Order 8 Rule 5(2) CPC does not bar the court from entertaining an application under Section 151 of CPC for filing of written statement.

JUDGMENT - WAIKAR M.R., J.: - This is a reference made by the learned Single Judge for a reconsideration of the view expressed in (Menomal Khushaldas v. Gangadhar Rai)1, 1982 Mh.L.J. 188 holding that in view of the provisions of Order 8, Rule 5(2) of the Code of Civil Procedure, no application under section 151 of the Code is entertainable.

2. The defendant, in response to suit summons, had appeared and filed an application for extension of time to file written statement, but the same was rejected. The case was then posted for filing of an affidavit by the plaintiffs in support of the plaint allegations. On that day again, the defendant appeared and made an application for time to file written statement, but the same again was rejected. When the defendant then prayed for grant of time to bring stay order from the High Court, that application was allowed on payment of costs of Rs. 100/- and the same was paid the same day. The defendant also filed his written statement with an application that it be taken on record. This application was opposed. The learned trial Court rejected the application and its decision was mainly based on the reported decision of this Court in Menomal's case, 1982 Mh.L.J. 188 against which order the revision came to be filed in this Court.

3. Under similar circumstances and facts when the trial Court had granted permission to the defendant to file written statement and had accepted the same the said order was set aside by this Court (Palshikar, J.) in Menomal's case observing that there being no ex parte order, the provisions of Order 8, Rule 5 were not attracted. What was further observed was that the Court could not even invoke its inherent powers in such a situation. The material observations of the said decision are : -

“A further question arises as to whether the Court has a power to allow the defendant to file a written statement in spite of the fact that the Court has proceeded under Order 8, Rule 5 of the C.P. Code and whether for setting aside such order, the inherent powers of the Court could be invoked. It is well settled principle that the inherent powers of the Court can be invoked to meet the end of justice. It obviously means that there is apparent injustice done to a party, but there is no provision in the Code of Civil Procedure to remedy that injustice. It is only under these circumstances that the inherent powers can be invoked. Certainly such powers cannot be invoked to set at naught the express provisions of the Code. Here is a provision which enables the Court to pronounce a judgment when the defendant has not filed a written statement. The Court proceeds under Order 8, Rule 5 and requires the plaintiff to file affidavits and if the Court were allowed to exercise its inherent powers, it would certainly set at naught the provision of Order 8, Rule 5 of the Code of Civil Procedure because the Court will be free to change its mind and allow the defendant to file a written statement and proceed. If such a course of conduct is permitted by the Code, the provisions of Order 8, Rule 5 will be rendered nugatory.”

4. Thus the learned Judge construed the provisions of Order 8, Rule 5 of the Code of Civil Procedure as an express bar.

5. Having heard Shri Choudhary for the respondents-non-applicants and Shri Mehadia for the applicant, we find that the above observations that in the face of Order 8, Rule 5(2) of the Code, no application under section 151 of the Code is entertainable, are not correct.

6. In the absence of any written statement being filed should the Rule of non-traverse be followed i.e. the allegation of plaint not denied specifically or by necessary implications should be taken to be admitted. On this point, there was a conflict of judicial opinion. According to some High courts, the Rule can apply only when there is a written statement filed, while other High Courts (including our High Court) held that it can be applied even when there is no written statement. By introducing sub-cla

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