# BALRAJ TA NEJA AND ANR v. SUNIL MADAN AND ANR

- **Citation:** [1999] Supp. 2 S.C.R. 258
- **Court:** Supreme Court of India
- **Decided:** 1999-09-08
- **Bench:** S. Saghir Ahmad, D.P. Mohapatra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balraj-ta-neja-and-anr-v-sunil-madan-and-anr-16820
- **Pages:** 22

## Headnote

Civil Procedure Code, Order 8 Rules 5 and JO-Suit-No Written
Statement filed-Facts in plaint not controverted-Still Court has to satisfy
itself that there is no fact requiring further proof, in spite of presumed
C admission and conduct of parties, before passing a decree-Without settling
the dispute set out in the plaint on which hinges the readiness and willingness
of plaintiff to pe1form his part of contract, a Decree of Specific Performance
could not be passed.
CPC, S 2 (9)- "Judgment" delivered in a case should contain, apart
D from facts of the case and points for determination, the process of reasoning
which led to the decision irrespective of whether the case is contested, is exparte, or where a Written Statement is not filed and is to be decided under
Order 8 Rule 10 or before the High Court in its Original Jurisdiction.
E
Specific Relief Act, S. I 6-Jn a suit for specific performance, readiness
and willingness of the party to perform his part of the contract is mandatory
for passing a decree.
F
Constitution of Jndia, Article I 36-Interference by Supreme Court under
discretionary jurisdiction-When called for.
A suit for Specific Performance was filed before the High Court on the
Original Side, by respondent No 1 against appellant and respondent No. 2
which was decreed in his favour by Single Judge without a reasoned judgment,
because he found that no written statement was filed despite time granted.
The Division Bench upheld the decree against which the appeal has been
G filed. The respondent submitted that the appellant had adopted dilatory tactics
and did not explain why no written statement was filed by him before the
lower Court.
H
Allowing the appeal, the Court
HELD : I. A perusal of the High Court judgment will indicate that the
258
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B. TANEJA v. S. MADAN
259
suit had been decreed only because of the failure of the defendants in filing A
the written statement. This exhibits the annoyance of the Court which is
natural as ~o Court would allow the proceedings to be delayed or
procrastinated. But this should not disturb the judicial composure which
unfortunately is apparent in the instant case as the judgment neither sets
out the facts of the case nor does it record the process of reasoning by which B
the Court felt that the case of the plaintiff was true and stood proved. As will
be evident from the facts, the plaint itself showed a serious disputed question
of fact involved between the parties with regard to obtaining the Certificate
(permission) from the Income Tax Department and its communication by the
defendants to the plaintiff(respondent No. I.) Since this question of fact was
reflective of the attitude of the plaintiff, whether he was ready and willing C
to perform his part of the contract, it had to be proved as a fact that the
Certificate (permission) from the Income Tax Department had not been
obtained by the defendants and, therefore, there was no occasion of sending
it to him. If the pleadings of respondent No. 1 were limited in character that
he had pleaded only this much that the defendants had not obtained the
Certificate (permission) from the Income Tax Department and had not sent D
. it to him, this fact would have stood admitted on account of non-filing of the
Written Statement by the defendants. But Respondent No. 1., as plaintiff,
himself pleaded that "defendants insisted that they had obtained the certificate
(permission) from the Income Tax Department and sent it to him". He denied
its having been obtained or sent to him. Non-filing of the Written Statement E
would not resolve this controversy. The plaint allegations, even if treated as
admitted, would keep the controversy alive. This fact, therefore, had to be
proved by the plaintiff and the Court could not have legally proceeded to pass
a judgment unless it was established clearly that the defendants had committed
default in not obtaining the Certificate (permission) from the Income Tax
Department and sending the same to the plaintiff. Unf

## Text

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A
BALRAJ TA NEJA AND ANR.
v.
SUNIL MADAN AND ANR.
SEPTEMBER 8, 1999
B
[S. SAGHIR AHMAD AND D.P. MOHAPATRA JJ.]
Civil Procedure Code, Order 8 Rules 5 and JO-Suit-No Written
Statement filed-Facts in plaint not controverted-Still Court has to satisfy
itself that there is no fact requiring further proof, in spite of presumed
C admission and conduct of parties, before passing a decree-Without settling
the dispute set out in the plaint on which hinges the readiness and willingness
of plaintiff to pe1form his part of contract, a Decree of Specific Performance
could not be passed.
CPC, S 2 (9)- "Judgment" delivered in a case should contain, apart
D from facts of the case and points for determination, the process of reasoning
which led to the decision irrespective of whether the case is contested, is exparte, or where a Written Statement is not filed and is to be decided under
Order 8 Rule 10 or before the High Court in its Original Jurisdiction.
