging breach of the suit agreement by the defendant, the suit giving rise to present appeal was brought as above detailed.

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3. It appears that the plaintiffs put in appearance and sought time to file a written statement but in the absence of a written statement being filed, the suit was directed to proceed ex parte vide order dated 24.01.1995, passed by the learned Additional Civil Judge (Senior Division), Mirzapur. The suit was decreed ex parte by the learned Trial Judge vide judgment and decree dated 27.02.1996 ordering the plaintiff to execute a registered sale deed in favour of the defendant's within two months of the decree, in the terms covenanted in the suit agreement, conveying to the defendants, the suit property.

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4. The defendant brought an application dated 13.09.1996 under order IX Rule 13 Code of Civil Procedure seeking to set aside the ex parte decree dated 27.02.1996, passed by the learned Trial Judge. The application was supported by an affidavit. Objections were filed to the said application on behalf of the plaintiffs. The Trial Judge by his order dated 20.02.1998, rejected the defendant's application to set aside the ex parte decree.

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5. Aggrieved by the rejection of this application to set aside, as aforesaid, the defendant preferred an appeal under Order XLI Rule 1 (r) to the District Judge, Mirzapur that was numbered on his file as Misc. Civil Appeal No. 31 of 1998. The appeal aforesaid, which came up for determination before the learned Additional District Judge, Court No. 3, Mirzapur was dismissed vide judgment and order dated 24.04.2002, affirming the Trial Court. The defendant assailed the orders of the two Courts, refusing to set aside the ex parte decree before this Court by means of Writ Petition No. 29092 of 2002. This Court while declining to interfere with the said orders, vide an order dated 06.05.2003, held as follows:-

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“The suit filed against the petitioner has been decreed exparte by the Additional Civil Judge, Senior Division, Mirzapur. Even

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assuming for the sake of arguments that the suit has been decided exparte, yet the order by which the suit has been decided is appealable.

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However, in case the regular appeal is filed within a month, the same shall be treated to have been filed within time and will not be dismissed on the ground of limitation.

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The writ petition is disposed of accordingly.

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Certified copy of the order may be given to the learned counsel for the petitioner during the course of the day on payment of usual charges.”

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6. The defendant, accordingly, filed a first appeal from the ex parte decree dated 27.02.1996 passed by the Trial Judge, on 31.05.2003 to the Court of the learned District Judge. The aforesaid appeal was admitted, and, in due course of hearing, came up for determination before the learned District Judge, Mirzapur on 20.10.2004, who proceeded to dismiss the appeal and affirm the decree passed by the Trial Judge.

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7. It is in the face of these proceedings and events that the defendant has come up in appeal from the appellate decree asking this Court to reverse both the Courts below and dismiss the plaintiffs' suit with costs throughout. Though this appeal was admitted to hearing vide an order dated 08.03.2007, but it appears that no substantial question of law was framed at that time. It was subsequently framed on 19.05.2009, and, therefore, this appeal may, in substance, be considered to have been admitted to hearing on the latter date. The following substantial question of law was framed on 19.05.2009:-

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“Whether, when the defendant-appellant had made an application 14 Ga accepting that the agreement of sale has been executed and prayed that he be granted time to refund the entire amount the courts below could to proceed to decide the suit exparte without disposing of the said application and ought to have granted adjournment under Order 17 CPC and also required the plaintiff-respondent to prove the averments made in the plaint as provided under Order 8 Rule 5(2) of Code of Civil Procedure in case of failure on the part of the defendant.”

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8. This appeal was heard on the aforesaid substantial question of law in a single hearing and judgment was reserved on 06.03.2019.

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9. Heard Sri K.S. Tiwari, learned counsel for the appellant, Sri Yadvendra

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Yadav, holding brief of Sri B.R.J. Pandey, learned counsel appearing for the respondents.

