1988 Supreme(MP) 505

IN THE HIGH COURT OF MADHYA PRADESH
S. K. Dubey, J.
Ramchandra - Appellant
Vs.
Sagarmal - Respondent
M. A. No. 31 of 1988 (I)
Decided On : 30-07-1988

Headnote:(1) Civil Procedure Code, 1908 – O. 8, R. 10 – plaintiff asked to lead evidence – judgment is not pronounced under.

       (2) Civil Procedure Code, 1908 – O. 8, R. 1 (I) – provision under – object is to advance justice.

       (3) Civil Procedure Code, 1908 – O. 9, R. 6 and O. 8, R. 1 – date fixed for filing written statement – not fixed for hearing – no ex parte order can be passed.

       (4) Civil Procedure Code, 1908 – O. 5, R. 1 (proviso) and O.8, R. 1 – proviso as inserted – does not bar defendant to file written statement on first hearing.

       (5) Civil Procedure Code, 1908 – O. 14, R. 1 – date of framing of issues – is first hearing date.

        Short Note

       1. Short facts leading to this appeal are that the plaintiff/respondent filed a suit against the defendant/appellant for recovery of Rs. 43,000/ – . The summons of the said suit was issued under order 5, R. 1 and 5 of the Code of Civil Procedure to the appellant. In the summons, two different dates were given one for filing the written statement on or before 30 – 11 – 1987, and another date 7 – 12 – 1987, was mentioned as the date for framing of issues. The appellant failed to file his written statement on or before 30 – 11 – 1987, but appeared on 7 – 12 – 1987, with his advocate, keeping written statement ready. The trial Court did not take the written statement on record as on 30 – 11 – 1987, the said Court had already ordered to proceed exparte against the defendant. The appellant/defendant submitted an application under O.9. R. 7 of the Code of Civil Procedure, which was also dismissed, the statements of the witnesses of the plaintiff were recorded, and thereafter, an exparte decree was passed on the same day. The appellant/defendant on 5 – 1 – 1988, i. e. within thirty days from the date of passing of the exparte decree, filed an application under O. 9, R. 13, of the Code of Civil Procedure. This application was also dismissed by the trial Court without notice to the opposite side only on plain reading of the application, saying that the defendant has alleged that he is an old man and could not read the date 30 – 11 – 87, but in the application under O.9, R. 7, of the Code of Civil Procedure filed on 7 – 12 – 87, no such ground was shown.

       2. Held: After considering respective submissions made by the learned counsel, I am of the opinion that the Court bas acted in a' dictatorial manner without applying its mind on the question of two dates mentioned in the summons. The trial Court ought to have considered whether 30 – 11 – 87, was the date of hearing or not? If it was not the date for hearing, no exparte order could have been passed. The ex parte order so passed is without jurisdiction and cannot be sustained, in law. The application under O. 9, R. 7 of the Code of Civil Procedure was filed on the date of framing of issues which in fact was the date of hearing, Order 8, R. 1 of the Code of Civil Procedure itself distinguishes between the date of hearing' in the ,suit and the date of filing of the written statement. The date of filing of the written statement cannot be confused with the date of hearing of the suit. Under O. 5, R. 5 of Code of Civil Procedure the summon has to mention the date of, hearing of the suit i. e. for settlement of issues only or for final disposal of the suit and in the summons so issued, the Court may direct the defendant to file the written statement of his defence, in accordance with the proviso added in O. 5, R. 1 of the Code of civil procedure by way of amendment in the Civil Procedure Code in 1976. But, this does not bar a defendant to file its written statement on the date of first hearing i. e. for settlement of issues, which is evident from the language used under R. 1 of order 8 of the Code of Civil Procedure. The first hearing means the day on which the Court goes into pleadings in order to understand the contentions of the parties and thereafter, the issues have to be framed, the day on which such issues are framed is the first hearing of the Suit,: (See Sangram Singh v. Election Tribunal Kotan and another, AIR 1955 SC 425; and Aliram Pamaji and Ors. v. Uttam Chand Motilal Agarwal, AIR 1939 Nag. 110). Thus, the order of proceeding exparte was illegal.

       3. In any case, rule 1 (1) of Order 8 has to be worked out in a manner so as to advance justice. It is not intended to punish the defaulting defendant for his omission. Time fixed for filing written statement may be extended by exercising powers under O. 8, R. 1 of the Code of Civil Procedure or even under S. 151, 148 of the Code of Civil Procedure. The provisions are not penal but are designated to facilitate justice. The trial Court clearly erred in not taking the written statement on record which was submitted to it on the date of first hearing. The order rejecting the application under O. 9, R. 7 of the Civil Procedure Code, was also illegal and passed with material irregularity.

       4. At this stage, Shri Jain submits that the Court was empowered under O. 8, R. 10 of the Code of Civil Procedure, in default of the filing of the written statement by the defendant to pronounce the judgment against the defendant. Under O. 8, R. 1 of the Code of Civil Procedure, the defendant was to file written statement at or before the first hearing or within the time permitted by the Court, as the Court did not grant time, the Court was right in passing an exparte order and thereafter, the decree against the defendant.

       5. In my opinion, this argument is not available for Mr. Jain, because O. 8, R. 10 of the Civil Procedure Code clearly says that the Court may, in case default is committed by the defendant in filing the written statement, the Court shall pronounce the judgment against him or make such order in relation to the suit as thinks fit. The trial Court has not acted under O. 8, R. 10 of the Code of Civil Procedure. The trial Court is not obliged necessarily to pronounce judgment against the defendant merely because the defendant has failed to file the written statement within the time given by the Court. The Court did not pronounce judgment under O. 8, R. 10 of the Code of the Civil Procedure but asked the plaintiff to lead evidence. The trial Court in the circumstances ought to have taken the written statement on record, at the most, costs could have been imposed for delay in filing the written statement. (See Mathew Elenjical and another v. The Nagpur Roman Catholic Diocesan Corpn., AIR 1978 MP 39; State of Madhya Pradesh v. Ratanlal, 1983 MPWN Note No. 311; Manoraman Shrivastava v. Laxmibai, 1981 MPWN Note No. 99 (Vol). II).

       6. In my opinion, the trial Court acted illegally in not taking the written statement on record and erred in dismissing the application under O. 9, R. 7 of the Code of Civil Procedure as well as under O. 9, R. 13 of the Code of Civil Procedure, as all proceedings from the day the exparte order was passed, were illegal and were without jurisdiction. AIR 1955 SC 425 followed. AIR 1939 Nag. 110, AIR 1978 MP 39 : 1977 (II) MPWN 443, 1983 MPWN 311 and 1981 (II) MPWN 99 relied on. Appeal allowed.