E
Specific Relief Act, S. I 6-Jn a suit for specific performance, readiness
and willingness of the party to perform his part of the contract is mandatory
for passing a decree.
F
Constitution of Jndia, Article I 36-Interference by Supreme Court under
discretionary jurisdiction-When called for.
A suit for Specific Performance was filed before the High Court on the
Original Side, by respondent No 1 against appellant and respondent No. 2
which was decreed in his favour by Single Judge without a reasoned judgment,
because he found that no written statement was filed despite time granted.
The Division Bench upheld the decree against which the appeal has been
G filed. The respondent submitted that the appellant had adopted dilatory tactics
and did not explain why no written statement was filed by him before the
lower Court.
H
Allowing the appeal, the Court
HELD : I. A perusal of the High Court judgment will indicate that the
258
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B. TANEJA v. S. MADAN
259
suit had been decreed only because of the failure of the defendants in filing A
the written statement. This exhibits the annoyance of the Court which is
natural as ~o Court would allow the proceedings to be delayed or
procrastinated. But this should not disturb the judicial composure which
unfortunately is apparent in the instant case as the judgment neither sets
out the facts of the case nor does it record the process of reasoning by which B
the Court felt that the case of the plaintiff was true and stood proved. As will
be evident from the facts, the plaint itself showed a serious disputed question
of fact involved between the parties with regard to obtaining the Certificate
(permission) from the Income Tax Department and its communication by the
defendants to the plaintiff(respondent No. I.) Since this question of fact was
reflective of the attitude of the plaintiff, whether he was ready and willing C
to perform his part of the contract, it had to be proved as a fact that the
Certificate (permission) from the Income Tax Department had not been
obtained by the defendants and, therefore, there was no occasion of sending
it to him. If the pleadings of respondent No. 1 were limited in character that
he had pleaded only this much that the defendants had not obtained the
Certificate (permission) from the Income Tax Department and had not sent D
. it to him, this fact would have stood admitted on account of non-filing of the
Written Statement by the defendants. But Respondent No. 1., as plaintiff,
himself pleaded that "defendants insisted that they had obtained the certificate
(permission) from the Income Tax Department and sent it to him". He denied
its having been obtained or sent to him. Non-filing of the Written Statement E
would not resolve this controversy. The plaint allegations, even if treated as
admitted, would keep the controversy alive. This fact, therefore, had to be
proved by the plaintiff and the Court could not have legally proceeded to pass
a judgment unless it was established clearly that the defendants had committed
default in not obtaining the Certificate (permission) from the Income Tax
Department and sending the same to the plaintiff. Unfortunately the High F
Court did not consider this fact and proceeded almost blindly to pass a decree
in favour of the plaintiff merely because Written Statement had not been
filed in the case. The Single Judge, who passed the decree, did not consider
any fact other than the conduct of the defendants in seeking adjournments
of the case for the purpose of filing Written Statement So also, the Division G
. Bench did not consider any fact other than the fact that defendants had been
trying to prolong the proceedings by seeking adjourpment, and that too, by
· changing their counsel. The Division Bench also took into consideration the
fact that the appeal filed by the defendants against the decree passed by the
Single Judge was beyond time which again indicated their negligence. No
other fact was taken into consideration. The High Court is not absolved of H
260
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A its obligation to write a judgment as understood in common parlance. The
whole process of reasoning has to be set out for deciding the case one way
or the other. This infirmity in the impugned judgment is glaring and for that
reason also the judgment cannot be sustained.
(276-B-H; 277-B-D; 278-G; H; 279-A)
B
Razia Begum v. Sahebzadi Begum & Ors., AIR (1958) SC 886 = (1959)
SCR llll, relied on.
2. "Judgment" as defined in Section 2 (9) of the.Code of Civil Procedure
means the statement given by the Judge of the grounds for a decree or order.
It should be a self contained document from which it should appear as to what
C were the facts of the case and what was the controversy which was tried to
be settled by the Court and in what manner. The process of reasoning by
which the Court came to the ultimate conclusio~ and decreed the suit should
be reflected clearly in the judgment. Whether it is a case which is contested
by the defendants by filing a Written Statement, or a case which proceeds
D ex-parte and is ultimately decided as an ex-parte case, or is a case in which
the Written Statement is not filed and the case is decided under Order 8
Rule 10, the Court has to write a judgment which must be in conformity with
the provisions of the Code or at least set out the reasoning by which the
controversy is resolved. Even if the definition of "judgment" were not contained
in Section 2 (9) or the contents thereof were not indicated in Order 20 Rule
E 1 (2) CPC, the judgment would still mean the process of reasoning by which
a judge decides a case in favour of one party and against the other. In judicial
proceedings, there cannot be arbitrary orders. A judge cannot merely say
"Suit decreed or "~uit dismissed". [277-E-G; 278-D-E; G-H)
F
Nanhe v. Saiyad Tasadduq Husain, (1912) 15 Oudh Cases 78; Thippaiah
and Ors. v. Kuri Obaiah, ILR (1980) 2 Karnataka 1028 and Dineshwar
Prasad Bakshi v. Parmeshwar Prasad Sinha, AIR (1989) Patna 139, referred
to.
