Appeal against an order directing the plaintiff to file a witness list and permitting cross-examination despite the defendant's failure to file a written statement. The Divisional Bench held damages must be proved by evidence, Order VIII Rule 10 is not mandatory to pronounce judgment on plaint alone, and dismissed the appeal on delay and merits.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.05.2025
versus
THE CHAIRMAN, NDMC .....Respondent Through: Mr.Harsh Peechava, SC, Mrs.Ankita Savangi, ASC, Mr.Akshat, Mr.Akshilesh Loya, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (ORAL)
CM APPL. 32200/2025 (Exemption)
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that once the opportunity to file the written statement was closed for the respondent, a decree in terms of Order VIII Rule 10 of the Code of Civil Procedure, 1908, should be passed in favour of the appellant.
“26 . We have no hesitation to hold that Rule 10 is permissive in nature, enabling the trial court to exercise, in a given case, either of the two alternatives open to it. Notwithstanding the alternative of proceeding to pronounce a judgment, the court still has an option not to pronounce judgment and to make such order in relation to the suit it considers fit. The verb “shall” in Rule 10 (although substituted for the verb “may” by the Amendment Act, 1976) does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a
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written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which “shall” equally applies would be rendered otiose.
27. At this stage, we consider it apposite to take a quick look at Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] to examine the scope of Order 8 Rule 10. Therein, this Court ruled that a court is not supposed to pass a mechanical judgment invoking Order 8 Rule 10CPC merely on the basis of the plaint, upon the failure of a defendant to file a written statement. The relevant paragraphs of the judgment are reproduced below for convenience :
“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 10CPC. 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
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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 Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 Order 8.”
No doubt this decision was rendered considering that the verb used in the provision is “may”, but nothing substantial turns on it.
28. What emerges from a reading of Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] , with which we wholeheartedly concur, is that only on being satisfied that there is no fact which needs to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] also lays down the law that provision of Order 8 Rule 10CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.
29. If indeed, in a given case, the defendant defaults in filing written statement and the first alternative were the only course to be adopted, it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the court. Generally, in order to be entitled to a judgment in his favour, what is required of a plaintiff is to prove his pleaded case by adducing evidence. Rule 10, in fact, has to be read together with Order 8 Rule 5 and the position seems to be clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by
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such admission. Similar is the position with Section 58 of the Evidence Act, 1872. It must be remembered that a plaint in a suit is not akin to a writ petition where not only the facts are to be pleaded but also the evidence in support of the pleaded facts is to be annexed, whereafter, upon exchange of affidavits, such petition can be decided on affidavit evidence. Since facts are required to be pleaded in a plaint and not the evidence, which can be adduced in course of examination of witnesses, mere failure or neglect of a defendant to file a written statement controverting the pleaded facts in the plaint, in all cases, may not entitle him to a judgment in his favour unless by adducing evidence he proves his case/claim.”
NAVIN CHAWLA, J
RENU BHATNAGAR, J
MAY 23, 2025/Arya/DG
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2 issues framed by the court
Whether a decree should be passed under Order VIII Rule 10 CPC in favour of the plaintiff when the defendant failed to file a written statement after the opportunity closed.
Whether the Single Judge rightly directed the plaintiff to file evidence and allowed cross-examination on legal issues despite no written statement.
Colour shows how this judgement treated each authority
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(2024) 4 SCC 696 · Who else cites this
2 provisions across 1 enactments
Sher Singh
The Chairman, NDMC
Navin Chawla
Renu Bhatnagar
As recorded by the court registry
An appeal to a Division Bench against an order made by a single judge on the original side of the High Court.
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