S.R. Bannurmath, J.,

JUDGMENT

Though the matter is posted for admission, since the scope of enquiry is very limited, with the consent of both the learned Counsels, the same is taken up for disposal.

2. This is a defendant's appeal challenging the decree dated 14-7-2006 passed in O.S. No. 1421 of 2003 decreeing the suit of the respondent/plain tiff.

3. The respondent/plaintiff has filed a suit for recovery of a sum of Rs. 4,39,583/- along with interest. The Trial Court has decreed the suit only on the ground that the defendant has not filed his written statement in view of Order 8, Rule 5 of the Civil Procedure Code, 1908. It is to be noted that having regard to the provisions of Order 12, Rule 6, Order 5, Rule 8 and Order 8, Rule 10 of the Civil Procedure Code, 1908, the Court cannot act blindly even if written statement is not filed as observed by the Hon'ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v Union of India J. The provisions of Order 8, Rule 5 of the CPC is a directory provision and not mandatory. In a case where written statement is not filed, the Court should be cautious in proceeding under Order 8 of the CPC before passing the judgment against the defendant and it must see that even if the facts set out in the plaint are treated as having been admitted, whether it is possible to pass the judgment in favour of the plaintiff. It is subjective satisfaction of the Court and not blind discretion. The Trial Court in the present case without satisfying itself has simply decreed the suit holding as follows.-

"I have gone through the plaint averments and the documents and the affidavit evidence of the plaintiff. By accepting the plaint averments and the documents, the suit deserves to be decreed against the defendant".

4. In our view, this is not 'subjective satisfaction' which is required to be exercised by the Court below. Hence on this ground; the appeal deserves to be allowed and the matter has to be remanded to the Court below.

5. However, it is to be noted that the defendant has not filed the written statement in time, in the Trial Court and even it has not been produced before this Court in this appeal. As such in the light of the observations made by the Hon'ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu's case, while remanding the matter to the Court below, we hold that it is open to the appellant/defendant to file written statement at the earliest subject to the satisfaction of the Trial Court as to the reasons assigned for the belated approach.

6. Taking note of the fact that the plaintiff has filed suit for recovery and some amount is practically admitted by the defendant, we direct the appellant/defendant to deposit a sum of Rs. 2,00,000/- within four weeks from today in the Court below. The Trial Court is directed to keep the amount in deposit in a nationalised Bank till the disposal of the suit.

7. For the reasons stated above, this appeal is partly allowed and the impugned order is set aside and the matter stands remitted to the Trial Court for fresh disposal. For the convenience of the parties, it is directed that both the parties shall appear before the Court on 12-6-2007 on which day the Trial Court shall fix its own dates for further trial. There shall be no order for costs.

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