3. There are two separate and distinct provisions under which the
G Court can pronounce judgment on the failure of the defendant to file Written
Statement. The failure may be either under Order 8 Rule 5 (2) under which
the Court may either pronounce judgment on the basis of facts set out in the
plaint or require the plaintiff to prove any such fact; or the failure may be
under Order 8 Rule 10 CPC under which the Court is required to pronounce
judgment against the defendant or to pass such order in relation to the suit
H as it thinks fit. It is clear that the Court, at no stage, can act blindly or
•
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B. TANEJA v. S. MADAN
261
mechanically. While enabling the Court to pronounce judgment in a situation A
where no Written Sta'iement is filed by the defendant, the Court has also
been given the discretion to pass such_ orders as it thinks fit as an alternative.
This is also the position under Order 8 Rule to CPC where the Court can
either pronounce judgment against the defendant or pass such order as it
may think fit. In a case, specially where a Written Statement has not been
filed by the defendant, the Court should be a little cautious in proceeding B
under Order 8 Rule . to CPC. Before passing the judgment against the
defendant it must see to it that even if the facts set out in the plaint are
treated to have been admitted, a judgment could possibly be passed in favour
of the plaintiff without requiring him to prove any fact mentioned in the
plaint. It is a matter of the Court's satisfaction 2nd, therefore, only on being C
satisfied that there is no fact which need to be proved on account of deemed ·
admission, the Court can ~onveniently pass a judgment against the defendant
who has not filed the Written Statement. But if the plaint itself indicates that
'here are disputed questions offact involved in the case regarding which two .
different versions are set out in the plaint itself, it would not be safe for the
Court to pass a judgment without requiring the plaintiff to prove the facts D
so as to settle the factual controversy. Such a cas<;would be cov'ered by the
expression "the Court may, in its discretion, require any such fact to be
proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may
make such order in relation to the suit as it thinks fit" used in Rule to of
Order 8. (267-F-G; 271-D-E; 272-D-G]
E
Sangram Singh v. Election Tribunal, Kotah & Anr., AIR (1955) SC 425
= (1955] l SCR 1, relied on
Chuni Lal Chowdhry v. Bank of Baroda and Ors., AIR (1982) J & K
93 and Dharam Pal Gupta v. District Judge, Etah, (1982) All Rent Cases F
562, approved
State of UP. & Anr. v. Dhar;,m Singh Mehra, AIR (1983) Allahabad
130; Smt. Sushi/a Jain v. Rajasthan Financial Corporation, Jaipur, AIR
(1979) Raj 215 and Rosario Santana Vaz v. Smt. Joaquina Natividate
Fernandes, AIR (1981) Goa 61, referred to' ,
G
4. There is yet another provision un.der which it is posslble for the
Court to pronounce judgment on admission. This is contained in Rule 6 of
Order 12. Under this Rule, Court can, at an interlocutory stage of the
proceedings, pass a judgment on the basis of admissions m:ide by the defendant.
But before the Court can act upon the admission, _it has to be shown that the H
262
SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.
A admission is unequivocal, clear and positive. This Rule empowers the Court
to pass judgment and Decree in respect of admitted claims pending adjudication
of the disputed claims in the suit. In spite of admission of a fact having been
made by a party to the suit, the Court may still require the plaintiff to prove
the fact which has been admitted ·by the defendant. This is also in consonan~e
B with the provisions of Section 58 of the Evidence Act. (270-A-F-G; 271-AJ
5. In a suit for specific performance it is mandatorily required by
Section 16 of the Specific Relief Act to plead readiness and willingness of
the plaintiff to perform his part of the contract. The Court, before acting
under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to
C find out whether all the requirements specially those indicated in Section 16
of the Specific Relief Act, have been complied with or not. Readiness and
willingness of the plaintiff to perform his part of the contract is a condition
precedent to the passing of a decree for specific performance in favour of
the plaintiff. (272-G-H; 273-A]
D
6. It is true that the jurisdiction under Article 136 of the Constitution
E
F
G
is a discretionary jurisdiction and notwithstanding that a judgment may not
be wholly correct or in accordance with the law, this Court is not bound to .
interfere in exercise of its discretionary jurisdiction. But in the instant
case, it is not merely a matter of the defendant's conduct in not filing the
Written Statement but the question of law as to what the court should do in
a case where Written Statement is not filed, is involved, and this question
has to be decided so as to provide for all the lower courts as to how the court
should proceed in a situation of this nature. (276-C-D]
CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 4968 of
1999.
