Vimalkumar Nathmal Goenka vs Vinod Kumar Nathmal Goenka & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 314

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Sinha D.D., J.
Vimalkumar Nathmal Goenka .... Applicant.
Versus
Vinod Kumar Nathmal Goenka others.... Non-applicants.
Civil Rev. Appln. No. 500 of 1998, decided on 18-6-1998.
Advocates appeared :
A. Shelat, for applicant.

Headnote:Order VIII, Rule 10-Permission for filing written statement - Case concluded and fixed for judgment ex parte-As this stage defendants application for permission to file written statement-Judgment not delivered on that date. Held, trial Court has discretion to allow filing of written statement.-In order to consider the issue in question, it will be meaningful to consider purport of Order VIII, Rule 10 of Code of Civil Procedure. There is no difficulty in coming to the conclusion that Rule 10 gives discretion to the Court and the Court can permit the defendant to file written statement at any stage prior to pronouncement of judgment. Plain reading of Rule 10 makes it clear that the Court can either pronounce judgment against the defendant in the absence of written statement or pass any order as it thinks fit. In view of the above referred legal position vis-a-vis Rule 10 of Order VIII of Code of Civil Procedure the trial Court could have exercised discretion even at the stage when ex parte hearing was concluded and matter was fixed for delivery of judgment on 29.12.1997. However, in the instant case, admittedly the same had not been done by the trial Court and the matter was posted for passing necessary orders on the applications (Exhs. 50 and 51) preferred by the applicant since judgment was not pronounced in the matter by the trial Court on the date on which in was fixed for pronouncement of judgment i.e. 29.12.1997 and the matter was adjourned for passing necessary orders on Exhs. 50 and 51 it cannot be said that the trial Court had exhausted the jurisdiction vested in it as per Order VIII, Rule 10 of Code of Civil Procedure, nor can it be construed that the trial Court had no jurisdiction to accept the written statement. In the present case, the trial did Court not reject Exh. 50 on 29.12.1997 and did not pronounce judgment on 29.12.1997 (dated fixed for delivery of judgment) and adjourned the matter to a future date. The entire exercise undertaken by the trial Court clearly shows that it did not exercise jurisdiction vested in it by the first part of Order VIII, Rule 10 of the Code of Civil Procedure, i.e. pronouncing the judgment on failure to file written statement as required under Order VIII, Rule 10 of the Code of Civil Procedure. The present case would fall within the ambit of latter part of Rule 10 of Order VIII of Code of Civil Procedure, i.e. or make such order in relation to the suit as it thinks fit. Hence, once the easel suit was adjourned to a future date, it is impliedly clear that the trial Court had exercised discretion contemplated in the above-referred latter part of Rule 10 of Order VIII of Code of Civil Procedure. It is, therefore, not possible in the facts and circumstances of the present case to hold that the trial Court was not competent to accept written statement filed by the original defendant No.3.
Order VIII, Rule 10-Failure to file written statement-Suit proceeded with-Plaintiff examined himself-After argument case closed for judgment on 29.12.1997-On that date defendant applied for recalling the plaintiff for cross-examination on 5.3.1998 defendant applied for having the written statement being taken on record-Trial Court rejecting both applications-Rejection set aside-Written statement directed to be taken on record-Application to cross-examine plaintiff allowed - Once the case was adjourned to a future date, it is impliedly clear that trial Court had exercised discretion contemplated in the latter part of Rule 10 of Order VIII, of Civil Procedure Code i.e. "or make such order in relation to the suit as it thinks fit-It cannot, therefore, be construed that trial Court was not competent to accept written statement.

JUDGMENT - SINHA D.D., J.:---Heard Shri Shelat, the learned Counsel for the applicant (original defendant No. 3) at length. This Court on 5-5-1998 issued rule and the same was made returnable on 15-6-1998. The learned Counsel submitted that the non-applicants were served by hamdast. Even otherwise, the note of office of this Court also shows that the non-applicants were served. However, none appears for the non-applicants.