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10. The manner in which the Trial Court has disposed of the suit is all that this appeal is about. It is that disposition which has given rise to the substantial question of law involved; particularly, its second limb. The Trial Court after briefly setting out facts leading to institution of the suit has proceeded to dispose of the suit ex parte by a short judgment, that is recorded as follows: (Translated into English from Hindi vernacular):-

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“The defendant has been served with summons. The defendant requested for time to file his written statement. Despite adequate opportunity, he did not file a written statement. Vide order dated 24.01.1995 the suit was directed to proceed ex parte.

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The plaintiff in his ex parte evidence has filed paper No. 9 Ka, the original registered agreement to sell and filed an affidavit of Ram Chandra, the plaintiff, bearing paper No. 34 Ka, affidavits of witnesses of the agreement, Sahdev and Ram Kishor bearing paper Nos. 35 Ka and 37 Ka. Apart from these, vide list bearing paper No. 8 Ga, carbon copies of notices served upon the defendant, bearing paper Nos. 12 Ga/1, 12 Ga/2 and 12 Ga/3, registered postal receipts and acknowledgments, bearing paper Nos. 10 Ga and 11 Ga respectively, have also been filed.

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On a perusal of the documentary evidence and affidavits available on record, the pleas taken in the plaint are proved ex parte and the plaintiffs' suit on the aforesaid basis is liable to be decreed ex parte with costs”

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11. The lower Appellate Court, in disposing of the appeal, has not adhered to the requirement of framing points for determination as mandated by order XLI Rule 31 C.P.C. (hereinafter referred to as 'the Code'); but that does not matter much for the learned Judge hearing the appeal in the Court below has written a judgment quite elaborate for an appellate judgment, where the original judgment hardly says anything. The lower Appellate Court in the first part of its findings has dealt with the appellant's grievance, regarding denial of opportunity to contest on merits. She has elaborately compiled a dossier of the dates fixed and adjournments granted when the defendant sought time to file a written statement that was granted, but the defendant did not file his pleadings. The lower Appellate Court has held therefore, that adequate opportunity was

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afforded to the defendant to file a written statement, which he did not file and his grievance on this score, does not hold substance. The second point that has been dealt with by the Lower Appellate Court is about the defendant's contention that the Trial Judge disposed of the suit by a judgment, without framing any issues. On the said count too, the learned Judge in appeal found against the defendant by recording a finding in the following words: (Translated into English from Hindi vernacular):-

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“Learned counsel for the appellant has urged that the learned Judge while writing his judgment has not framed any issues. It may be emphasised that in the present case the suit was filed on the basis of the agreement dated 14.06.1990 in order to enforce execution of a sale deed, and by the application bearing paper No. 14 Ga, the defendant has admitted facts set out in the plaint and sought time in order to refund the money (referring to the earnest money) paid by the plaintiff, but he did not file any written statement. As such, there was no justification to frame any issues. Counsel for the appellant relied on the decision of the Supreme Court reported in 1993 ACJ 557, Rameshwar Dayal vs. Banda. The aforesaid decision relates to a small cause suit. The present suit has been decided ex parte. As such, it cannot be accepted that it is necessary to frame issues.”

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12. The third count on which the learned Judge in the Lower Appellate Court has upheld the Trial Court, is based on an argument advanced by learned counsel for the defendant, before the Lower Appellate Court, to the effect that evidence being accepted on affidavit, the judgment is contrary to law. The argument before the Lower Appellate Court has proceeded on the basis of that Section 3 of the Indian Evidence Act, that defines evidence, does not regard an affidavit as evidence. Before the Lower Appellate Court, learned counsel for the defendant in support of the aforesaid contention, placed reliance upon a decision of the Supreme Court in Smt. Sudha Devi vs. M.P. Narain and another¹ .