From the Judgment and Order dated 29.4.98 of the Delhi High Court in
R.F.A. No. 36of1997.
Rakesh Dwivedi, Ashwani Bhardwaj and S.P. Sharma for the Appellants.
Kailash Vasdev for the Respondents.
The Judgment of the Court was delivered by
S. SAGHIR AHMAD, J. Leave granted.
H
Respondent No. l, Sunil Madan, filed a suit in the Delhi High Court
(
r
'· B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, I.)
263
against the appellants and respondent No.2 for specific performance of an A
agreement for sale in respect of property No.W-118, First Floor, Greater
Kailash-II, New Delhi. The suit was filed in May, 1996. Summons which were
issued to the appellants and respondent No.2 were duly served upon them
and in response thereto, they put in appearance before the Court on 20th
September, 1996 and prayed for eight weeks' time to file written statement · B
which was allowed and the suit was adjourned to 22nd of January, 1997.
Written Statement was not filed even on that date and an application was filed·
for further time to file the Written Statement which was allowed as a last
chance and the Written Statement was directed to be filed by 7th of February,
1997. The suit was fixed for 10th of February, 1997.
c
Since the Written Statement was still not filed, the Court decreed the
suit for specific performance in favour of respondent No.I under Order 8 Rule
10 C.P.C. Respondent No.I was directed to deposit a sum ofRs.3 lakhs, being
the balance amount of sale consideration, within six weeks and on the amount
being so deposited, he was· given the. liberty to apply to the court for
. appointment of a Commissioner for executing the sale .deed in his favour. The D
review application filed by the appellants includini( respondent No.2 was :
dismissed by the High Court on 13th of May, 1997. An appeal, which was filed
by the appellants, including respondent No.2, thereafter, before the Division
Bench (R.F.A.(OS) N0,36/97) was dismissed on 29.4.1998. It is in these
circumstances that the present appeal has been filed in this Court.
E
Mr. Rakesh Dwivedi, Sr. Advocate, appearing on behalf of the appellants
has contended that having regard to the circumstances of.the case, the High
Coilrt was not justified in passing the decree against the appellants, including
respondent No.2, for specific performance merely on the ground that Written
Statement was not filed by them on the date fixed for that purpose. It is also F
contended that the High Court had rejected the application for time to file
Written Statement on the ground that there was a change of counsel appearing
on behalf of the appellants and no reason was indicated by them for not filing
the Written Statement by 7th of February, 1997 or even on 10th of February,
1997 when ihe.suit was decreed under Order 8 Rule IO C.P.C., which indicates G
that the attitude adopted by the High Court in decreeing the suit under Order
S Ruie IO C.P.C. was wholly punitive in nature resulting in serious miscarriage
of justice. Mr. Rakesh Dwivedi also contended that even if the Court had
decreed the suit under Order S Rule 10 C.P.C., it ought to have written a.
"judgment" by stating clearly the facts of the case and the reasons for
decreeing the suit. The suit, it is contended, could not have been decreed H ·
264
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A merely for not filing of the Written Statement unless facts set out in the plaint
were found proved by the High Court.
Learned counsel appearing on behalf of respondent No. l has contended
that the appellants, including respondent No.2, had adopted dilatory tactics
B and their intention, from the very beginning, was to delay the disposal of the
suit so as to harass respondent No. I who had agreed to purchase the
property in question and had also paid substantial amount by way of earnest
money. It is also contended that the conduct of the appellants and respondent
No.2 was not proper and they were negligent throughout, inasmuch as not
only that they did not file. the Written Statement, they filed an appeal before
C the Division Bench which 'also was beyond time. It is also contended that
while applying for time for Written Statement as also for review of the
judgment passed by the Court under Order 8 Rule 10 C.P.C., the appellants
and respondent No.2 had not given any reason for not filing the Written
Statement on the dates fixed by the High Court and, therefore, having regard
to the conduct of the appellants as also the vital fact that the owner of the
D property, namely, respondent No.2, had not come up in Special Leave Petition,
this Court should not exercise its discretion under Article 136 of the Constitution
in favour of the appellants.
Since the suit has been decreed by the High Court under Order 8 Rule
t
E
I 0 C:P-.C., we will first examine the provisions contained in various Rules of
Order 8 to find out whether the jurisdiction was properly exercised by the
High Court in decreeing the suit under Order 8 Rule 10 C.P.C.
