Order 8 Rule 10 CPC | Suit Can't Be Decreed Merely On Defendant's Failure To File Written Statement If Plaintiff's Case Isn't Proved : Supreme Court

Setting aside a decree passed in a civil suit, the Supreme Court held that a Court cannot pronounce judgment in a suit merely on the default of the defendant to file a written statement if the plaintiff doesn't prove his case.

The Bench of Justices BR Gavai, Dipankar Datta and Aravind Kumar observed that the failure on the part of the defendant to file the written statement within the time permitted by the court would not tantamount to pronouncement of judgment against the defendant, when it is incumbent upon the plaintiff to prove the case by adducing evidence. 

"...mere failure or neglect of a defendant to file a written statement controverting the pleaded facts in the plaint, in all cases, may not entitle him to a judgment in his favour unless by adducing evidence he proves his case/claim," the Court stated.

The Court referred to Order 8, Rule 10 of the Civil Procedure Code, which states as follows :

"Where any party from whom a written statement is required under rule 1 or 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".

The Court explained that Order 8 Rule 10 provided two alternatives- either to pronounce judgment against the defendant defaulting to file the written statement or to pass such other order as deemed fit. The first alternative (passing judgment) is not always mandatory.

To this effect the, the judgment authored by Justice Datta observed as follows:

"The verb 'shall' in Rule 10 [although substituted for the verb 'may' by the Amendment Act of 1976] does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which 'shall' equally applies would be rendered otiose"

“Indeed, in a given case, the defendant defaults in filing written statement and the first alternative were the only course to be adopted, it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the court. Generally, in order to be entitled to a judgment in his favour, what is required of a plaintiff is to prove his pleaded case by adducing evidence.”

In the instant case, the trial court had pronounced the judgment against one-Samiullah upon his failure to submit the written statement within the time fixed for such submission. However, expressing its displeasure, the Supreme Court while relying on its judgment passed in Balraj Taneja v. Sunil Madan noted that only on being satisfied that there is no fact which need to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts.

According to Court, Rule 10, Order 8 of CPC is permissive in nature granting two options to the court, and if in every case a judgment is pronounced against a person in response to non-submission of the written statement then it would render the second part of Rule 10 i.e., “or make such order in relation to the suit as it thinks fit” otiose. Thus, the court noted that it must be remembered that a plaint in a suit is not akin to a writ petition where not only the facts are to be pleaded but also the evidence in support of the pleaded facts is to be annexed, whereafter, upon exchange of affidavits, such petition can be decided on affidavit evidence. Since facts are required to be pleaded in a plaint and not the evidence, which can be adduced in course of examination of witnesses, mere failure or neglect of a defendant to file a written statement controverting the pleaded facts in the plaint, in all cases, may not entitle him to a judgment in his favour unless by adducing evidence he proves his case/claim.

Thus, accordingly, the court made it clear that provision of Rule 10 of Order VIII, CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, however, if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts.

Order VIII Rule 10 to be invoked with care

The Court also noted that in the instant case, there were more than one defendants and the passing of the judgment merely because one of them did not file the written statement gave rise to complications.

"..It is to avoid such a situation of contradictory/inconsistent decrees that power under Rule 10 of Order VIII ought to be invoked with care, caution, and circumspection, only when none of several defendants file their written statements and upon the taking of evidence from the side of the plaintiff, if deemed necessary, the entire suit could be decided. As in the present case, where even one of several defendants had filed a written statement, it would be a judicious exercise of discretion for the court to opt for the second alternative in Rule 10 of Order VIII, CPC unless, of course, extraordinary circumstances exist warranting recourse to the first alternative," the Court explained.

Case Title: ASMA LATEEF & ANR. V. SHABBIR AHMAD & ORS.

Citation : 2024 LiveLaw (SC) 39

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