This Civil Revision Petition is filed to set aside the judgement and decree dated 9.3.2007 passed in OS.No.191/2006 by the learned District Munsif cum Judicial Magistrate, Nanguneri and to direct the said court to rehear the suit afresh and dispose of the same in accordance with law.
2. The petitioner/plaintiff has filed the above said suit for declaration that the sale deed executed by the 1st respondent dated 26.6.2006 in favour of the 2nd respondent is not valid and also for a direction to the 1st respondent to execute the registered sale deed in favour of the petitioner and for consequential injunction restraining the 2nd respondent from creating any further encumbrance in the suit property. The respondents/defendants though appeared through their Advocate, but did not file a written statement and hence, they were set exparte.
3. The plaintiff examined himself as PW.1 and marked two documents. The court below after analysing the evidence both oral and documentary produced by the petitioner dismissed the suit by judgement dated 9.3.2007. As against the same, the petitioner has filed this Civil Revision Petition under
Article 227 of the Constitution of India questioning the propriety of the court below in dismissing the suit despite the fact that the defendants have failed to file their written statement.
4. Mr.P.Ramasamy, the learned counsel for the petitioner assailed the said judgement and decree passed by the trial court on the ground that the lower court was bound to give judgement against the respondents under Order 8 Rule 10 of CPC when they failed to file a written statement. He would contend that the trial court has not given an opportunity to the petitioner's counsel to argue the case to meet out the points discussed by the learned counsel after accepting the proof affidavit.
5. The facts of this case would indicate that the defendants though appeared through their Advocate on 9.3.2007 but failed to file the written statement despite many adjournments but however, the judgement and decree had been passed by the lower court after analysing the evidence produced by the plaintiff dismissing the suit on merits.
6. It is seen that the provision of Rule 1, 5 and 10 of Order 8 of CPC are only permissive in nature. They enable the court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the language of Rule 10 says that the court "shall" pronounce judgement against the defendant, it is obvious from the language of the rule that there is still an option with the court either to pronounce judgement on the basis of the plaint against the defendant or to make such appropriate order as the court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the court to have a decree in favour of the plaintiff straightaway because a written statement has not been filed. These provisions rather indicate a contrary position namely that even in such cases it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place. What really is emphasised in Rule 10 of Order 8 of CPC is that the court is not obliged to pronounce judgement against a defendant merely because the defendant has failed to file the written statement within the time given by the court.
7. In the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani [AIR- 2003-SC-2508], the Honourable Supreme Court has held thus:- "Even if the suit proceeds exparte and in the absence of a written statement, unless the applicability of Order 8 rule 10 of CPC is attracted and the Court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded exparte the Court is not bound to frame issues under Order 14 and deliver the judgement on every issue as required by Order 20 Rule 5. Yet the trial court would scrutinize the available pleadings and documents, consider the evidence adduced and would do well to frame the 'points for determination' and proceed to construct the exparte judgement dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded bylaw nor permit its decision being influenced by irrelevant or inadmissible evidence."
8. In the case of Samesh Begam and another Vs. Margaret Celine [2002-3-CTC-33], this court expressed its anguish on the lower appellate court for taking a negative attitude to the defendant for not filing the written statement and setting aside the decree dismissing the suit passed by the trial court, holding that merely because the defendant has remained exparte, the plaintiff is not automatically entitled to a decree. This court referred to a decision of the Honourable Supreme Court rendered in the case of Balraj Taneja Vs. Sunil Madan [AIR-1999-SC-3380] wherein the Honourable Supreme Court has held thus:-
"A perusal of the above judgement will indicate that the suit had been decreed only because of the failure of the defendants in filing the written statement. This exhibits the annoyance of the court which is natural as no court would allow the proceedings to be delayed or procrastinated. But this should not disturb the Judicial composure which unfortunately is apparent in the instant case as the judgement neither sets out the facts of the case nor does it record the process of reasoning by which the court felt that the case of the plaintiff was true and stood proved. But in the instant case, as we have already seen above, it is not merely a matter of the defendants' conduct in not filing the written statement but the question of law as to what the court should do in a case where written statement is not filed is involved and this question has to be decided so as to provide for all the lower courts as to how the court should proceed in a situation of this nature."
9. A contention is put forth by the learned counsel for the petitioner that the trial court failed to take note of the fact that the counsel for defendant was very much present in the court and therefore, the lower court ought not to have set the defendant/ respondent exparte. It is not the physical presence of party or his counsel that is essential, but his appearance must be for the further progress of the suit. If that be the interpretation for appearance, naturally he must be treated as absent. In the case on hand, the trial court has noted that though the respondent's counsel was present, but no written statement was filed even after sufficient time given to the respondents/defendants. Therefore, the trial court was very conscious in setting the defendants exparte.
10. Rule 10 of Order 8 of CPC gives a discretion to the court either to pronounce judgement against the defendant or make such order in relation to the suit as it thinks fit. These words are of immense significance inasmuch as they give a discretion to the court not to pronounce judgement against the defendant and instead pass orders as it may think fit in relation to the suit. Hence, the trial court has rightly analysed the evidence and has come to a conclusion to dismiss the suit.
11. The next question that requires consideration is as to whether the petition under
Article 227 of the Constitution of India is maintainable.
12. Section 2(2) of CPC defines 'decree' thus:-
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include:-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
13. Section 96 of CPC provides for appeal only from decree. It is under Section 96 of CPC right to prefer appeal is provided. The procedure is under Order 41 of CPC. So the substantive right to prefer an appeal is under Section 96 of CPC and that must be from a decree.
14. In the instant case, the defendant has appeared through Advocate, but failed to file the written statement despite many adjournments and the judgement and decree had been passed by the lower court and such decree would not be an exparte decree within the meaning of Order 9 Rule 13 of CPC and Such decree is appealable under Section 96 of CPC.
15. In the case of J.Panda Vs. B.P.Kadia [AIR-1990-Gau-35], it is held that an exparte decree passed under Order 8 Rule 10 of CPC, appeal is maintainable under Section 96 of CPC. The revision under
Article 227 of the Constitution of India is not maintainable since the decree passed by the trial court is appealable and the remedy is only an appeal under Section 96 of CPC. Therefore, in my considered view the revision is misconceived and the same is liable to be dismissed.
16. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The District Munsif cum Judicial Magistrate, Nanguneri