Order 8 Rule I provides that the defendant shall file a Written Statement
F of his defence. It is further provided by Rule 3 of Order 8 that it shall not be
sufficient for a defendant in his Written Statement to deny generally the
grounds alleged by the plaintiff, but defendant must deal specifically with
each allegation of fact of which he does not admit the truth. The further
requirement as set out in Rule 4 is that if the allegation made in the plaint is
denied by the defendant, the denial must not · be evasive. It is, inter alia,
G provided in Rule 5 of Order 8 that every allegatiow of fact in the plaint, if not .
denied specifically or by necessary implication or stated to be not admitted
in the written statement, shall be taken to be admitted
This Rule provides as under:
H
"Order 8 Rule 5 - Specific denial
' -·
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B. TANEJA-v. S. MADAN [S. SAGHIR AHMAD, J.)
265
( 1) Every allegation of fact in the plaint, if not denied specifically or A
by necessary implication, or stated to be not admitted in the pleading
of the defendant, shall be taken to be admitted except as against a
person under disability:
Provided that the Court may in its discretion require any fact so
admitted to be proved otherwise than by such admission.
B
(2) Where the defendant has not filed a pleading, it shall be lawful for
the Court to pronounce judgment on the basis of the facts contained
in the plaint, except as against a person under a disability, but the
Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub- rule (1) or
under sub-rule (2), the Court shall have due regard to the fact whether
the defendant could have, or has, engaged a pleader.
c
(4) Whenever a judgment is pronounced under this rule, a decree shall D
be drawn up in accordance with such judgment and such decree shall
bear the date on which the judgment was pronounced."
The scheme of this Rule is largely dependent upon the filing or nonfiling of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that
any fact stated in the plaint, if not denied specifically or by necessary E
implication or stated to be not admitted in the pleading of the defendant, shall
be treated as admitted. Under Rule 3 of Order 8, it is provided that the denial
by the defendant in his Written Statement must be specific with reference to
each allegation of fact made in the plaint. A general denial or an evasive
denial is not treated as sufficient denial and, therefore, the denial, if it is not F
definite, positive and unambiguous, the allegations of facts made in the plaint
shall be treated as admitted under this Rule.
The proviso appended to this Rule is important in the sense that
though a fact stated in the plaint may be treated as admitted, the Court may,
in its discretion, stili require such "admitted fact" to be proved otherwise than G
by such admission. This is an exception to· the general mle of evidence that
a fact which is admitted need not be proved.
Sub-rule (2) provides that if the defendant has not filed his Written
Statement, it would be lawful for the Court to pronounce judgment on the
basis of the facts contained in the plaint. The rule further proceeds to say H
266
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A that notwithstanding that the facts stated in the plaint are treated as admitted,
the Court, though it can lawfully pass the judgment, may before passing the
B
c
D
E
F
G
H
judgment require such fact to be proved. The rule is thus in consonance with
...
the Proviso which also requires the fact, even though treated as admitted, to
be proved. Thus, the Proviso and Sub- rule (2) read together indicate that
where:
(i)
an allegation of fact made in the plaint is not denied specifically,
or
(it)
by necessary implication, or
(fu) stated to be "not admitted" in the pleading of the defendant, or
(iv) the defendant has not filed the Written Statement,
Such allegations of facts shall be treated as admitted. The Court in this
situation can either proceed to pronounce judgment on such admitted facts
or may require the_plaintiff, in spite of such admission, to prove such facts.
Sub-rule (2) quoted above is thus an enabling provision which enables
the Court to pronounce judgment on the basis of the facts contained in the
plaint, if the defendant has not filed a Written Statement. What is important
to note is that even though a Written Statement is not filed by the defendant,
the court may still require a fact pleaded in the plaint to be proved. ·
We may now consider the provisions of Order 8. Rule 9 as also the
provisions contained in the other Rule, namely Rule 10, under which the
instant suit has been decreed by the High Court. These Rules are quoted
below:
"Rule 9. Subsequent pleadings -
No pleading subsequent to the
Written Statement of a defendant other than by way of defence to a
set-off or counter-claim shall be presented except by the leave of the
Court and upon such terms as the Court thinks fit, but the Court may
at any time require a Written Statement or additional Written Statement
from any of the parties and fix a time for presenting the same.
Rule 10. Procedure when party fails to present Written Statement
called for by Court -
Where any part}' from whom a Written Statement
is required under rule I or rule 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
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.]
267
to the suit as it thinks fit and on the pronouncement of such judgment, A
a decree shall be drawn up."
This Rule, namely Rule 10, was also amended by the Code of Civil
Procedure (Amendment) Act, 1976 (Act No. 104 of 1976). Prior to its
amendment, it was held in a number of decisions that the rule can be invoked
only in those situations where the Court has required the defendant to file B
the Written Statement in terms of Rule 9 of Order 8. A few other High Courts
had taken the view that this Rule would be applicable even to those cases
where a Written Statement was required to be filed under Order 8 Rule I CPC.
