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PETITIONER:

BALRAJ TANEJA & ANR.

Vs.

RESPONDENT:

SUNIL MADAN & ANR.

DATE OF JUDGMENT: 08/09/1999

BENCH:

D.P.Mohapatro, S.Saghir Ahmad

JUDGMENT:

S.SAGHIR AHMAD, J.

Leave granted.

Respondent No.1, Sunil Madan, filed a suit in the

Delhi High Court against the appellants and respondent No.2

for specific performance of an 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 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.

Since the written statement was still not filed, the

Court decreed the suit for specific performance in favour of

respondent No.1 under Order 8 Rule 10 C.P.C. Respondent

No.1 was directed to deposit a sum of Rs.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 review

application filed by the appellants including 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) NO.36/97) was dismissed on 29.4.1998. It is in

these circumstances that the present appeal has been filed

in this Court.

Mr. Rakesh Dwivedi, Sr. Advocate, appearing on

behalf of the appellants has contended that having regard to

the circumstances of the case, the High Court was not

justified in passing the decree against the appellants,

including respondent No.2, for specific performance merely

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on the ground that written statement was not filed by them

on the date fixed for that purpose. It is also 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 the suit was decreed under Order 8 Rule

10 C.P.C., which indicates that the attitude adopted by the

High Court in decreeing the suit under Order 8 Rule 10

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 8

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 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.1

has contended that the appellants, including respondent

No.2, had adopted dilatory tactics and their intention, from

the very beginning, was to delay the disposal of the suit so

as to harass respondent No.1 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 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

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 10 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 1 provides that the defendant shall

file a Written Statement 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, provided in Rule 5

of Order 8 that every allegation 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 :

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"Order 8 Rule 5 - Specific denial

(1) Every allegation of fact in the plaint, if not

denied specifically or 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.

(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.

(4) Whenever a judgment is pronounced under this rule,

a decree shall 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 non-filing 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

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 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, still require

such "admitted fact" to be proved otherwise than by such

admission. This is an exception to the general rule 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

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 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

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(ii) by necessary implication, or

(iii) 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 defendent, 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 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."

.lm10

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 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 1 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 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

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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 pronouced

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.

This Court, in Sangram Singh v. Election Tribunal,

Kotah & Anr. AIR 1955 SC 425 = 1955 (1) SCR 1, observed on

page 432 of the report as under :

"(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 (O.5, R.5). In either event, O.8, R.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 thinks fit." (O.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 O.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 O.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

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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 vs. Bank of Baroda and Others, 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 the latter case, the court has ample

discretion to grant more time for 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 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 cross-examine the plaintiff's

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

the plaintiff's witnesses in order to demolish their version

of the plaintiff's 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 vs. District Judge, Etah 1982 All

Rent Cases 562, the Allahabad High Court held as under :

"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 a judgment on the basis

of the plaint on the ground that no written statement has

been filed by the 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 O. VII R.10) or the Court

may in its discretion require any 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 U.P. & Anr.

vs. Dharam Singh Mahra AIR 1983 Allahabad 130.

In Smt. Sushila Jain vs. Rajasthan Financial

Corporation Jaipur, AIR 1979 Raj 215 and also in Rosario

Santana Vaz vs. Smt. Joaquina Natividate Fernandes AIR

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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 his right of defence.

There is yet another provision under which it is

possible for the Court to pronounce judgment on admission.

This is contained in Rule 6 of Order 12 which provides as

under :

"R.6 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."

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 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

being amended to clarify that oral admissions are also

covered by the rule."

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 claims pending adjudication of the disputed claims

in the suit.

In Razia Begum vs. 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 to prove the facts pleaded by him in the plaint.

Thus, 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 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 admit at the hearing, or which, before

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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 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 an alternative. This is also the position

under Order 8 Rule 10 CPC where the 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 : .lm15

"In this connection, our attention was called to the

provisions of R.6 of O.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 O.8 of the Code with particular 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 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, if the 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 if the

Court, in pursuance of the terms of S. 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 set out

by the plaintiff in the plaint filed in the Court. In a

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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.

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 10 has to scrutinise the facts set out in

the plaint to 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.

We may now examine the facts of this case.

A copy of the plaint which is on record indicates that

respondent No.1 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 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 that possession of the flat was

delivered to respondent No.1 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.1. The

plaint further recites that till February 19, 1996,

respondent No.1 was not informed by any of the defendants

about permission, if any, taken from the Income Tax

Department in spite of several requests made by him from

time to time. It was also pleaded as follows:-

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"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.1 but also by Defendant 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 12 of the plaint

mentioned as follows:-

"That vide letter/reply dated 1st of March 1996, the

Defendant No.1 had replied to the notice of the Plaintiff

dated 13th February 1996, wherein a vague and evasive denial

was made by the Defendant No.1 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.1 which

was obtained by the Defendant No.1. However, no certificate

was obtained by the Defendant Nos. 2 and 3 as was requisite

under the terms and conditions of agreement to sell dated

6th of August, 1992."

