# Pradeep Narain Sharma & another v. Satya Prakash Pandey - **Citation:** High Court of Judicature at Allahabad #39718 - **Court:** High Court of Judicature at Allahabad - **Decided:** 1998-12-19 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-narain-sharma-another-v-satya-prakash-pandey-39718 - **Pages:** 5 ## Text 1ALL] Pradeep Narain Sharma & another V. Satya Prakash Pandey 19 his brother was involved in a criminal proceeding and absconding, it was held that subletting was not proved. In Ram Prakash v. Shambhu Dayal, AIR 1960 Alld 395, where the parties were close relations and one of them came from Pakistan to take shelter with the other, there was no presumption that a sub-tenancy was created merely because the host and his wife allowed the refugee guest to live with them and then, for the sake of enlarging available accommodation shifted to another house but left a part of their family in the old house. 10. The court is to examine the nature of possession of such person who is alleged not to be member of family. If his possession is in the nature of a licensee without putting him in exclusive possession, it cannot be taken his occupation as contemplated under Section 12(1)(b) of the Act. The Rent Control and Eviction Officer before declaring the vacancy is to examine all of the aspects of the matter. 11. In view of the above the writ petition is allowed and the order dated 19.12.1998 is quashed. The Rent Control and Eviction Officer shall re-determine the matter on the question of vacancy afresh keeping in view the observations made above and in accordance with law. It will be open to the parties to lead evidence before him. The parties shall bear their own costs. 5(9,6,21$/ -85,6',&7,21 5(9,6,21$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( 7+( +21·%/( '.6(7+ - '.6(7+ - &LYLO 5HYLVLRQ 1R RI 3UDGHHS 1DUDLQ 6KDUPD 6RQ RI /DWH %KROD 1DWK 6KDUPD DQG DQRWKHU «5HYLVLRQLVW 'HIHQGDQW 9HUVXV 6DW\D 3UDNDVK 3DQGH\ «2SSRVLWH SDUW\ 3ODLQWLII &RXQVHO IRU WKH 5HYLVLRQLVW 6UL 3.*DQJXO\ &RXQVHO IRU WKH 2SSRVLWH SDUW\ 6KUL $.8SDGKD\D &RGH RI &LYLO 3URFHGXUHV R9,,, 5U DQG UHDGZLWK 3URYLQFLDO 6PDOO &DXVHV &RXUWV $FW 6([SDUWH GHFUHH 3RZHU XQGHU 5 KHOG GLVFUHWLRQDU\ DQG QRW PDQGDWRU\'LVFUHWLRQ WR EH H[HUFLVHG MXGLFLDOO\,Q H[SDUWH SURFHHGLQJ HYHQ LQ DEVHQFH RI ZULWWHQ VWDWHPHQW SODLQWLII KDV WR SURYH KLV FDVH E\ H[DPLQLQJ KLPVHOI)DLOXUH GHIHQGDQW WR ILOH :6 GRHV QRW LSVR IDFWR HQWLWOH SODLQWLII WR D GHFUHH +HOG 7KXV LW DSSHDUV WKDW WKH FRXUW KDG SURFHHGHG LOOHJDOO\ DQG ZLWK PDWHULDO LUUHJXODULW\ LQ GHFUHHLQJ VXLW H[SDUWH WKH JURXQG ZLWK DV PHQWLRQHG LQ 5XOH RI RUGHU 9,,, RI &RGH ZKLFK LV DSSOLFDEOH E\ UHDVRQ RI VHFWLRQ RI WKH 3URYLQFLDO 6PDOO &DXVH &RXUW¶V $FW DV ZHOO DV LQ WKH JURXQG RI PHULW LI WKH FDVH LWVHOI ZLWKRXW UHIHUULQJ WR WKH VWDWHPHQWV PDGH E\ WKH SODLQWLII WR VXSSRUW WKH SODLQW FDVH LQ RUGHU WR HQWLWOH KLP WR WKH UHOLHI SUD\HG IRU 7KHUHIRUH WKH RUGHU GDWHG UG 'HFHPEHU LV OLDEOH WR EH VHW DVLGH DQG LV KHUHE\ VHW DVLGH DFFRUGLQJO\ SDUD &DVH /DZ GLVFXVVHG ± $,5 3XQM $,5 3DW $,5 &DO &:1 $,5 *DX $,5 03 $,5 $OO $,5 12& $OO By the Court 1. By an order dated 3rd december,1999, the learned District Judge, Varanasi had decreed the S.C.C. Suit No.15 of 1999 exparte. In the said order, the rate of rent was found as Rs.2,000/-per month and that the revisionists defendants were defaulter for the period January,1997 till march,1999 and he accordingly directed payment of arrears of rent at the said rate. Mr. P.K. Ganguly, learned counsel for the revisionists contends that even if an ex-parte decree is passed, the INDIAN LAW REPORTS ALLAHABAD SERIES [2000 20 learned court has to apply its mind and it cannot accept the pleadings made out in the plaint as a gospel truth. Even in case of ex parte decree, the plaintiff has to prove his case and show that he is entitled to the relief sought for. From the judgement, it does not appear that the court had applied its mind. On the other hand, it suffers from various infirmities as is evident from the order itself. He further contends that the court had failed to comply with the provisions of Rule 10, Order VIII of the Code of Civil Procedure in that the said provision of the Code of Civil Procedure is applicable in a proceeding before the court of small causes by virtue of Section 17 of the Provincial Small Causes Courts' Act, 1887 as applicable in Uttar Pradesh. He further points out that the date that was fixed was third 3rd date. On two earlier occasions, the defendant had appeared and had obtained adjournment for filing written statement. On 3rd December, 1999, again an application for adjournment was filed, which was rejected on the ground that the defendant had obtained time on two occasions earlier. According to him, said rejection was not justified. In as much as the application for adjournment has to be rejected on its own merit and not on the ground that on earlier occasions, adjournment was obtained. On these grounds, he prays for setting aside the impugned order dated 3rd December,1999. 