The Court has the authority to decree a suit straightaway on the basis of the averments in the plaint, in the absence of a written statement filed by the defendant, but must scrutinize the plaint to ensure there is no contested factual issue before doing so.

ORDER :

1. Can, in a case in which the defendant fails to file written statement in response to the suit within the time stipulated in that regard and remains absent, the suit proceeding, ipso facto, to straightaway decree the suit, without any further process, including the calling for an affidavit-in-evidence from the plaintiff?

2. I had some misgivings on the point. Several orders have been passed by the learned Single Judges of this Court, decreeing the suit in such circumstances. Most of these orders invoke the jurisdiction of the Court under Order VIII Rule 10, [10. Procedure when party fails to present written statement called for by Court. – Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.] of the Code of Civil Procedure, 1908 (CPC).

3. What troubled me was whether, where there was no written statement filed, the Court could straightaway decree the suit on the basis of the assertions in the plaint without seeking any affidavit-in-evidence from the plaintiff.

4. The question, however, appears to be answered by the judgment of the Supreme Court in Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396. The Supreme Court, in that case, took stock of Order VIII Rule 5, [5. Specific denial. –

(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.] and Order VIII Rule 10 of the CPC. The Supreme Court proceeded to hold thus, in paras 9, 10, 11, 12, 14, 15, 27 and 29 of the report :

“9. The scheme of this Rule is largely dependent upon the filing or non-filing of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that any fact stated in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be treated as admitted. Under Rule 3 of Order 8, it is provided that the denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and, therefore, the denial, if it is not definite, positive and unambiguous, the allegations of facts made in the plaint shall be treated as admitted under this Rule.

10. The proviso appended to this Rule is important in the sense that though a fact stated in the plaint may be treated as admitted, the Court may, in its discretion, still require such "admitted fact" to be proved otherwise than by such admission. This is an exception to the general rule of evidence that a fact which is admitted need not be proved.

11. Sub-rule (2) provides that if the defendant has not filed his written statement, it would be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint. The rule further proceeds to say that notwithstanding