As per the Code of Civil Procedure, whenever a suit is filed, the Court issues summon to the defendant to appear before the Court and answer the claim of the plaintiff by way of filing a written statement within a stipulated period provided under Order 8 Rule 1 of Civil Procedure Code (hereafter referred to as CPC)
Thereafter, what is expected of the defendant that he files the written statement as his defence within a reasonable time and in the event of his failure to file the written statement even after being afforded reasonable opportunity, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit. Rule 10 of Order 8 is reproduced herein below;
10. Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement is required under rule 1 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 to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up:Order 8 Rule 10 of CPC
Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.
Lets understand the provision in light of the judgments discussed herein below:
The Supreme Court in Balraj Taneja & Anr Vs Sunil Madan & Anr has examined the provisions contained in Order 8 of CPC and observed thus;
“……where a party from whom a Written Statement is required either under Rule 1 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, if the Written Statement has not been filed by the defendant, it will 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 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. 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 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 as it thinks fit.
Whether Court is required to pass judgment on failure of the defendant to file written statement or may proceed in the case and ask the plaintiff to prove his case by way of evidence.
In Balraj Taneja’s judgment, the Court has answered this query which reads as;
“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 set out by 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 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 if the plaint itself indicates that there are disputed questions of fact 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 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 such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8.”
Whether defendant can take part in the proceedings without filing written statement.
The Patna High Court in case of Siai Sinha v. Shivadhari Sinha AIR 1972 Pat 8 has observed that
“The position of law in such a case is that a defendant, even without filing a written statement, can take part in the hearing of the suit. He may cross-examine the plaintiffs witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on questions of fact which have not been pleaded by him by filing any written, statement. It should be further made clear that if a defendant files a written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff.”
(See for reference a Bench decision of the Calcutta High Court in J. B. Ross and Co. v. C. R. Scriven, ILR 43 Cal 1001 :(AIR 1917 Cal 269 (2)).”
In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, the Supreme Court has observed;
“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 (Order 5, Rule 5). In either event Order 8, Rule 1 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 think fit” (O. 8 Rule 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.
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 Order 9, Rule 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 Order 8, Rule 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 on 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.