GANPAT CHAND Vs. JHETHMAL

JUDGEMENT

(1.) THIS appeal has been filed against the order passed by the District Judge, Jodhpur dated May 5, 1981 allowing the defendants, appeal and setting aside the judgment and decree passed by the Munsif, Jodhpur dated December 22, 1979 and remanding the case to the learned Munsif with the direction that the defendants be allowed to take part in the proceedings in the suit so as to cross-examine the plaintiff's witnesses. He further directed that the defendants would not be entitled to lead evidence in rebuttal.

(2.) THE plaintiff Jeth Mal filed a suit for ejectment and for recovery of arrears of rent. It is not in dispute that the defendants failed to file a written statement inspite of several opportunities and ultimately on July 13, 1978 on the defendants' failure to file a written statement, the learned Munsif passed an order directing that proceedings be taken under Order 8, Rule 10 CPC, and ex parte evidence be recorded. An application was filed by the defendants under Order 9, Rule 7 CPC requesting that the order passed against them for taking ex parte proceedings be set aside. Learned Munsif dismissed the aforesaid application by his order dated September 19, 1978 after observing that no ex parte order was passed by him, but on July 13, 1978 he had decided to proceed under Order 8, Rule 10 CPC. A request by the defendant to reconsider the said order was rejected by the learned Munsif on October 5, 1979. Thereafter the learned Munsif recorded the plaintiff's evidence and decreed the suit ex parte on December 22, 1979.

(3.) SO far as the question of forfeiture of the defendant's right to file a written statement is concerned learned counsel for the defendant-appellants did not advance any argument and in my view rightly. Several opportunities were allowed to the defendants to file their written statement, but they failed to do so and in these circumstances the trial Court was fully justified in proceeding under Order 8, Rule 10 CPC. It is significant to notice the fact that Order 8, Rule 1 CPC and Order 8 Rule 10 CPC have been amended by the CPC. Amendment Act 1976. Before the aforesaid amendment was introduced under Order 8 Rule 1 CPC, the defendant had an option to file a written statement if he so liked but he could be directed by the Court to file a written statement so liked but he could be directed by the Court to file a written statement, which he desired to file of his own, it did not amount to an order by the Court requiring the defendant to file a written statement and in the absence of the defendant's written statement, the Court could proceed further with the suit. But in case, the Court specifically directed the defendant to file a written statement at or before the first date of hearing of within such time which the Court may permit in this behalf, then the failure on the part of the defendant to comply with the direction of the Court would entail the consequences of attracting the application of Order 8, Rule 10 CPC. Now after the amendment of Order 8, Rule 1 CPC the defendant is directed by law to file a written statement at or before the first hearing or within such time as the Court may permit for purpose and on the failure of the defendant to file his written statement at the first hearing or within the time allowed by the Court for the purpose, the Court is entitled to take proceedings, in accordance with the provisions of Order 8, Rule 10 CPC. Thus there is no option now left to the defendant but he had to file his written statement, as laid down in Order 8, Rule 1 CPC. But now two courses are open to the Court, on the failure of the defendant to file his written statement within the time to permitted or fixed by the Court, namely, that the Court may proceed pronounce judgment or it may make such other order in relation to the suit as it may think fit. If the trial Court does not adopt the first course specified in Order 8, Rule 10 CPC and does not proceed to pronounce judgment against the defendant then the Court may proceed further with the hearing of the suit in such a manner as it may think proper, in the circumstances of the case. The defendant, who has not filed a written statement, may in a case where the trial Court decides to proceed according to the second part of Order 8, Rule 10 CPC is although debarred from subsequently producing his written statement at some latter date, yet he may be allowed to cross-examine the witnesses produced by the plaintiff and he may also be allowed to lead evidence in rebuttal of the allegations made in the plaint and then he can also be allowed to take part in the final arguments, leading to the decision of the suit. It is not doubt true that if the defendant does not file his written statement, as directed by the Court, he cannot be allowed to examine any evidence in respect of specific defences that the might have taken in the suit, because it is well settled that where a claim was never made by the presentation of his defence by the defendant, then no amount of evidence can be looked into in respect of a plea which was never put forward. In this connection reference may be made to the decision of their Lordships of the Privy Council in Siddik Mohamed Shah v. Mt. Saran and others, AIR 1930 PC 57.