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I. P. MUKERJI, BISWAROOP CHOWDHURY
Marico Ltd. – Appellant
Versus
J. K. Enterprise – Respondent
JUDGMENT :
1. An affidavit of service is on record. The postal endorsement says that none of the respondents/defendants could be located. The papers sent by post were returned to the advocate-on-record for the appellant/plaintiff by the postal authority.
2. None appears for the respondents/defendants. The impugned judgment and order dated 31st January, 2024 dismisses an undefended suit.
3. We regret to note that the learned single judge has proceeded on an erroneous legal premises.
4. It is an admitted position that the respondents/defendants had not filed their written statements and that the suit was declared undefended by the registry of this court.
5. As an undefended suit it was tried before the learned single judge.
6. His lordship has relied upon Order VIII Rule 10 of the Civil Procedure Code which provides that where the defendant does not file a written statement within time, the court could proceed to pronounce judgment against him or make such order in relation to the suit as it thinks fit and proper.
7. His lordship has failed to appreciate Order VIII Rule 5(2) of the Civil Procedure Code which is in the following terms:
The court clarified the discretion available in undefended suits, emphasizing that a plaintiff is not automatically required to adduce evidence if the suit is declared undefended.
A court may decree a suit without a defendant's written statement if no contested issues exist in the plaint, but it must exercise discretion and ensure facts are clear and unimpeachable.
Procedural law is directory in nature, and the court must protect the substantial rights of the defendant.
Proper service of suit summons is essential for a court to deny a defendant the opportunity to defend; without such service, the timeline for filing a defense does not commence.
The curable nature of procedural defects and the directory nature of procedural provisions under the CPC and the Commercial Courts Act, 2015.
Point of law: Suit for specific performance of contract for sale -attention to the pleadings and evidence in a case by the court even where the defendants do not appear and they are ex parte shows a ....
Negligence of counsel does not excuse a party from the consequences of failing to participate in legal proceedings, emphasizing accountability in legal representation.
The striking off of a defendant's defence due to late filing of a written statement, despite court's extension, is unjustifiable, and such extensions are regarded as directory rather than mandatory, ....
The court emphasizes the need to resolve disputes on merits rather than on technicalities and allows the delay in filing the written statement, subject to compensatory costs.
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