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13. The Lower Appellate Court has proceeded to reject the aforesaid contention, on reasoning that going by the law laid down in the aforesaid guidance of their Lordships of the Supreme Court, evidence on affidavit can be

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1 . AIR 1988 SC 1381

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given alone when the Court has made an order under Order XIX Rule 1 and 2 C.P.C., permitting such affidavit to be given in evidence. The learned Judge has recorded a finding that a perusal of the record shows, that the plaintiffs' application bearing Paper No. 33 Ga was allowed, and he was permitted to file his evidence on affidavit. It has further been held that it was in this context that affidavits bearing Paper Nos. 34 Ka , 35 Ka and 37 Ka were read as evidence in the suit. The Appellate Court also took into account an Allahabad High Court Amendment dated 10.02.1981, that authorizes the Court to permit affidavit evidence to be tendered in a suit proceeding ex parte . The Lower Appellate Court has held that ex parte evidence on affidavit has been given after the plaintiffs' application 33 Ga was allowed by the Trial Court, and, therefore, there is no reason to hold that evidence given on affidavits is in any way unlawful or that no judgment upon it could be validly pronounced. The Lower Appellate Court, therefore, rejected this limb of the defendant's challenge to the Trial Court's decree.

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14. In conclusion the Appellate Court has recorded a finding upholding the Trial Court in the following words: (Translated into English from Hindi vernacular):-

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“On the basis of the above discussion, the submission of the appellant's counsel that he was not given opportunity, does not deserve to be accepted as the above analysis makes it explicit that the defendant himself did not make efforts for the disposal of application Paper No. 14 Ga, and the said application said nothing more than to admit the agreement to sell dated 14.06.1990, with a promise to refund the sum of Rs. 30,000/received thereunder, asking four months time for the same; whereas the defendant neither refunded the said money or did he file his written statement. Since the judgment is ex parte, it is still necessary to frame issues, is a submission for the acceptance of which no good cause has been shown. It is, particularly, so as the execution of the agreement is admitted to the defendant and the same has been acknowledged by his application Paper No. 14 Ga; and acceptance of affidavit in evidence under Order 19 Rule 1 A of the Allahabad High Court Amendment can be allowed by the Court. Therefore, there is no reason to hold that affidavits filed for evidence are in any way contrary to law. As such, this appeal is without substance. It is liable to be dismissed.”

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The substantial question of law on which this appeal has been admitted would not be much concerned with the findings of the Lower Appellate Court about the denial of opportunity to file a written statement, as well as the adequacy of opportunity given to the defendant. It would also not be concerned at all with the finding relating to the legality of evidence, given on affidavits on behalf of the plaintiff. It is the finding about the approval of the Appellate Court to proceed to a decision of the suit without framing issues or even points for determination, upon which answer to that question depends; implicit in this finding is the question whether an ex parte judgment can palpably be the product of a mechanical exercise with no application of mind by the Court to those facts which the plaintiff is required by law to prove before he can succeed, the defendant staying ex parte . This Court is of clear opinion that a suit may be dismissed in default if the plaintiff does not appear; but it cannot be decreed in default, if the defendant does not appear. The plaintiff in a suit against an ex parte defendant, whatever be the mode of proof, is required to prove his case about all those facts in issue and relevant facts that would entitle him to a decree. It may be that in the absence of the defendant, the onus probandi under Section 101 of the Indian Evidence Act would never shift back as no evidence in rebuttal would be led, but the plaintiff would certainly have to discharge his evidential burden on all facts in issue, that the substantive law requires him to establish his right to relief, as well as relevant facts. Again, with no evidence led on the other side, the burden of proof on the facts in issue and relevant facts may easily make to the required standard of proof under Section 102 of the Evidence Act, but all this would not absolve the plaintiff of his duty to establish by evidence enough that may entitle him to the proof of his case and ask for the decree that he seeks.

