RASH BEHARY RAY Vs. EMPEROR

JUDGEMENT

(1.) THE only possible point which could be taken is that this is not a matter which can properly be said to fall within the provisions of Section 115, Civil P.C. But in this particular case the learned Judge has taken such a fantastic view of the law and has made an order in circumstances where it is quite impossible for this Court to make any order than that we feel not only justified in exercising but bound to exercise our power in revision to set this order aside. We can only express astonishment that a Judge of the experience of the learned Judge should have so misconceived the operation and function of a written statement as to imagine that because something is put in in a written statement which in a sense is not true, and something is omitted from the written statement that of itself constitutes an offence under Section 193, I.P.C. It is obvious that written statement in a civil suit corresponds to the pleading which in England is called the defence, and that being so it is competent to the defendants to a suit to raise such pleas in their written statements as they think fit or to abstain from raising things which appear to the defendants not to be of advantage to them. In the present instance the matter, as I have said, is so fantastic as to be utterly ridiculous because these persona were charged, not with having made statements in their written statement which are not true but simply with omitting to say something which the learned Judge, by reason of the terms of Order 8, Rule 2, Civil P.C., thought that they ought to have included. Order 8, Rule 2 which corresponds to Order 9, Rule 15, of the English rules provides that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the plaint, as for instance fraud, humiliation, release, payment, performance or facts showing illegality. Of course all matters of the nature of those mentioned in that rule, if the defendant desires to take advantage of them, must be mentioned or raised in his written statement as otherwise he would be debarred from raising those matters at the trial. THE word "must" means such an obligation, that if he fails to do so he would be restrained from raising those matters later except under Rs. 9 of that order. THE learned Judge has wholly misunderstood the purpose and intent of the rule to which he has referred. It is perhaps a little unfortunate that by reason of the provisions of the Code pleadings, such as written statements, have to be verified because in many cases persons in verifying their pleadings, defendants their written statements or plaintiffs their plaints, are often found to say something which is not strictly true; for example, a defendant may deny the making of a contract or deny that a certain transaction took place, in order to force that plaintiff to give evidence and be subjected to cross-examination in the matter or to put the matters raised in issue. But I do not think that he renders himself liable for prosecution for perjury for making false statements. It is obvious that there is no justification for the order passed by the learned Judge in this case, which must be set aside. THE rule is therefore made absolute. Suhrawardy, J.

(2.) I agree.