Second Appeal No.366 of 2001,Civil Application No.1901 of 2005,Civil Application No.455 of 2001

22nd July, 2009

Petitioner Counsel: Mr. G. S. GODBOLE,Ms. GAURI GODSE
Respondent Counsel: Mr. ANILKUMAR PATIL

JUDGMENT

JUDGMENT :- Heard the learned Counsel for the parties.

2. The following substantial question of law is involved in the present Appeal.

"Whether the trial Court was wrong in rejecting the application Exhibit 17 made by the defendants/appellants to set aside the ex-parte order and to permit to file written statement after the order was passed on the previous day to proceed with the suit ex-parte and without written statement ?"

3. Admittedly, respondent Nos.1 to 5 filed Regular Civil Suit No.685 of 1997 in the Court of Civil Judge, Junior Division, Vashi, Navi Mumbai against the present appellants and the respondent No.6 seeking declaration that they had the co-parcenary right in the suit property and also they had right to claim the plot under 12.5% Scheme for the Project Affected Persons. Government of Maharashtra had acquired huge tract of agricultural land for CIDCO for development of a new township. After development of the land, the Government came out with a Scheme whereby the persons, from whom the land was acquired, would be given the developed plots of land having the area equal to 12.5% of the land acquired from them. The present appellants, who were the defendants in the suit, were served with the suit summons on 28.8.1997 and the matter was fixed for appearance on 29.8.1997. However, they could not appear either on 29.8.1997 or on 5.9.1997. The trial Court passed an order on 5.9.1997 to proceed ex-parte without written statement. On 17.10.1997, the appellants/defendants filed an application Exhibit 17 to set aside the order dated 5.9.1997 and for seeking leave to file written statement. It was supported by affidavits to the effect that both the defendants, namely, Narayan Padu Patil and Baliram Laxman Patil were not keeping good health and, therefore, they could not appear and file the written statement. Plaintiffs' Advocate gave no objection subject to heavy cost. The trial Court rejected that application by order dated 17.11.1997 holding that he had no power under the Civil Procedure Code to grant permission to file written statement after having passed an order to proceed without the written statement. However, the trial Court did not proceed to pass the judgment under Order 8, Rule 5(2) or Rule 10 of C.P.C., but proceeded to hear the evidence led by the plaintiffs. On 7.2.1998, the suit came to be dismissed. The plaintiffs/respondent Nos.1 to 5 preferred Civil Appeal No.29 of 1998. That appeal came to be allowed by the impugned judgment dated 10.1.2001. Hence, the Second Appeal filed by the defendants.

4. Mr. Godbole, learned Counsel for the appellants contended that the defendants did not get proper opportunity to file written statement to defend themselves. He conceded that before the appellate Court, the Advocate appearing for the present appellants had wrongly made a statement before the Court that it was not necessary for him to file written statement. Mr. Godbole contends that it was necessary for the appellants to file written statement to defend the suit properly. He contends that the trial Court was wrong in holding that he had no power to allow filing of written statement after having passed the order to proceed without written statement.

5. Order 8, Rule 5(2) and Rule 10 read as follows :-

"5(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."

"5(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."

6. Order 9, Rule 6(1)(a) provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then, if the summons was duly served, the Court may make an order that the suit be heard ex-parte. Order 8, Rule 1 provides that the defendant shall,within thirty days from the date of service of summons on him, present a written statement of his defence. Under the proviso to Rule 1, for sufficient reasons to be recorded, time for filing the written statement may be extended upto 90 days from the date of service of summons. If the defendant on the date fixed for filing the written statement as per the summons does not appear and file the written statement or the pleadings, it has two consequences (1) under Order 9, Rule 6(1)(a), the Court may direct that suit be heard ex-parte against such defendant. (2) under Order 8, Rule 5(2) it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, but the Court may in its discretion require any such fact to be proved. Under Order 8, Rule 10,where the defendant fails to file the written statement as required under Order 8, Rule 1 within the time permitted by the Court or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to suit as it thinks fit. If Rule 5(2) and Rule 10 are read together, it will be clear that if the written statement is not filed, the Court is competent to pronounce judgment on the basis of the contents of the plaint and the Court shall pass the judgment. However, the discretion is also given to the Court to pass such other order as it thinks fit. It means the Court may refuse to pass the judgment and may call upon the plaintiff to prove his case.