2. Mr. A.K. Upadhaya, learned counsel for the opposite party on the other hand strongly opposes the contention of Mr. Ganguly. He contends that the court was right in rejecting the application for adjournment since in the application itself, no sufficient ground was made out. According to him, even on the merit of the application for adjournment, the same could not have been allowed. He further contends that the court had applied its mind, which is reflected in the order itself. The plaintiff was examined and his statement was believed. Therefore, there was no infirmity in the order itself. He further contends that even in the application in support of the present revisional application, the revisionists themselves had admitted that the rent was originally Rs.2,000/- per month. He has sought to make out a different case to the extent that the rent was Rs.700/-per month , which is altogether an after-thought. He further contends that the revisionists are not disputing that they were defaulter for the period mentioned above. Therefore, according to him, there is no infirmity in the order and the said order should not be interfered with. 3. Mr. Ganguly, however, contends that the rent at the rate of Rs.2,000/- per month is not an admitted position in view of the subsequent agreement referred to in paragraph 7 of the said application and he also disputed the period of default. I have heard both the learned counsel at length. 4. After having perused the impugned order, it seems that the learned trial court had proceeded on the basis that the statements made in the plaint are correct since it was supported by the plaintiff but the said order does not show that the plaintiff was examined and that in his statement he has supported the statement made in the plaint. Though Rule 10, Order VIII of the C.P.C. permits pronouncing ex parte judgement if the defendants fails to file the written statement, yet it does not empower the court to decree the suit without having regard to the statement made in the plaint supported by materials, which might include oral evidence. There is nothing to indicate, even though it was a decision by the Small Cause Court, that the court is supposed to accept the statement made in the plaint as gospel truth. The plaintiff has to establish his case even by examining himself orally and the court has to refer to the same. The same time, it further appears that an application for adjournment was filed and that was rejected. From the dated 3rd December, 1999, by which the application for adjournment was rejected, it appears that the reason for rejection was 1ALL] Pradeep Narain Sharma & another V. Satya Prakash Pandey 21 simply the making of adjournment applications on two earlier occasions. The question of grant of adjournment is dependant on the case made out on the application for adjournment. It is to be decided on the merit of the application it may be one of the factor to be weighed with while considering such application. 5. Section 7 of the Code precludes the application of the Code in relation to suits triable by Small Causes Court in respect of the matters prescribed in clauses (a) and (b) thereof. Order 50 of the Code similarly precludes the application of the Schedule to the Code in the relation to suits cognizable by Small Cause Courts in respect of the matters mentioned in clauses (a) and (b) thereof. Section 17 of the Provincial Small Causes Courts Act, 1887 prescribes application of the Code in relation to suits cognizable by the Court of Small causes to the extent as prescribed in the Code and in the said Act. Application of Order VIII, Rules 1,9 and 10 has not been precluded by reason of Order 50. Therefore, non-filing of written statement within the meaning of Order VIII, Rule 1, as in the present case, definitely attracts the application of Rule 10. 