The court cannot pronounce judgment against a party under Order 8, Rule 10 of the Code of Civil Procedure without first requiring the party to file a written statement, and the failure of a party to file a written statement does not amount to an admission of the facts alleged in the plaint.

( 1 ) THIS revision petition has been filed, under Section 25 of the Provincial Small Cause Courts Act, by the Union of India, defendant, against the order of Mr. H. K. S. Malik, Additional Judge, Small Cause Court, dated 2nd December, 1970, by which the learned Judge has pronounced the judgment against the defendant petitioner on its failure to file the written statement within the time allowed by the court and the suit has been decreed for a sum of Rs. 325. 00 with costs.

( 2 ) MR. Y. K. Sabharwal, counsel for the petitioner, has in this revision assailed the legality and validity of the order and decree of the court below. The material facts of the case are that the plaintiff respondent instituted a suit for recovery of Rs. 325. 00 on the ground that the consignment had been booked by Railway to Delhi on 4th May, 1968 and there was short delivery resulting in the loss to the respondent for which the respondent held the Union of India, as owning the Railways concerned, to be liable. The suit was filed on 15th May, 1970 and was registered and summons for final disposal were issued to the defendant for 10th August, 1970. On that date the attorney of the defendant appeared and sought time to file the written statement, which was allowed and the case was adjourned to 10th September, 1970. On that date the defendant through its attorney asked for further time to file the written statement which was again allowed and the case was adjourned to 13th October, 1970. On that date again the defendant stated that the written statement was not ready. Then the court granted a last opportunity to file the written statement and adjourned the case to llth November, 1970. On the said date the wriitten statement was again not filed. The court passed the following order:

"written statement not filed. Adjournment prayed. Last opportunity is granted to the defendant for filing the written statement on 2nd December, 1970 subject to payment of Rs. 15. 00 as costs. "then the case came up on 2nd December, 1970. The defendant again did not file any written statement and it sought further adjournment. The court found that there was absolutely no ground for further adjournment and then it proceeded to decide the case under Order 8, Rule 10 of the Code of Civil Procedure and held that the allegations in the plaint made out a case for grant of a decree for Rs. 325. 00 in favour of the plaintiff for short delivery of one bag of Good Katira and the failure of the defendant to file a written statement amounted to an admission of the facts alleged in the plaint. Accordingly the suit was decreed. It is significant that no evidence of any kind, ex parte or otherwise, was recorded by the court.

( 3 ) THE Union of India has filed this revision and the main ground is that the court ought to have allowed the defendant a further opportunity to file the written statement. I find that there is no substance in this grievance. The court has allowed sufficient time and opportunity to file the written statement from 10th August to 2nd December, 1970 and had even in spiite of two opportunities, given a last opportunity on payment of costs. The conduct of the defendant was certainly contumacious and the court was fully justified in refusing any further adjournment to file the written statement. The court was, therefore, entitled to proceed ex parte against the defendant.

( 4 ) THE court below has, however, fallen into an error of law in applying the provisions of Rule 10 of Order 8 of the Code and pronouncing the judgment. Rule 10 reads as follows:

"where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. "the requirement of filing a written statement from any of the parties is contained in R. 9, the material portion of which is to the effect that the court may at any time require a written state