The conflict of decisions has been set at rest by providing specifically under
this rule that where a party from whom a Written Statement is required either C
under Rule I or Rule 9 of Order 8 fails to present the same within the time
permitted or fixed by the Court, the Court shall pronounce judgment against
him or make such order in relation to the suit as it thinks fit. Rule 10 thus
governs both the situations where a Written Statement is required under Rule
1 of Order 8 as also where it has been demanded under Rule 9. In both the
situations, ifthe Written Statement has not been filed by the defendant, it will D
be open to the Court to pronounce judgment against him or make such order
in relation to the suit as it thinks fit. It is to be noticed that if the Written
Statement is not filed, the Court is required to pronounce judgment against
the defendant. The words "against him" are to be found in Rule 10 of Order
9 which obviously means that the judgment will be pronounced against the E
defendant. This rule also gives a discretion either to pronounce judgment
against the defendant or "make such order in relation to the suit as it thinks
fit." These words are of immense significance, inasmuch as they give a
discretion to the Court not to pronounce judgment against the defendant and
instead pass such order as it may think fit in relation to the suit.
F
There are thus two separate and distinct provisions under which the
Court can pronounce judgment on the failure of the defendant to file Written
Statement. The failure may be either under Order 8 Rule 5(2) under which the
Court may either pronounce judgment on the basis of the facts set out in the
plaint or require the plaintiff to prove any such fact; or the failure may be G
under Order 8 Rule I 0 ·CPC under which the Court is required to pronounce
judgment against the defendant or to pass such order in relation to the suit
as it thinks fit.
This Court, in Sangram Singh v. Election Tribunal, Kotah & Anr., AIR
(1955) SC 425 = [1955) 1SCR1, observed on page 432 of the report as under: H
A
B
c
D
E
F
G
H
268
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
"(32) We have already seen that when a summons is issued to the
defendant it must state whether the hearing is for the settlement of
issues only or for the final disposal of the suit (0.5, R.5). In either
event, 0.8, R. l comes into play and if the defendant does not present
a Written Statement of his defence, the Court can insist that he shall;
and if, on being required to do so, he fails to comply -
"the Court may pronounce judgment against him, or make such
order in relation to the suit as it thinks fit." (0.8, R.10).
This invests the Court with the widest possible discretion and enables
it to see that justice is done to 'both' sides; and also to witnesses
if they are present: a matter on which we shall dwell later.
(33) We have seen that if the defendant does not appear at the first
hearing, the Court can proceed 'ex parte', which means that it can
proceed without a Written Statement; and 0.9, R.7 makes it clear that
unless good cause is shown the defendant cannot be relegated to the
position that he would have occupied if he had appeared. That means
that he cannot put in a Written Statement unless he is allowed to do
so, and if the case is one in which the Court considers a Written
Statement should have been put in, the consequences entailed by 0.8,
R.10 must be suffered.
What those consequences should be in a given case is for the Court,
in the exercise of its judicial discretion, to determine. No hard and fast
rule can be laid down. In some cases, an order awarding costs to the
plaintiff would meet the ends of justice: an adjournment can be granted
or a Written Statement can be considered on the spot and issues
framed. In other cases, the ends of justice may call for more drastic
action."
This decision was followed by the J&K High Court in Chuni Lal
Chowdhry v. Bank of Baroda and Ors., AIR (1982) J&K 93 in which it was
laid down as under:
"On the authority of these observations, Rule 10 can be taken to
relate to Rule 1 of Order 8 and on the defendant's failure to file Written
Statement of his defence, when so required, the court has the power,
either to pronounce the judgment against him or make such order in
relation to the suit as it thinks fit depending upon whether the suit
was for the final disposal or for the settlement of the issues only. In
...
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.]
269
the latter case, the court has ample discretion to grant more time for A
filing the Written Statement or to proceed to hearing of the suit
without such Written Statement The discretion cannot, however, be
exercised arbitrarily. In determining which course to adopt, the court
will always be guided by the facts and circumstances of each case.
Where the court decides to proceed to hearing of the suit without the B
Written Statement, that would not debar the defendant from taking
part in further proceedings of the case. His participation would, however,
be hedged in by several limitations. He will not be able either to crossexamine the plaintiffs witnesses or to produce his own evidence with
regard to any questions of fact which he could have pleaded in the
· Written Statement. He will, however, be competent to cross-examine C
the plaintiffs witnesses in order to demolish their version of the
plaintiffs case.