6. But then in order to apply the said provision, the situation emerging in a given case has to be brone in mind. It is not a straight jacket formula; that whenever there is a default written statement, Rule 10 is to be applied. Order VIII, Rule 10 prescribes that in the failure to file written statement, judgement shall be pronounced against the defendant or it shall pass such order in relation to the suit as it thinks fit. 7. Thus, Order VIII, Rule 10 does not prescribe that whenever there is a failure to file written statement, the Court shall pronounce judgement against the defendant. On the other hand, it confers a discretion on the court either to pronounce a judgement or to pass such order as it may think fit. In case an extension of time is asked for, court has power to extent the time to file written statement within the scope and ambit of Rule of Order VIII, which provides for filing of written statement by the defendant at or before the first hearing or within such time as the court may permit. Such extension of time is also implicit in rule 10 within the expression "or make such order in relation to the suit as it think fit." It is not mandatory to pronounce judgement on the failure to file written statement. It is discretionary. The discretion of the court is always a judicial discretion to be exercised judiciously. 8. This proposition finds support in the case of Mehar Chand v. Suraj Bhan (AIR 1971 Puj.435) and Dineshwar Prasad Bakshi. v. Parameshwar Prasad Sinha (AIR 1989 Pat 139). On the other hand, the High Court at Calcutta took a liberal view in Ramesh Chandra Bhattacharya v. Corporation of Calcutta (AIR 1987 Cal.111 :90 CWN 904) holding that the defendant can file written statement even after conclusion of ex-parte evidence and before pronouncement of judgement. 9. In the case of State of Assam v. Basanta (AIR 1987 Gauhati 85), it was held that adjournment should not be rejected simply because the defendant obtained similar adjournments earlier. Admittedly, it was not a case within the meaning of Order VIII, Rule 9. The case is one under Order VIII, Rule 1 of the Code. Rule 1 refers to first hearing or within such time as the court may permit. This extension of time is a discretion of the court which is required to exercise the same judicially. 10. The above principle is based in the right to trial within a reasonable time. This principle travels back to the modern community from the date of Magha Carta when in 1225 the great charter given by King Hanry III stated in Clause (40) that " to no one will we sell, deny or delay right to INDIAN LAW REPORTS ALLAHABAD SERIES [2000 22 justice." This principle finds reiteration in the statement of Sri Jacob on 'reform of Civil Procedural Law (1982) at P 93: "The fundamental need for expedition in the legal process from the general recognition that delay in the administration of justice is a denial of justice, and a denial of justice is equivalent to the deprivation or abstraction of the legal right of the citizen. The plaintiff has to suffer the delay of obtaining satisfaction of his legal rights the defendant enjoys the benefit of his own legal wrong; and the State suffers because of its legal process is being abused." At the same time Sir Jacob was not oblivion of the other side of the coin. At page 94, he states that " while the need of accelerating the legal process is fundamental and over-whelming, there may be a danger of going to the opposite extreme in providing remedies and reforms to expedite the process. It is danger of the 'back-lash' or 'over-kill', whereby the procedural remedies to overcome delay may be worse than the decease and may even aggravate it. It is, therefore, necessary to guard against this danger and to see the problem of accelerating the legal process in balanced way and in its true perspective. Sir Jacob lastly warned that the passion for expedition in the trial may bring forth 'second class justice.' This was also the view of Prof. George de Leval of Belgium expressed in his report submitted in the First International Congress on the Law of Civil Procedure held in Belgium in 1977. Referring to this report, Sir Jacob concluded that " the Belgium Reporter has warned against the danger that accelerating the process of law might lead, not to attainment of justice but to arbitrariness in the legal process." 11. The maximum that 'delay defeats justice' is definitely a correct proposition recognized by the judiciary. But it is to be kept in mind that each party has a right to demand reasonable opportunity, though none has the right to stagger or stall the progress of the suit. The High Court of Madhya Pradesh in Ramesh Chandra v. Rameswar Dayal (AIR 1937 MP 110), following the Gauhati case had expressed the same view. In Surendra Kumar v. Rajendra Kumar Agarwal (AIR 1990 All 49), this Court dealing with a case arising out of a suit for ejectment held that there is a tendency of the tenants to delay the proceeding by seeking adjournments. They seek time to file written statement. Still the court should not refuse