Order 8, Rule 10 of the Code of Civil Procedure gives the court discretion to pronounce judgment against the defendant or make any other order in relation to the suit, including granting more time to file the written statement, when the defendant fails to file the written statement within the time allowed.

ORDER :

1. This is a defendants' first appeal against the judgment and decree dated 16-7-1977 passed by the Additional District Judge, Betul, in Civil Suit No. 2-A of 1977, acting under Order 8, Rule 10, Code of Civil Procedure.

2. The point for decision in the present case is; the true effect of sub-rule (1) of Rule 1; sub-rule (2) of Rule 5 and Rule 10 of Order 8, Code of Civil Procedure, as they now exist after the recent amendment of the Code by the Code of Civil Procedure (Amendment) Act No. 104 of 1976. We shall now state the facts which alone are relevant for the decision of this point.

3. The suit was filed in the trial Court on 26-3-1977. Summonses were issued to the defendants in which the date of first hearing was mentioned as 15-4-1977 and a direction was given for filing the written statement a week before that date. Defendants failed to appear or file the written statement as required and consequently on that date, the Court ordered that the suit be heard ex-parte and 30-4-1977 was fixed for recording plaintiffs evidence. Meanwhile on 21-4-1977, defendants applied for setting aside the ex-parte order. That application was allowed on 11-5-1977 and the ex-parte order made earlier was set aside. By the same order, the defendants were required to file their written statement on 1-7-1977. On 1-7-1977, the defendants filed their written statement but omitted to file the schedule thereto which was mentioned therein. That schedule was referred for describing the properties specified therein. The case was then adjourned to 16-7-1977. Obviously the incomplete part of the written statement i.e. the schedule, had to be filed by that day. This was not done and the schedule remained to be filed even on 16-7-1977.

4. In the above circumstances, on 16-7-1977, the trial Court came to the conclusion that it had no option in the matter and construing Order 8, Rule 10, Code of Civil Procedure, as containing a mandate to decree the suit in plaintiff’s favour for non-filing of the written statement, the trial Court proceeded to decree the entire suit for this reason alone. This has led to the present appeal.

5. The main question before us is whether the trial Court was right in reaching the conclusion that failure to file the written statement on a date fixed for the purpose obliges the Court after the recent amendments made in Order 8, Code of Civil Procedure, to decree the suit under Order 8, Rule 10, without giving any discretion to the Court to pass any other order. The answer to this question depends mainly on the meaning and true effect of the provisions noted earlier by us. We shall now consider the meaning of those provisions.

6. Sub-Rule (1) of Rule I of Order 8 reads as under:-

“Written Statement - (1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.”

By the recent amendment, the earlier Rule l has been renumbered as sub-rule (1) of Rule 1 and the words “may and, if so required by the Court” have been omitted therein. These omitted words occurred earlier within the brackets. The remaining sub-rules added by the recent amendment do not concern us for deciding the point involved in this appeal. The plain meaning of this provision after its amendment in this manner clearly is that the defendant must file his written statement within the time allowed by the Court. In short, filing of the written statement by defendant has now been made obligatory. Omission of the words indicated earlier from the provision reinforces this conclusion.

7. Sub-Rule (2) of Rule 5 then is as under:-

“(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.”

The earlier Rule 5 continues after amendment as sub-rule (1) and the subsequent sub-rules added to