To the same effect is the decision of the Patna High Court in Siai
Sinha v. Shivadhari Sinha, AIR (1972) Pat. 81."
In Dharam Pal Gupta v. District Judge, Etah, (1982) All Rent Cases
562, the Allahabad High Court held as under:
D
"Therefore, reading Order VIII, R.10, C.P.C. along with O.VIII, R. 5,
C.P.C., it seems that even though the filing of Written Statement has
been made obligatory and the Court has now been empowered to pass E
a judgment on the basis of the_ plaint on the ground that no Written
Statement has been filed by th~ defendant still, the discretion of the
Court has been preserved and despite the non-filing of the Written
Statement the Court may pass any other order as it may think fit (as
laid down in 0. VII R. l 0) or the Court may in its discretion require any F
particular fact mentioned in the plaint to be proved as laid down in
Order VIII, R.5 sub-rule (2) C.P.C."
This decision was followed in State of UP. & Anr. v. Dharam Singh
Mahra, AIR (1983) Allahabad 130.
In Smt. Sushi/a Jain v. Rajasthan Financial Corporation Jaipur, AIR
· (1979) Raj 215 and also in Rosario Santana Vaz v. Smt. Joaquina Natividate
Fernandes, AIR (1981) Goa 61, it was laid down that if the defendant was
deliberately delaying the proceedings and had failed to assign good and
sufficient cause for not filing the Written Statement, the Court could forfeit
G
his right of defence.
H
270
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A
Thete is yet another provision under which it is possible for the Court
B
c
to pronounce judgment on admission. This is contained in Rule 6 of Order
12 which provides as under :
"R6 Judgment on admissions.
( 1) Where admissions of fact have been made either in the pleadings
or otherwise, whether orally or in writing,. the Court may at any stage
of the suit, either on the application of any party or of its own motion
and without waiting for the determination of any other question
between the parties, make such order or give such judgment as it may
think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1), a decree
shall be drawn up in accordance with the judgment and the decree
shall bear the date on which the judgment was pronounced."
D
This Rule was substituted in place of the old Rule by the Code of Civil
Procedure (Amendment) Act, 1976. The objects and reasons for this
amendment are given below:-
"Under rule 6, where a claim is admitted, the Court has jurisdiction to
enter a judgment for the plaintiff and to pass a decree on the admitted
E
claim. The object Of the rule is to enable a party to obtain a speedy
judgment at least to the extent of the relief to which, according to the
admission of the defendant, the plaintiff is entitled. The rule is wide
enough to cover oral admissions. The rule is ~eing amended to clarify
that oral admissions are also covered by the rule."
F
Under this Rule, the Court can, at an interlocutory stage of the
proceedings, pass a judgment on the basis of admissions made by the
defendant. But before the Court can act upon the admission, it has to be
shown that the admission is unequivocal, clear and positive. ·This Rule
empowers the Court to pass judgment and decree in respect of admitted
G claims pending adjudication of the disputed claims in the suit.
In Razia Begum v. Sahebzadi Anwar Begum & Ors., AIR (1958) SC 886
= 1959 SCR 1111, it was held that Order 12 Rule 6 has to be read along with
Proviso to Rule 5 of Order 8. That is to say, notwithstanding the admission
made by the defendant in his pleading, the Court may still require the plaintiff
H · to prove the facts pleaded by him in the plaint.
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.]
271
Thus, in spite of admission of a fact having been made by a party to A
the suit, the Court may still require the plaintiff to prove the fact which has
been admitted by the defendant. This is also in consonance with the provisions
of Section 58 of the Evidence Act which provides as under: .
"58. Facts admitted need not be proved-No fact need be proved in
· any proceeding which the parties thereto or their agents agree to B
admit at the hearing, or which, before the hearing, they agree to admit
by any writing under their hands, or which by any rule of pleading
in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted C
to be proved otherwise than by such admissions."
The Proviso to this Section specifically gives a discretion to the Court
to require the facts admitted to be proved otherwise than by such admission.
The Proviso corresponds to the Proviso to Rule 5(1) Order 8 CPC.
In view of the above, it is clear that the Court, at no stage, can act
blindly or mechanically. While enabling the Court to pronounce judgment in
a situation where no Written Statement is filed by the defendant, the Court
has also been given the discretion to pass such order as it may think fit as
D
an alternative. This is also the position under Order 8 Rule l 0 CPC where the E
Court can either pronounce judgment against the defendant or pass such
order as it may think fit.
Having regard to the provisions of Order 12 Rule 6; Order 5 Rule 8,
specially Proviso thereto; as also Section 58 of the Evidence Act, this Court
in Razia Begum's case (supra) observed as under :
F
"In this connection, our attention was called to the provisions of R.6
of 0.12 of the Code of Civil Procedure, which lays down that, upon
such admissions as have been made by the Prince in this case, the
Court would give judgment for the plaintiff. These provisions have
got to be read along with R. 5 of 0.8 of the Code with particular G
reference to the proviso which is in these terms:
"Provided that the Court may in its discretion require any fact
so admitted to be proved otherwise than by such admission".
