K RAVINDRA DEVADIGA Vs. SEBASTIAN BRITTO

JUDGEMENT

(1.) This revision petition is directed against the order dt. 19-8-1988 made in Misc. Case No. 10/1985 on the file of the Civil Judge, Mangalore, Dakshina Kannada District. That petition was one made under O.IX, R.13 of the C.P.C. The prayer therein was to set aside the ex parte decree passed on 28-2-1985 in S.C. No. 376/1983 on the file of that Court. On the pleadings in the said miscellaneous case, the lower Court formulated the following three points for consideration :

(2.) The facts set out are not in dispute. The petitioner was represented on the date the plaintiff was examined in support of his plea even in the absence of there being no written statement. It was however argued by Mr. B.V. Acharya, learned counsel for the petitioner, that mere presence of the advocate cannot be held to be effective representation of the defendant as held by some of the High Courts unless such pleader is duly instructed and able to answer all material questions relating to the suit or by pleader accompanied by some person able to answer all such questions, cannot be said to be an error by a pleader, if the pleader appears on the date of hearing and states that though he has filed his vakalathnama, he has not received instructions in regard to the case and that he is therefore unable to go on with the suit. The learned author has relied upon some earlier decisions starting from AIR 1889 up to 1942 rendered by the various High Courts in support of the provision founded on O.5, R.1 of the C.P.C.

(3.) I do not think that those decisions or those views will be of much assistance to the petitioner in the light of the amendment made to the C.P.C. in 1976 providing R.10 of O.8 enabling the Court to pass an order proceeding to judgment or pass any appropriate order, moment there is failure to file a written statement. Such contingency may arise on the occurrence of two events; when the defendant fails to appear and when there is no written statement filed, even though he may have entered appearance despite chances given. A Division Bench of this Court while construing the amended R.10 of O.8 of the C.P.C. in R.F.A. No. 496/1988 disposed of on 30-1-1989 (reported in 1989 (1) Kant LJ 225) has held that the principle underlying R.10 of O.8 of the C.P.C. is that the plaint allegations are deemed to have been admitted by non-traverse by failure to file the written statement. It is in that position the Court may proceed to pass judgment or pass any other appropriate order on the failure of the defendant to file the written statement. The Supreme Court in the case of Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162 elaborately examined the same question with reference to the striking out of defence under the provisions of the West Bengal Premises Tenancy Act (12 of 1956). That is to say, what is the effect when there is no right of defence. A Full Bench of the Calcutta High Court by a majority of two to one had taken the view that right of defence excluded any further participation by the defendant in the proceedings before the Court. The Supreme Court disagreed with that view and approved the decision of the dissenting single Judge of the Full Bench of that High Court and laid down that the word 'defence' must be broadly construed and that included the right of cross-examination of the plaintiff's witnesses even though there was no defence to plaintiff's case. In that context, Supreme Court laid down that while there may be cases in which the trial Judge may exercise his choice to proceed to judgment on the basis of the plaint allegations or call for proof nevertheless the basic principle of the plaintiff being required to prove his allegations should not be lost sight of.