2. The learned Counsel for the applicant submitted that the present applicant is the original defendant No. 3 and non-applicant No. 1 Vinod Kumar is the plaintiff. Applicant Vimal Kumar and non-applicants Nos. 1 Vinod Kumar and 3 Vinalkumar are the real brothers. Non-applicant No. 4 Smt. Gulabdevi is mother of applicant and non-applicants Nos. 1 and 3. It is further submitted that non-applicant No. 1/original plaintiff filed Special Civil Suit No. 284/95 against the present applicant and others for recovery of amount of rupees two lacs and seventy thousand.

3. The non-applicant No. 1/plaintiff is a lessor and co-owner of Ginning and Pressing Factory situated at Adilabad (Andhra Pradesh). He is having ¼th share in the entire Ginning and Pressing Factory and he is the owner and landlord in respect of ¼th share in the suit property. The present non-applicant No. 2 is a partnership firm of which present applicant and non-applicants Nos. 3 and 4 are its partners. The partnership firm is carrying on its business at Adilabad and Akola and offices of the said firm are situated at Adilabad and Akola.

4. The learned Counsel for the applicant submitted that the applicant/original defendant No. 3 did not file written statement on or before 21-11-1997 and, therefore, order of no written statement was passed against the applicant and the suit proceeded without written statement. The plaintiff examined himself and during his examination-in-chief, proved documents on 12-12-1997. The matter was fixed on 18-12-1997 for arguments. The Counsel for the plaintiff advanced his arguments on that day and the matter was fixed for judgment on 29-12-1997. The learned Counsel further submitted that the present applicant submitted application (Exh. 50) on 29-12-1997 for recalling the plaintiff for the purpose of cross-examination by the applicant/defendant No. 3. The present applicant thereafter submitted another application (Exh. 51) on 5-3-1998 for taking written statement on record. The written statement was annexed to the said application. However, Civil Judge, Senior Division, Akola by common order dated 27-3-1998 rejected both the applications (Exhs. 50 and 51). Hence, the applicant has preferred this civil revision application.

5. The learned Counsel for the applicant submitted that the impugned order is not just and proper and same is also not sustainable in law. The learned Counsel contended that the trial Court has not taken into consideration the purport of Order VIII of Code of Civil Procedure, which deals with written statement. It is submitted that Rule 5(2) of Order VIII of Code of Civil Procedure does not contain any specific and positive mandate not to accept written statement under any circumstances. It is also submitted that the trial Court is not precluded from entertaining an application for taking written statement on record nor defendant is debarred from making such an application. It is further submitted that Rule 10 of Order VIII of Code of Civil Procedure gives discretion to the Court to permit the defendant to file written statement at any stage prior to pronouncement of judgment. It is the contention of the learned Counsel that under Rule 10, the Court can either pronounce judgment against the defendant on his failure to file written statement or pass any order as it thinks fit, which gives discretion to the Court to admit the written statement even at the stage when ex parte hearing was concluded and the Court has fixed the matter for delivery of judgment. The learned Counsel contended that the impugned order is,

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1998 Supreme(Bom) 314

IN THE HIGH COURT OF BOMBAY(NAGPUR BENCH)Sinha D.D., J.Vimalkumar Nathmal Goenka .... Applicant.VersusVinod Kumar Nathmal Goenka others.... Non-applicants.Civil Rev. Appln. No. 500 of 1998, decided on 18-6-1998.Advocates appeared :A. Shelat, for applicant.

Cases Referred (1)

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Sinha D.D., J.
Vimalkumar Nathmal Goenka .... Applicant.
Versus
Vinod Kumar Nathmal Goenka others.... Non-applicants.
Civil Rev. Appln. No. 500 of 1998, decided on 18-6-1998.
Advocates appeared :
A. Shelat, for applicant.