Bench:
D. P. Mohapatro and S. Saghir Ahmad
Appellant:
Balraj Taneja & Anr.
Respondent:
Sunil Madan & Anr.
Issue
Whether the High Court was justified in passing the decree against the Appellants with regards to the circumstances of the case?
Facts
- Respondent No. 1, Sunil Madan, filed a suit in the Delhi High Court against the Appellants and Respondent No. 2 for specific performance of an agreement for sale in respect of the property.
- The suit was filed in May 1996 and the summons were issued to the Appellant.
- In response thereto, they put in an appearance before the Court on 20th September, 1996 and prayed for eight weeks’ time to file a written statement, which was allowed to them and the suit was adjourned to 22nd of January, 1997.
- The written statement was not filed even on that date and an application was filed for asking more time to file it which was allowed as a last chance and the written statement was directed to be filed by 7th of February, 1997.
- Since the written statement was still not filed, the Court decreed the suit for specific performance in favour of Respondent No. 1 under Order 8 Rule 10 of the Civil Procedure Code.
- An appeal, which was filed by the Appellants, including Respondent No. 2 thereafter, before the Division Bench was dismissed on 29.4.1998. It is in these circumstances that the present appeal has been filed in the Court.
Appellant’s Contention
- The Appellants had contended that the High Court was not justified in passing the decree against the Appellants, including Respondent No. 2, for specific performance merely on the ground that the written statement was not filed by them on the date fixed for that purpose.
- It was also contended that the High Court had rejected the application for time to file written statement on the ground that there was a change of counsel appearing on behalf of the Appellants which indicated that the attitude adopted by the High Court in decreeing the suit under Order 8 Rule 10 Civil Procedure Code was wholly punitive in nature resulting in serious miscarriage of justice.
Respondent’s Contention
- Counsel appearing on behalf of Respondent No. 1 contended that the Appellants, including Respondent No. 2, had adopted dilatory tactics and their intention, from the very beginning, was to delay the disposal of the suit so as to harass Respondent No. 1
- It was also contended that the conduct of the Appellants and Respondent No. 2 was not proper and they were negligent throughout, as they not only did not file the written statement, but also filed an appeal before the Division Bench which also was beyond time.
Relevant Paragraphs (Paragraph Numbers 9, 14, 15 of the Original Judgement)
- According to Order 8 of the Code of Civil Procedure, 1908, if a defendant fails to expressly deny the allegations of the plaintiff, or if he does not present the Written Statement within the stipulated time, the Court may either consider the matter in favour of the plaintiff, or it may pass an order as it may think fit. This provision clearly manifests that on non-filing of written Statement, the Court shall not necessarily favour the plaintiff, rather it must look into the merits of the case.
- The High Court must be cautious while exercising its discretionary power under Order 8 of the Code. In the instant case, since specific performance is the substantial issue involved, it is important to comply with Section 16 of the Specific Performance Act which mandates willingness of the plaintiff to perform his part of the contract.
Judgement
The suit was decreed by the High Court under Order 8 Rule 10 of Civil Procedure Code and under the provisions of Order 8 Rule 9. In both the situations, it was observed that 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. 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. These words are of immense significance; in as much as they give discretion to the Court not to pronounce judgment against the Defendant and instead pass such an order as it may think fit in relation to the suit.
The Supreme Court allowed the appeal and had set aside the decree of the Divisional Bench of the Delhi High Court. The case was remanded back to the Delhi High Court for a fresh decision, and the Appellants were allowed to file the written Statement by 15th October 1999, and non-compliance with the above would validate the High Court's Verdict.
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