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Once that is the law that requires the plaintiff to prove his case, it is equally true that in a suit set down ex parte, the Court must commensurate with the degree, assess facts and the evidence led by the plaintiff to record conclusions about facts in issue and relevant facts that under the substantive law may entitle the plaintiff to a decree. If the Court were not required to write a

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judgment with analysis of evidence in a suit set down ex parte with reasons good enough to support the conclusions reached, it would be a virtual non judgment. It would be, in effect, a decree in default. There may be cases where the plaintiff in a suit set down ex parte may not be able to discharge his evidential burden on the facts in issue and relevant facts, and there the plaintiff must fail on the well settled principles of law that are variously expressed in different facets of the law. Reasons, as it is said almost proverbially in law, are the soul and heart of a judgment. Reasons are integral to a judgment and there can be no judgment that is reasonless. In an ex parte judgment, even if issues are not framed, the facts in issue and relevant facts that entitle the plaintiff to relief must figure as points of determination, in relation to which the Court must discuss evidence with its reasons for the conclusion reached. These reasons, logically may be relatively brief vis-a-vis a judgment on contest. Certainly, a judgment cannot proceed to decree without reasons.

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In the present case the suit is one for specific performance of contract. It is well settled that even for a gross breach of contract, specific performance cannot be decreed as a matter of course. No doubt, in case of immovable property, standards in favour of granting specific performance have had a lower threshold than other kinds of contracts, but the plaintiff is required to prove certain essential facts in issue and relevant facts, before he can be granted a decree of specific performance. He has to aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract, continuously from the time that performance fell due and until decree in the suit is passed; that is the requirement of Section 16(c) of the Specific Relief Act. That besides, Section 16 speaks of personal bar to relief. In a case where the defendant is ex parte , the Court has to satisfy itself that there are no other personal bars to relief. There is then the very relevant fact about the discretion to grant specific performance under the provisions of Section 20 Specific Relief Act, 1963 (as it stood before the Amendment of 2018) that governs the rights of parties here. The discretion to grant specific performance too, would have to be more carefully dealt with by the Court on the basis of

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evidence on record where the defendant is ex parte . All this would require the Court to write a judgment showing application of mind to the facts, the evidence on record, the law applicable and the way the Court has reasoned to reach its conclusions. It cannot be the result of a mechanical exercise, a decree by default or an ipse dixit of the Judge.

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This issue has engaged the attention of the Supreme Court in Maya Devi vs. Lalta Prasad² , where in paragraph 40 and 41 of the report their Lordships held:-

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40.Finally another aspect which has come to the fore, is the approach of the trial court in the adjudication of the suit. The plaint contains an averment that the suit property had already been sold. The defendant Shri Prem Chand Verma (his wife Smt Nirmal Verma was not impleaded), had appeared in the trial court and filed his written statement in which, whilst admitting the documentation executed between the parties, he had denied that he had been served with any legal notice and set up the defence that he was entitled to forfeit the amount received by him because the plaintiff decree-holder had failed to pay the balance sale consideration as envisaged in the deed of agreement for earnest money. After filing his written statement he stopped appearing, and the suit proceeded ex parte. Significantly, the deed of agreement for earnest money as well as the written statement predicate defendant's title on a will, and in this context there is no evidence on record that it had taken effect because of the death of the testator. In the event, as is to be expected, no appeal against the judgment and decree came to be filed, and, therefore, the decision was not tested before or scrutinised by the appellate court.

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The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha v.Telco Ltd. [(2013) 4 SCC 396 : (2013) 2 SCC (Civ) 632] , will be sufficient. The failure to file a written statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted.”

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2 (2015) 5 SCC 588

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A very pertinent principle in regard to disposition of a suit has been laid down by their Lordships of the Supreme Court in Ramesh Chand Ardawatiya vs. Anil Panjwani³ , where in paragraph 33 of the report, it has been held:-

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So far as the plea of bar as to maintainability of suit for failure to seek further relief is concerned, we cannot find fault with the plaint as framed. The defendant was alleged to be a rank trespasser who was in the process of committing a trespass and was allegedly raising unauthorized construction over the property neither owned nor legally possessed by him. The relief of specific performance is not a further relief to which the plaintiff is entitled or which he could have sought for against this defendant. Thus, from the point of view of the present defendant, we cannot find any such defect or infirmity in the relief sought for by the plaintiff as would render the suit not maintainable and liable to be thrown out at the threshold. But there is substance in the other limb of this submission made by the learned Senior Counsel for the defendant-appellant. Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order 8 Rule 10 CPC is attracted and the court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the “points for determination” and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.

