SATYA NARAYAN SAH Vs. BRIJ GOPAL MUNDRA

JUDGEMENT

(1.) - This is an appeal by the defendant in a suit for specific performance. The suit was filed on 9-1-1987 and was registered as Title Suit No. 2 of 1987. The defendant appeared in the suit and as many as 18 adjournments were granted to him for filing the written statement. On 6-4-1988 the Court granted a cost of Rs.40.00 to the plaintiff and again allowed time to the defendant for filing written statement fixing 11-4-88. The written statement was not filed. On 11-4-1988 it appears the judgment was pronounced which was followed by a decree as required by O. VIII, R.10 of the Code of Civil Procedure (hereinafter referred to as the Code.) On 5-8-88 an application under O. IX, R.13 of the Code was filed on behalf of the plaintiff-appellant for setting aside the ex parte decree. The plaintiff also filed an application for condonation of delay. The application for setting aside the ex parte decree has been dismissed by the impugned order dated 17-8-88. This is how the defendant has come in appeal to this Court.

(2.) Learned counsel appearing for the appellant submitted that the Court below should have fixed a date for the ex parte hearing before pronouncing the judgment and passing the decree. For this he relied upon a Bench decision of this Court in State of Bihar v. Raj Ballam Singh (1986 PLJR (NOC) 33). With very great respect this decision does not help the appellant. In that case what had happened was that when the appellant did not file a written statement after the repeated adjournments, a pre-emptory order was passed by the Court fixing a particular date for filing the written statement failing which it was ordered the suit could be taken up ex parte for hearing. Ultimately the suit was taken up for ex parte hearing and a decree was passed. An application under O.IX, R.13 of the Code was filed for setting aside ex parte decree. It was held by this Court that when a written statement was not filed by the defendant within the time fixed by the trial Court, the trial Court had no jurisdiction to pass an order for posting the suit for ex parte hearing and it can only order that on the next date the suit would proceed without the written statement. That is what exactly the trial Court has done in the present case. Learned counsel then referred to a decision of this Court in Dineshwar Pd. Bakshi v. Parmeshwar Pd. Sinha, 1988 BBCJ 449: (AIR 1989 Pat 139). A learned single Judge of this Court held that when no written statement was filed within the time granted by the Court, the Court while pronouncing the judgment should go into the merit of the case and any judgment without going into the merit of the case was wrong. The present Misc. Appeal is not an appeal against the judgment and decree of the Court below and, therefore, this Court is not called upon to decide that question. The judgment and the decree passed by the Court below is not before me as this appeal is not against that judgment and decree. As such the question urged by the learned counsel does not arise.

(3.) The question of passing ex parte decree arises in the circumstances enumerated in O. IX of the Code. When the Summonses or notices are served upon the parties to appear but they do not appear then as required by O.IX, R.6, where the plaintiff appears and defendant does not appear when the suit is called on for hearing, the Court may make an order that the suit be heard ex parte, but when the notices have been served and defendants have appeared then they are required to file a written statement as required by O.VIII of the Code. O.VIII, R.10 of the Code provides that where any party from whom a written statement is required under R.1 or R.9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. This provision has been inserted by 1976 Amendment of the Code of Civil Procedure. It was experienced that the defendants successfully delayed the disposal of case for years without filing a written statement, therefore, this amendment was introduced so that the Courts would straightway proceed for pronouncing the judgment in the event of failure of the defendants to file the written statement even after several opportunities given to them. It is, therefore, amply clear that, as in the present case, notices had already been served upon the defendant who had also appeared there was no need to fix any date for ex parte hearing and the Court could proceed under O.VIII, R.10 of the Code and pronounce the judgment followed by a decree. The learned trial Court was fully justified in doing that and that cannot be called to be an ex parte decree.