In para 16 of the plaint, it was further pleaded as

under:-

"That vide reply dated 16th March, 1996, the Plaintiff

had brought it to the notice of the Defendants that the copy

of certificate alleged to have been obtained in December

1995 was never given or sent to the Plaintiff by the

Defendants. The Plaintiff had called upon the Defendants to

send forward the original certificate obtained by them in

December 1995 to enable the Plaintiff to proceed further in

the matter. The Plaintiff had also called upon the

Defendant Nos. 2 and 3 to obtain requisite certificate

under the Income Tax Act as per terms of agreement to sell

dated 6th August 1992."

The case of respondent No.1, as set out in the plaint

itself, was that while defendants, namely, the present

appellants as also respondent No.2 maintained that they had

obtained the necessary permission from the Income Tax

Department and had sent the same to him, respondent No.1,

disputed that fact and maintained that this was not correct

and no Certificate (Permission) of the Income Tax Department

was ever sent to him by the appellants or respondent No.2.

On the own pleadings of respondent No.1, as set out in his

plaint, there was a dispute between the parties, namely,

plaintiff and defendants, whether permission from the Income

Tax Department had been obtained by the defendants (the

present appellants and respondent No.2) and sent to

plaintiff (present respondent No.1) or the said permission

was, at no time, obtained by the defendants nor had the

defendants sent it to the plaintiff (respondent No.1). This

was a vital fact which had an important bearing upon the

conduct of respondent No.1. That is to say, if it was

established that the Certificate (permission) from the

Income Tax Department had already been obtained by the

defendants and sent to him, the denial of the plaintiff

would be reflective of his attitude that he was not ready

and willing to perform his part of the contract. On the

contrary, if it was found that defendants had not obtained

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the Certificate, the question whether specific performance

could still be decreed would have immediately arisen

particularly because of the relevant provisions of the

Income Tax Act. Now, the agreement in question stipulated

that the defendants would obtain permission from the Income

Tax Department and send the same to the plaintiff whereupon

the plaintiff would pay a sum of Rs.2.25 lakhs to the

defendants and the balance amount of Rs.75,000/- would be

paid at the time of the registration of the sale deed.

Since, on the own showing of the plaintiff, as set out in

the plaint, the defendants had been asserting that they had

obtained the permission and sent the same to the plaintiff,

which was not accepted by the plaintiff, there arose between

the parties a disputed question of fact which had to be

investigated and decided particularly as it was likely to

reflect upon the conduct of the plaintiff whether he was

willing to perform his part of the contract or not. It had,

therefore, to be proved as a fact that permission of the

Income Tax Department had not been obtained by the

defendants nor had that Certificate (permission) been sent

to the plaintiff. If the said Certificate had been obtained

and sent to the plaintiff, the latter, namely, the plaintiff

should have immediately paid the stipulated amount of

Rs.2.25 lakhs to the defendants and required them to execute

the sale deed in his favour. The plaintiff, according to

facts set out in the plaint, waited till February 19, 1996

which is quite evident from the exchange of notices between

the parties which indicated the existence of a serious

dispute whether the Income Tax Certificate (permission) had

been obtained by the defendants from the Income Tax

Department and sent to the plaintiff as alleged by

defendants in their notices or it was wrong as asserted by

the plaintiff in his notices or the replies to defendants'

notices.

This suit has been decreed by the Delhi High Court by

the following judgment:-

"SUIT NO. 1124/96 & I.A. No. 4303/96.

On the 20th of September, 1996, Mr. Lalit Kumar,

learned counsel for defendant 1 to 3 sought time to file

written statement and reply. Time was granted but the

written statement and reply have not been filed. On the

22nd of January, 1997, Mr. Aseem Mohar for counsel for

defendant appeared and sought time to file vakalatnama and

written statement/reply and the matter had been adjourned to

this date. Today Mr. Kamal Mehta putting in appearance on

behalf of defandant No.2 and 3 and represents that Mr.

Rajiv Nayar has been engaged by the second and third

defendants this morning and he seeks time to file written

statement/reply.

The defendants are adopting this tactic only to

protract the proceedings and have not filed the written

statement and reply to the application inspite of sufficient

opportunity having been given.

Accordingly, the suit is decreed for specific

performance in favour of the plaintiff and against the

defendants with the directions to the plaintiff to deposit

the balance amount of Rs.3,00,000/- (Rupees Three Lakhs) in

this court within six weeks from today. If the amount is

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deposited within six weeks, it will be open for the

plaintiff to apply for the appointment of a Commissioner for

the execution of the sale deed. The defendants are also

directed to pay the cost of the suit.

February 10, 1997. Sd/- JUDGE."