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(Emphasis by Court)

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Their Lordships of the Supreme Court in Ardawatiya (supra) had made a very seminal distinction between suits that are decided ex parte and those that are decided in accordance with the provisions of Order VIII Rule 10 of the Code or Order VIII Rule 5(2) of the Code. That is an issue of subtle distinction about which this Court would opine in greater detail, during course of this

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3 (2003) 7 SCC 350

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judgment. But this Court thinks that the present suit has not been decided under Order VIII Rule 10 of the Code or under Order VIII Rule 5(2) but has proceeded ex parte under Order IX Rule 6 of the Code. This is so because the judgment of the Trial Court unequivocally proclaims so, where it says that on 24.01.1995 the suit was ordered to proceed ex parte against the defendants. The suit being one that has proceeded ex parte , the judgment of the Trial Court is clearly one that should have conformed to the standards laid down in their Lordships' decision in Ardawatiya (Supra) and also what has been said earlier in this judgment. More would be said about the Trial Court's determination and its approval in appeal, again, later in this judgment.

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The question that further arises in this matter is whether the Trial Court could enter a judgment of a kind and in the terms it is written by resort to the provisions of Order VIII Rule 5(2) of the Code or under the provisions of Order VIII Rule 10. Learned Counsel for the plaintiffs Sri Yadvendra Yadav has strenuously argued that taking the provisions of Order VIII Rule 5(2) of the Code or Order VIII Rule 10 into account, it is a case where the judgment passed by the Trial Court can very well be regarded as one passed under Order VIII Rule 10 or under Order VIII Rule 5(2). He submits that the direction of the Trial Court, ordering the suit to proceed ex parte, is not decisive of the character of its judgment once it has clearly figured on record that the defendant did not file a written statement despite repeated opportunity being given. Learned counsel for the plaintiffs has submitted that the consistent default in filing a written statement by the defendant finds elaborate and copious account in the judgment of the lower Appellate Court, and going by that account, there is good reason to believe that the Trial Court exercised its powers under the Order VIII Rule 10 to decree the suit where no reasons were required to be given. The fact that the Trial Court permitted the plaintiff to lead evidence in support of their case by affidavits, lend support to the conclusion that the Trial Court indeed fell back upon the provisions of Order VIII Rule 10 of the Code and Order VIII Rule 5(2). Learned counsel submits that it is for the said reason that the impugned judgment recorded by the Trial Court does not carry any reasoning. It just

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accepts the plaint case. That is what the manner of disposition under Order VIII Rule 10 is all about, and the Trial Court has precisely done that.

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It would be in aid of better appreciation of this issue if the provisions of Order VIII Rule 5(2) of the Code and Order VIII Rule 10 are quoted, which read as under:-

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ORDER VIII : [WRITTEN STATEMENT, SET-OFF AND COUNTERCLAIM]

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5. Specific denial

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[(1)] …........

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[(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.

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Procedure when party fails to present written statement called for by Court

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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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The contention that the short shift manner in which the Trial Court has decreed the suit apparent from the judgment, should be held valid by assuming that the Court has proceeded under the provisions of Order VIII Rule 10 of the Code or with the aid of that part of sub Rule (2) of Rule 5 of Order VIII of the Code that make it permissible for the Court to pronounce judgment on the basis of facts contained in the plaint, where the defendant has not filed a pleading, is difficult to accept. The Court under Order VIII Rule 5(2) of the Code is authorized to pronounce judgment for the plaintiff under circumstances where there is no pleading filed by the defendant but carries a clause to it, which says in unequivocal terms that the Court may its discretion, require any such fact in the plaint to be proved.

