SHIRAJASAB HUSENSAB EXAMBI Vs. ASHOK PANDITAPPA KADDIMANI

JUDGEMENT

(1.) THE unfortunate plaintiff whose suit was dismissed, despite the fact that the defendant neither appeared nor filed the written statement before the lower Court as well as the Appellate Court, is the appellant before this Court.

(2.) IT is indeed a pity that the subordinate Courts have forgotten the basic of the Code of Civil Procedure and embarked upon an enquiry even in the absence of the defendant coming and appearing before it. The only provision under which a plaint can be rejected is Order 7, Rule 11, Civil procedure Code. In the case of rejection of the plaint, where the plaint does not disclose the cause of action; where the relief claimed is undervalued or the suit appears from the statement of the parties to be barred under any law. One can understand the plaint can be rejected on those grounds initially. Under Order 9, Rule 6 (l) (a), if the plaintiff appears but the defendant does not appear when the suit is called on for hearing and when the summons are duly served, the Court may make an order that the suit be heard ex parte. The Court may adjourn the hearing under Order 9, Rule 7. But if it does not adjourn the suit to enable the defendant to appear and contest then it must proceed to pass ex parte judgment. Even in case where the defendant appears but later on fails to present the written statement, Order 8, Rule 10 gives a mandate to the court "the Court shall pronounce the judgment against him". Order 15, rule 1 makes it further clear that where the first hearing of the suit, it appears that the parties are not at issue on any question of law or on facts, the Court may at once pronounce the judgment. In fact, even under Order 17, Rule 3, when the parties themselves do not produce the evidence then the Court may proceed to decide the suit forthwith.

(3.) A cumulative reading of these provisions clearly go to show that once a claim is made by the plaintiff and such claim is not barred by any law for the time being in force then the Court must pass a decree in favour of the plaintiff. These salient features have not been followed. Therefore, it has become necessary for me to hold that (1) when the defendant does not appear and the Court is satisfied that the summons have been duly served, the Court shall pass a decree as prayed for by the plaintiff unless the relief itself is prime facie barred by limitation or unknown to law. But when it involves a factual allegation, it is not the duty of the Court to go into such factual allegation and find out whether factual allegations are true or not.