The proviso quoted above, is identical with the proviso to S. 58 of H
272
A
B
c
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
the Evidence Act, which lays down that facts admitted need not be
proved. Reading all these provisions together, it is manifest that the
Court is not bound to grant the declarations prayed for, even though
the facts alleged in the plaint, may have been admitted."
The Court further observed:-
"Hence, ifthe Court, in all the circumstances of a particular case, takes
the view that it would insist upon the burden of the issue being fully
discharged, and ifthe Court, in pursuance of the terms ofS. 42 of the
Specific Relief Act, decides, in a given case, to insist upon clear proof
of even admitted facts, the Court could not be said to have exceeded
its judicial powers."
As pointed out earlier, the Court has not to act blindly upon the
admission of a fact made by the defendant in his Written Statement nor the
Court should proceed to pass judgment blindly merely because a Written
Statement has not been filed by the defendant traversing the facts st!t out by
D the plaintiff in the plaint filed in the Court. In a case, specially where a Written
Statement has not been filed by the defendant, the Court should be a little
cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment
against the defendant it must see to it that even if the facts set out in the
plaint are treated to have been admitted, a judgment could possibly be passed
E in favour of the plaintiff without requiring him to prove any fact mentioned
in the plaint. It is a matter of Court's satisfaction and, therefore, only on being
satisfied that there is no fact which need be proved on account of deemed
admission, the Court can conveniently pass a judgment against the defendant
who has not filed the Written Statement. But ifthe plaint itself indicates that
there are disputed questions of fact involved in the case regarding which two
F
different versions are set out in the plaint itself, it would not be safe for the
Court to pass a judgment without requiring the plaintiff to prove the facts so
as to settle the factual controversy. Such a case would be covered by the
expression "the Court may, in its discretion, require any such fact to be
proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make
G such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.
Applying these tests to the instant case, it will be noticed that in a suit
for specific performance it is mandatorily required by Section 16 of the
Specific Relief Act to plead readiness and willingness of the plaintiff to
perform his part of the contract. The Court, before acting under Order 8 Rule
H 10 has to scrutinise the facts set out in the plaint to find olU_whether all the
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.]
273
requirements, specially those indicated in Section 16 of the Specific Relief A
Act, have been complied with or not. Readiness and willingness of the
plaintiff to perform his part of the contract is a condition precedent to the
passing of a decree for specific performance in favour of the plaintiff.
We may now examine the facts of this case.
B
A copy of the plaint which is on record indicates that respondent No. I
had entered into an agreement on 6.8.1992 with respondent No.2 as also the
present appellants for the sale of property bearing No.W-118, Greater Kailash,
Part-II, New Delhi, on the first floor (rear portion consisting of one drawing
room, two bed rooms, one kitchen, two bath rooms and one servant quarter
with toilet along with impartible and indivisible proportionate rights in the C
land underneath) for a sum of Rs. 7 lakhs out of which a sum of Rs. 4 lakhs
was paid at the time of the signing of the agreement with the stipulation that
a further sum of Rs. 2.25 lakhs would be paid by respondent No.1 on receipt
of permission from the Income Tax Department and Rs.75,000 would be paid
at the time of the registration of sale deed. It was further pleaded in the plaint D
that possession of the flat was delivered to respondent No. I in pursuance of
the agreement dated 6th of August, 1992 in which it was further set out that
all expenses for execution and registration of the sale deed would be borne
exclusively by respondent No. I. The plaint further recites that till February
19, 1996, respondent No. I was not informed by any of the defendants about
permission, if any, taken from the Income Tax Department in spite of several E
requests made by him from time to time. It was also pleaded as follows:
"Even the permission under the Income Tax Act to enable the agreement
to sell and execution of the sale deed in favour of the Plaintiff was
to be obtained not only by Defendant No. I but also by Defendant F
Nos. 2 and 3 as mentioned in Clause 12 of the agreement to sell."
In respect of the permission of the Income Tax Department, referred to
above, para I2 of the plaint mentioned as follows:
"That vide letter/reply dated I st of March 1996, the Defendant No. I G
had replied to the notice of the Plaintiff dated 13th February 1996,
wherein a vague and evasive denial was made by the Defendant No. I
to the contents of the notice dated 13th February 1996 of the Plaintiff.
The Plaintiff was informed for the first time about the income tax
certificate alongwith the said reply by Defendant No. I which was
obtained by the Defendant No. I.