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High Court Of Rajasthan
Judgename : S.K.MAL LODHA
KRISHNA DEVI - Appellant
Versus
RAJ KUMAR - Respondent
C. R. F. A. 19 Of 1984
Decided On : 08/23/1984
CIVIL PROCEDURE CODE - ORDER VIII, RULE 10 - WRITTEN STATEMENT - FILING - ADJOURNMENT - DISCRETION OF COURT - EXERCISE OF - FACTORS TO BE CONSIDERED - COURT'S FAILURE TO EXERCISE DISCRETION - EFFECT - REMAND OF SUIT.
Fact of the Case:
Defendant 1 failed to file a written statement in a suit filed by the plaintiff despite being granted multiple adjournments. On the date fixed for filing the written statement, which was a Gazetted holiday, the defendant's counsel sought an adjournment, which was opposed by the plaintiff's counsel. The trial court, without considering the reasons for the defendant's failure to file the written statement, pronounced judgment and passed a decree in favor of the plaintiff under Order VIII, Rule 10 of the Code of Civil Procedure (CPC).
Finding of the Court:
The court held that the trial court erred in pronouncing judgment and passing a decree against the defendant without exercising its discretion to grant an adjournment. The court observed that Order VIII, Rule 10 of the CPC empowers the court to pronounce judgment or make such orders in relation to the suit as it thinks fit in case of a failure to file a written statement. The court further held that the trial court should have considered the reasons for the defendant's failure to file the written statement and should have exercised its discretion judicially on the facts of the case.
Issues: 1. Whether the trial court erred in pronouncing judgment and passing a decree against the defendant without exercising its discretion to grant an adjournment? 2. Whether the trial court should have considered the reasons for the defendant's failure to file the written statement and exercised its discretion judicially on the facts of the case?
Ratio Decidendi: The court relied on the provisions of Order VIII, Rules 1 and 10 of the CPC and the Supreme Court judgments in Sangram Singh v. Election Tribunal, Kotah and Mathew Alenjical v. N. R. C. D. Corpn. to hold that the trial court has the discretion to pronounce judgment or make such orders in relation to the suit as it thinks fit in case of a failure to file a written statement. The court further held that the trial court should have exercised its discretion judicially on the facts of the case and should have considered the reasons for the defendant's failure to file the written statement before pronouncing judgment and passing a decree against the defendant.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the trial court, and remanded the suit to the trial court with a direction to accept the written statement of the defendant if it is submitted by a specified date and on payment of costs. The trial court was directed to proceed with the trial of the suit in accordance with law and conclude it within a specified period.
S. K. MAL LODHA, J.
( 1 ) THIS appeal under S. 96 of the C. P. C. 1908 has been filed against the judgment and decree dt. March 2, 1984 of the District Judge, Bikaner by the defendant 1 -appellant Smt. Krishna Devi.
( 2 ) PLAINTIFF-RESPONDENT 1 instituted a suit against the defendant 1 Smt. Krishna Devi and defendant-respondent 2 Bank of Baroda, Branch, near Railway Station, Bikaner praying that a sum of Rs. 71,000/- deposited in Fixed Deposit Receipts with the Bank of Baroda be got realised by him though the Fixed Deposit Receipts stood in the names of the plaintiff, his son Pawan Kumar (deceased) and defendant 1 Smt. Krishna Devi (widow of Pawan Kumar ). It was averred by the plaintiff that defendant 1 had no title and interest in the amounts of the Fixed Deposit Receipts and hence she is not entitled to get the amount of Rs. 71,000/- and interest thereon amounting to Rs. 2,000/- and also subsequent interest. Summons was issued to defendant 1 in the prescribed form under O. V,rr. 1 and 5 C. P. C. It was inter alia, stated in the summons that was issued to defendant 1 for the hearing of Oct. 20, 1983 as follows : summons was refused by her and therefore it was affixed at her residence. Nobody appeared on her behalf on Oct. 20, 1983. The trial Court ordered that one summons may be sent by registered post acknowledgement due. Thereafter, on Nov. 17, 1983, appearance was put in on behalf of defendant No. 1 and an adjournment was sought for filing the written statement. On Jan. 6, 1984, Feb. 8, 1984 and Feb. 20, 1984, adjournments for filing written statements were sought and they were granted. It will be relevant here to quote the material part of the order-sheet dt. Feb. 20, 1984 which relates to the grant of adjournment for filing written statement on certain conditions: the date fixed for the filing of the written statement was March 1, 1984, March 1, 1984 was a Gazetted holiday on account of Mahashivratri. The case was taken up on March 2, 1984. On that date, learned counsel for the defendant 1 again sought time for filing the written statement, which was opposed by the plaintiffs counsel. The learned District Judge after hearing the parties did not consider it proper to grant any more opportunity to defendant 1 in the interest of justice. After hearing the parties, he pronounced the judgment and passed the decree under O. VIII, R. 10 C. P. C. on March 2, 1984.
( 3 ) BEING dissatisfied, defendant 1 has filed this appeal as aforesaid.
( 4 ) A show cause notice was ordered to be issued to the respondents on March 20, 1984. On April 26, 1984, learned counsel appearing for the plaintiff-respondent 1 submitted that the case may finally be disposed of at the admission stage. Mr. P. K. Bhansali, learned counsel appearing for defendant 2 had no objection to this course being adopted. It was, therefore, ordered that the case may be listed for admission soon after the receipt of the record for final disposal at the admission stage. Record had been received.
( 5 ) THE appeal was filed on March 15,1984. On March 20, 1984, affidavit of defendant 1 (appellant) Smt. Krishna Devi along with certain documents was filed. It appears that plaintiff-respondent 1 filed an application on April 26, 1984 supported by affidavit of Shri Nirmal Kumar Sharma son of Shri Raj Kumar Sharma along with some documents. Affidavit of Shri Dwarka Prasad Joshi, Advocate of defendant 1 was filed on May 23, 1984 stating the circumstances under which the written statement was not filed on March 2, 1984. On behalf of plaintiff-respondent 1, affidavits of Shri Nirmal Kumar and Hargopal, Advocates were filed on Aug. 6, 1984. Thereafter, on Aug. 7, 1984, affidavit of defendant 1 Smt. Krishna Devi was filed.
( 6 ) I have heard Mr. N. N. Mathur, learned counsel for the appellant, Mr. C. D. Moondra, learned counsel for respondent 1 and Mr. P. K. Bhansali, learned counsel for respondent 2.
( 7 ) IT was urged by the learned counsel for the appellant that the le
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