7. Order 9, Rule 7 may be usefully quoted :-

"7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance - Where the Court has adjourned the hearing of the suit ex-parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."

It means if the Court is satisfied about the reasons given by the defendant for non-appearance at the earlier date, the Court may set aside the order to proceed ex-parte. The learned trial Court observed that having passed the order to proceed ex-parte without any written statement, he had no power to modify that order. It appears that the learned Judge of the trial Court did not notice the provisions of Order 9, Rule 7, which specifically gives that power.

8. The learned trial Court noted that the defendant to move an application only under Order 8, Rule 9. In fact, that is not correct position of law. Order 8, Rule 9 provides that subsequent to the written statement of a defendant, other than by way of defence to set-off or counter-claim, no pleading shall be presented except by the leave of the Court but the Court may at any time require written statement or additional written statement from any of the parties. This rule had no application to the present case, as no written statement was filed and question of filing subsequent W.S. Would not arise.

9. In fact, in the present case,, the suit summons was served on the defendant on 28.8.1997 for appearance on 29.8.1997. On that day, the defendants did not appear and the matter was adjourned to 5.9.1997. On that day also they did not appear and the order was passed to proceed ex-parte without written statement. The record reveals that an application was filed by the defendants on 17.10.1997 to set aside the ex-parte order and to permit them to file written statement. Till that time, the trial Court had not proceeded with the hearing of the matter. Therefore, the trial Court could pass the order setting aside ex-parte order under Order 9, Rule 7, C.P.C. and could permit the defendants to file written statement.

10. Mr. Godbole pointed out that the application Ex.17 seeking permission to file written statement was supported by the medical certificates as well as the affidavits of both the defendants to show that they were not keeping well during the relevant period. The application seeking leave to file written statement was made within a period of one month and 12 days after the order was passed to proceed without written statement. In view of the circumstances and the legal position, it must be held that the trial Court committed error in rejecting the application Exhibit 17 filed by the defendants on 17.10.1997 and as a result the defendants were deprived of an opportunity to file written statement to contest the suit.

11. It is already noted that before the appellate Court the Advocate appeared for the present appellants had stated that written statement was not necessary. Mr. Godbole rightly contends that due to mistake committed by the lawyer, the party cannot be allowed to suffer particularly when there is heavy stake in the property situated in Navi Mumbai.

12. Had the Advocate not made the statement, possibly the first appellate Court would have passed appropriate orders to remand the matter and to permit the defendants to file written statement. Due to the statement made by the Advocate for the defendants, the first appellate Court proceeded with the hearing of the appeal and passed the impugned order and as a result the Second Appeal was required to be filed by the defendants. The plaintiffs have been dragged in the litigation before the High Court unnecessarily. In view of these circumstances, the learned Counsel for the appellants fairly conceded that costs of Rs.5,000/- may be imposed. In the given facts and circumstances, it is necessary that the impugned judgment and decree passed by the first appellate Court be set aside and the matter be remanded back to the trial Court with liberty to the defendants to file written statement.

13. In the result, the Appeal is allowed subject to the costs of Rs.5,000/- to be paid within four weeks before the trial Court. The judgments of both the Courts below are hereby set aside and the Regular Civil Suit No.685 of 1997 is hereby remanded back to the trial Court with a direction to allow the defendants to file written statement and then to proceed to hear the matter as per law.

14. C.A. No.1901 of 2005 for quashing of the order dated 17.10.1997 is allowed. C.A. No.455 of 2001 for stay does not survive as the Appeal itself is disposed of. Accordingly, both the Civil Applications stand disposed of.

Appeal allowed.