adjournment and decree the suit merely because several adjournment were avialed of in the past by the tenant. Opportunity to file written statement should be given to him. 12. Thus the principle that emerges is that the court is supposed to dispense justice to both and not to one and to endeavour for expedition but not at the cost of denial of justice. It's discretion is to be exercised judicially having regard to the facts and circumstances of the case. The court has to strike a balance. In the process of giving opportunity, the court cannot allow one of the party to stagger or stall the progress of the suit. At the same time, it can not deny reasonable opportunity to either of the parties. The question is dependent on the facts and circumstances of each case. Now let us examine the question whether Rule 10, Order VIII empowers the Courts to pass a judgement accepting the plaint case as gospel truth. Even if the defendant does not file written statement, the plaintiff has to prove and establish his case. He cannot succeed on the weakness of defence or absence of the defence. Failure to file written statement does not ipso facto entitle the plaintiff to a decree. There is an essential distinction between the phrases, burden of proof as a matter of law and pleadings on the one hand and as a matter of leading evidence on the other. In the former sense it is upon the party who comes to court for a decision on the existence of certain facts which he asserts. That burden is constant through- out the trial. The burden to prove in the sense of adducing evidence shifts from time to time. But such 1ALL] State of U.P. & others V. Ramagya Chaubey 23 shifting rakes place only when the initial burden is discharged. Therefore, it is for the plaintiff to establish his case by discharge of the initial burden and take advantage of the shifting of onus in the absence of written statement. But then it is for the plaintiff to ascertain the facts establishing his right or entitlement to the relief even though there may not be a written statement. 13. The above view may find support in the decision in Prem Daya Srivastava v. Moti Chand Lal (AIR 1982 NOC 33 (Au), to the extent that non-filing of written statement does not ipso facto entitle the plaintiff to a decree. 14. Thus it appears that the court had proceeded illegally and with material irregularity in decreeing the suit ex-parte on the ground as mentioned in Rule 10 of Order VIII of the Code, which is applicable by reason of Section 17 of the Provincial Small Cause Courts' Act as well as on the ground of merit of the case itself referring to the statements made by the plaintiff to support the plaint case in order to entitle him to the relief prayed for. Therefore, the order dated 3rd December, 1999 is liable to be set aside and is hereby, set aside accordingly. 15. The revision is allowed. The learned trail court shall proceed with the suit as expeditiously as possible after giving opportunity to the revisionists to file their written statement. The revisionists shall file their written statement within one month from this date. Mr. Ganguly submits that his client will not seek unnecessary adjournments. This order is subject to the condition that the revisionists shall go on depositing the rent month by month at the rate of Rs.2,000/-per month from the month of January,2000 onwards payable on 15th of the succeeding month subject to the result of the suit. So far as the arrears is concerned, the revisionists shall deposit the sum of Rs.25,000/- within a period of three months from today. In default of any of the above conditions, this order shall stand recalled. If the said amount is deposited, in that event, the court will proceed to disposed of the case accordingly, as early as possible. The opposite party shall be entitled to withdraw the sum of Rs.25,000/- as well as the monthly deposited in the learned trial court. However, he will furnish an undertaking in the learned trial court that in case the rate of rent and the arrears is decided otherwise, in that event, he will refund the excess amount to the revisionists after forthwith after the decree is passed. No cost. 16. Let a copy of this order be issued to the learned counsel on payment of usual charges within 7 days. Revision Allowed. $33(//$7( -85,6',&7,21 $33(//$7( -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' 129 129 %()25( %()25( 7+( +21·%/( 1. 0,75$ &- 7+( +21·%/( 1. 0,75$ &- 7+( +21·%/( 65 6,1*+ - 7+( +21·%/( 65 6,1*+ - 6SHFLDO $SSHDO 1R RI 6WDWH RI 83 RWKHUV «$SSHOODQWV 9HUVXV 5DPDJ\D &KDXEH\ «5HVSRQGHQWV &RXQVHO IRU WKH $SSHOODQWV 6& &RXQVHO IRU WKH 5HVSRQGHQWV 6UL &%