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Likewise, under Rule 10 of Order VIII of the Code the Court has been mandated to pass judgment against the defendant, who fails to file a written statement within time permitted or fixed by the Court, as the case may be, but

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gives a clear option to the Court to make such order in relation to the suit as it thinks fit. This plea predicates a common scheme under both the Rules of Order VIII that merely for the defendant's default, anything and everything said in the plaint is not to be accepted by the Court; it always depends on the nature of the claim and the assertions in the plaint, which course the Court may take. Generally speaking, not everything said in the plaint is to be accepted as proof for itself, merely because a pleading by the defendant has not been put in. The purpose of these rules is to accelerate disposal of suits and not to punish defendants who do not or cannot make to file their written statement. In the context of a suit for specific performance that inherently requires proof of facts by firm and detailed evidence - facts in issue like readiness and willingness - option to pronounce judgment under Order VIII Rule 10 of the Code, may be the last choice, if at all.

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In such suits assuming that the Court has proceeded under Order VIII Rule 10 of the Code or invoked the provisions of Order VIII Rule 5(2), the options in those Rules requiring facts to be proved by the plaintiff, rather than a blindfolded acceptance of the plaintiffs' case appears to be the pre-eminent option. In this regard, the guidance of their Lordships of the Supreme Court in Balraj Taneja and another vs. Sunil Madan and another⁴ , is illuminative. In that case, the appeal by special leave arose out of a suit for specific performance of an agreement to sell immovable property, instituted before the Original side of the Delhi High Court. The defendant was in default of filing his written statement and the High Court proceeded to decree the suit for specific performance under Order VIII Rule 10 of the Code. A review application before the learned Single Judge failed and so did the appeal to the Division Bench. Their Lordships after an elaborate examination of the provisions of Order VIII of the Code and review of a wealth of authority, including two decisions of this Court in Dharampal Gupta Vs. District Judge, Etah⁵ and State of U.P. vs.

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4 (1999) 8 SCC 396

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5 (1982) 1 ARC 562

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Dharam Singh Mahra⁶ , held in paragraphs 24 to 30 of the report thus:-

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“24. In Razia Begum v. Sahebzadi Anwar Begum [AIR 1958 SC 886 : 1959 SCR 1111] it was held that Order 12 Rule 6 has to be read along with the 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.

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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 such admissions.”

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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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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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Having regard to the provisions of Order 12 Rule 6, Order 5 Rule 8, specially the proviso thereto, as also Section 58 of the Evidence Act, this Court in Razia Begum case [AIR 1958 SC 886 : 1959 SCR 1111] observed as under:

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“In this connection, our attention was called to the provisions of Rule 6 of Order 12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff. These provisions have got to be read along with Rule 5 of Order 8 of the Code with particular reference to the proviso which is in these

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6 AIR 1983 All 130

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terms:

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‘Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission.’

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The proviso quoted above, is identical with the proviso to Section 58 of the Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted.”

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The Court further observed:

¶110

“Hence, if the court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the court, in pursuance of the terms of Section 42 of the Specific Relief Act, decides, in a given case, to insist upon clear proof of even admitted facts, the court could not be said to have exceeded its judicial powers.”

¶111

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 subrule (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.

¶112

Applying these tests to the instant case, it will be noticed that in a suit for specific performance it is mandatorily required by Section 16 of the Specific Relief Act to plead readiness and

¶113

¶114

Second Appeal No. 51 of 2005 Chauthi Ram vs. Ram Chandra and others

¶115

willingness of the plaintiff to perform his part of the contract. The court, before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether all the requirements, specially those indicated in Section 16 of the Specific Relief Act, have been complied with or not. Readiness and willingness of the plaintiff to perform his part of the contract is a condition precedent to the passing of a decree for specific performance in favour of the plaintiff.”

¶116

The aforesaid decision of the Supreme Court was followed in C.N. Ramappa Gowda vs. C.C. Chandregowda (DEAD) by LRS.⁷ , where in paragraphs 24,25,26,27 and 29 of the report it held:-

¶117

Reliance placed on the affidavit in a blindfold manner by the trial court merely on the ground that the defendant had failed to file the written statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which would be nothing short of a decree which is penal in nature.