A perusal of the above judgment will indicate that the

suit had been decreed only because of the failure of the

defendants in filing the written statement. This exhibits

the annoyance of the Court which is natural as no 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 the Court felt that

the case of the plaintiff was true and stood proved.

As will be evident from the facts set out above, the

plaint itself showed a serious disputed question of fact

involved between the parties with regard to the obtaining of

Certificate (permission) from the Income Tax Department and

its communication by the defendants to the plaintiff

(Respondent No. 1). Since this

question of fact was reflective of the attitude of the

plaintiff, whether he was ready and willing 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 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 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.

The agreement between the parties was entered into in

1992 and for four years the plaintiff had kept quiet and not

insisted for the execution of the sale deed in his favour.

When he did raise that question, the defendants informed him

that the certificate had already been obtained from the

Income Tax Authorities and sent to him.

Unfortunately, the High 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. Learned 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

purposes of filing Written Statement. So also, the Division

Bench did not consider any fact other than the fact that the

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defendants had been trying to prolong the proceedings by

seeking adjournments, 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 and the decree passed by the Single Judge

was affirmed.

There is yet another infirmity in the case which

relates to the "judgment" passed by the Single Judge and

upheld by the Division Bench.

"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. What a judgment should

contain is indicated in Order 20, Rule 4 (2) which says that

a judgment :

"shall contain a concise statement of the case, the

points for determination, the decision thereon and the

reasons for such decision."

It should be a self-contained document from which it

should appear as to what 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 conclusion and decreed the

suit should be reflected clearly in the judgment.

In an old case, namely, Nanhe vs. Saiyad Tasadduq

Husain (1912) 15 Oudh Cases 78, it was held that passing of

a mere decree was material irregularity within the meaning

of Section 115 of the Code and that even if the judgment was

passed on the basis of the admission made by the defendant,

other requirements which go to constitute "judgment" should

be complied with.

In Thippaiah and others vs. Kuri Obaiah, ILR 1980 (2)

Karnataka 1028, it was laid down that the Court must state

the grounds for its conclusion in the judgment and the

judgment should be in confirmity with the provisions of

Section 2(9) of the Code of Civil Procedure. In Dineshwar

Prasad Bakshi vs. Parmeshwar Prasad Sinha, AIR 1989 Patna

139, it was held that the judgment pronounced under Order 8

Rule 10 must satisfy the requirements of "judgment" as

defined in Section 2(9) of the Code.

Learned counsel for respondent No. 1 contended that

the provisions of Order 20, Rule 1 (2) would apply only to

contested cases as it is only in those cases that "the

points for determination" as mentioned in this Rule will

have to be indicated, and not in a case in which the written

statement has not been filed by the defendants and the facts

set out in the plaint are deemed to have been admitted. We

do not agree. Whether it is a case which is contested by

the defendants by filing a written statement, or a case

which proceeds 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

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conformity with the provisions of the Code or at least set

out the reasoning by which the controversy is resolved.

An attempt was made to contend that the definiton of

judgment as set out in Section 2(9) of the Code would not be

applicable to the judgment passed by the Delhi High Court in

its original jurisdiction wherein the proceedings are

regulated by the provisions of the Delhi High Court Act,

1966. It is contended that the word "judgment" used in the

Delhi High Court Act, 1966 would not take its colour from

the definition of "judgment" contained in Section 2(9) of

the Code of Civil Procedure. We do not intend to enter into

this controversy, fortunately as it is not contended that

the Code of Civil Procedure does not apply, but we cannot

refrain from expressing that even if it were so, the Delhi

High Court is not absolved of its obligation to write a

judgment as understood in common parlance. Even if the

definition were not contained in Section 2(9) or the

contents thereof were not indicated in Order 20 Rule 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 "Suit dismissed". The whole process of reasoning has to

be set out for deciding the case one way or the other. This

infirmity in the present judgment is glaring and for that

reason also the judgment cannot be sustained.

Learned counsel for respondent No. 1 then tried to

invoke our discretionary jurisdiction under Article 136 of

the Constitution and contended that on account of the

conduct of the appellants as also respondent No. 2, we

should not grant leave in this case, particularly as the

sale-deed has already been executed in his favour by the

Commissioner appointed by the High Court. It is true that

the jurisdiction under Article 136 of the Constitution is a

discretionary jurisdiction and notwithstanding that a

judgment may not be wholly correct or in accordance with

law, this Court is not bound to interfere in exercise of its

discretionary jurisdiction. But in the instant case, as we

have already seen above, it is not merely a matter of the

defendants' 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. We, therefore, allow the appeal,

set aside the judgment dated 10.2.1997 passed by the Single

Judge as also the judgment dated 29.4.1998 passed by the

Division Bench of the Delhi High Court and remand the case

back to the Delhi High Court for a fresh decision. We allow

the appellants and Respondent No. 2 to file their Written

Statement by 15th of October, 1999, with a clear stipulation

that if the Written Statement is not filed by that date, the

decree passed by the High Court shall stand.