Order 10

Order Details: COPY OF ORDER
Pdf Text: 20 CS SCJ 399/23
ASSOCIATES ELECTRODES Vs. MADHU LOGISTIC
27.07.2024
Present : Sh. Yogesh Latha, Ld. Counsel for the plaintiff.
None for defendant.
Perusal of record shows that vod 15.04.2024 the
matter was proceeded exparte and on the same date Sh. Pradeep
Bhardwaj, Ld. Counsel for the defendant had appeared and sought
time to file WS. On LDOH adjournment was sought to file proper
application, however, till date neither application nor WS has been
filed.
Ld. Counsel for the plaintiff has drawn attention of
the court to order dated 30.11.2023 wherein which it was observed
by the Ld. Predecessor of the court that stipulated period to file WS
has expired and the matter was proceeded exparte. VOD
21.02.2024 Ld. Counsel for the defendant had appeared. However,
no WS was filed.
The matter is already exparte and no application for
recall the order has been filed.
At this stage, ld. counsel for plaintiff has submitted
that his application under Order 8 Rule 10 CPC is pending.
Arguments heard.
List the matter for orders at 4:00 p.m.
(Charan Salwan)
CJ-03 : Central : THC : Delhi.
27.07.2024
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2.
At 12:30 p.m.
At this stage, Sh. Prateek Bhardwaj, Ld. Counsel for
the defendant has appeared. He has been apprised about the court
proceedings.
List for purpose fixed i.e. orders at 4:00 p.m.
(Charan Salwan)
CJ-03 : Central : THC : Delhi.
27.07.2024
At 4:00 p.m.
Present: None.
Matter is fixed for orders on application under Order
8 Rule 10 CPC pressed on behalf of the plaintiff seeking
pronouncement of judgment. In the present case, it has been
argued on behalf of the plaintiff that since the defendant despite
service of summons and despite appearing in court and seeking
adjournment for filing WS, no WS has been filed and since the
defendant is proceeded exparte, therefore, the plaintiff is entitled
to judgment under Order 8 Rule 10 CPC.
I have heard the arguments on behalf of plaintiff.
Bare perusal of Order 8 Rule 10 CPC shows that the
same gives a discretion either to pronounce judgment against the
defendant or “make such order in relation to the suit as it thinks
fit”. Order 8 Rule 5 (2) CPC provides that if WS is not filed, court
may either pronounce judgment on the basis of the facts contained
in plaint or also require such fact to be proved.
Here, it would be beneficial to refer to judgment of
the Hon’ble Supreme Court in
Balraj Taneja v. Sunil Madan,
(1999) 8 SCC 396, wherein it was held that “
it is clear that the
court, at no stage, can act blindly or mechanically. While enabling
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3.
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.”
It is thus clear that when the WS is not filed, it is not
obligatory on the court to pronounce judgment, rather the
discretion is vested with the court to require the facts contained in
the plaint to be proved with evidence.
Provision under
Order 8 Rule 10 CPC cannot be
invoked to penalise the defendant for non-filing of the written
statement. Reliance in this regard is placed on the judgment of
C.N
Ramappa Gowda v.
C.C. Chandregowda, (2012) 5 SCC 265.
In such circumstances, in opinion of this court, justice
and fairness warrants that the plaintiff be required to prove its case
by leading evidence.
In view of the forgoing discussion, I do not deem it fit
to pronounce judgment at this stage under Order 8 Rule 10 CPC.
Matter shall now proceed for Ex-parte PE.
List the matter for ex-parte PE on 11.09.2024.
(Charan Salwan)
CJ-03 : Central : THC : Delhi.
27.07.2024
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