¶118

We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect [Ed.: It would seem that it is the purpose of the procedure contemplated under Order 8 Rule 10 CPC upon non-filing of the written statement to expedite the trial and not penalise the defendant.] 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 judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint.

¶119

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 judgment 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 judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment 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

¶120

7(2012) 5 SCC 265

¶121

¶122

Second Appeal No. 51 of 2005 Chauthi Ram vs. Ram Chandra and others

¶123

disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial.

¶124

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 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.

¶125

It is a well-acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the past even if there was no written statement to the contrary or any evidence of rebuttal. The trial court in our view clearly adopted an erroneous approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiff's case could be held to have been proved. The trial court, therefore, while accepting the plea of the appellant-plaintiff ought to have recorded reasons even if it were based on ex parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour.”

¶126

The present suit being a suit for specific performance where inherently disputed facts such as readiness and willingness are required to be proved by the plaintiff and then the exercise of discretion under Section 20 of the Specific Relief Act, this Court is of opinion that on the facts stated in the plaint, the Court could not have proceeded under Order VIII Rule 10 of the Code or under Order VIII Rule 5(2) without requiring the plaintiff to prove facts regarding his readiness and willingness, and then on the available material, clearly exercising discretion on accepted parameters under Section 20 of the Code to grant or refuse specific performance; a fortiori, a judgment in a suit involving such facts cannot be sans reasons.

¶127

It is perhaps for this reason that the Court from the apparent tenor of the judgment, has not proceeded under Order VIII Rule 10 or under Order VIII Rule 5(2) of the Code. Rather, the Court has proceeded to pass an ex parte judgment for the plaintiff. But in doing that, the Trial Court has grossly erred in not recording reasons for the decision, and that too, after framing points for determination, if not issues, the defendant being ex parte . The question of law

¶128

¶129

Second Appeal No. 51 of 2005 Chauthi Ram vs. Ram Chandra and others

¶130

would, therefore, stand answered in the manner that in a suit where no pleading is filed by the defendant, depending on the nature of the suit and the facts, the Court ought require the plaintiff to prove those facts in issue under Order VIII Rule 5(2) of the Code that are not proof of themselves and may lead to more than one possibilities.

¶131

In view of what has been said above, the judgments of the two Courts below cannot be sustained and the matter has to go back to the Trial Court for a trial de novo . Of course, the defendant would have liberty now to file a written statement within a month of the parties appearing before the Trial Court on the date fixed by this judgment. The Trial Court, of course, would be under a direction to proceed with and decide the suit within a year of the parties appearing before it. The plaintiff having been put to much inconvenience, owing to the defendant's default before the Trial Court in putting in his pleadings, the plaintiff would be entitled to his costs from the defendant in this appeal contrary to the event here, which this Court quantifies at a sum of Rs.20,000/-.

¶132

In the result, the appeal succeeds and is allowed in part.

¶133

The impugned decree and the judgments passed by both Courts below are hereby set aside with an order that the suit shall stand restored to the file of the Trial Court for a trial de novo . Both the plaintiffs and the defendant shall appear before the Trial Court on or before 8^th July, 2019. The defendant shall be at liberty to file his written statement within a month of the aforesaid date. The Trial Court shall proceed to expedite disposal of the suit and shall conclude the trial without granting any unnecessary adjournments within the course of one year from the date fixed for the appearance of parties. The defendant shall pay to the plaintiffs in costs, a sum of Rs. 20,000/- which shall be added to plaintiff's costs in the decree drawn up by the Trial Court, irrespective of the event in the suit or further appeal. In case, however, costs are paid during the course of the suit, the same shall not be so taxed. It is, accordingly, ordered.

¶134

Order Date:- 27.05.2019/BKM/-

Chauthi Ram v. Ram Chandra and Others

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Chauthi Ram v. Ram Chandra and Others

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