Interim Order 7

Order Details: COPY OF JUDICIAL PROCEEDINGS
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C.S. No. 195/23
Sushil Kumar Jain
Vs.
Kaymes Cooperative Group Housing Society Ltd. & Ors.
11/12/2023
Pr: None for the parties.
ORDER
1. Vide this order, I shall dispose of the application of the
plaintiff filed under Order 8 Rule 10 CPC. At the outset, the
backdrop of the instant case is narrated in a nutshell. The
instant case was filed by the plaintiff on 03/03/2023 where
after the summons were issued and served upon the
defendants on 10/03/2023 and 23/03/2023 respectively. Vide
order dated 13/07/2023, the defendants were given last
opportunity to file the WS. The defendants thereafter, on
13/07/2023 itself, moved an application under Order 7 Rule
11 CPC. Subsequently an application under Order 8 Rule 10
CPC was moved on behalf of the plaintiff on 18/09/2023.
2. Order dated 16/10/2023 of the Hon’ble High Court of
Delhi has been received by this Court whereby this court has
been directed to adjudicate the application of the plaintiff
filed under Order 8 Rule 10 CPC within a week from
04/12/2023.
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3. Reply to the application under Order 8 Rule 10 CPC was
filed by the defendants on 04/12/23 and the arguments were
accordingly heard on the very same date.
4. It is the stance of the plaintiff that the defendants have
been served on 23/03/2023 and the defendants have
deliberately chosen not to appear before the court or to file
the WS. It is the averment of the Ld. Counsel for the plaintiff
that since the WS has not been filed by the defendants till
date, provisions under Order 8 Rule 10 CPC be invoked and a
decree against the defendants be passed.
5. Ld. Counsel for the defendants opposed the application of
the plaintiff on the grounds that an application under Order 7
Rule 11 CPC has been filed on behalf of the defendants on
13/07/2023 which is pending disposal, hence the defendants
can not be compelled to file the WS. He has relied upon the
judgment titled as R.K. Roja Vs. U.S. Rayudu & Anr.
(2016) 14 SCC 275 of the Hon’ble Apex Court of India. He
submits that since the application U/o 7 Rule 11 CPC is
pending, the trial can’t be proceeded with and the right of the
defendants to file the WS can not be closed.
6. Arguments were heard and record has been perused.
7. Before proceeding further, Order 8 Rule 1 CPC and Order
8 Rule 10 CPC are reproduced hereinunder:
“1. Written statement – The defendant shall, within thirty
days from the date of service of summons on him, present a
written statement of his defence:
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Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be al
lowed to file the same on such other day, as may be specified
by the Court, for reasons to be recorded in writing, but which
shall not be later then ninety days from the date of service of
summons”.
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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”
8. At this stage, reliance is placed on the judgment titled as
M/s SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar In
frastructure Private Limited & Ors. (2019) 12 SCC 210 of the
Hon’ble Apex Court wherein it was held:
“ 14) Learned counsel appearing for the respondents also re
lied upon R.K. Roja vs. U.S. Rayudu and Another (supra)
for the proposition that the defendant is entitled to file an
application for rejection of plaint under Order VII Rule
11 before filing his written statement. We are of the view
that this judgment cannot be read in the manner sought
for by the learned counsel appearing on behalf of the re
spondents. Order VII Rule 11 proceedings are indepen
dent of the filing of a written statement once a suit has
been filed. In fact, para 6 of that judgment records “How
ever, we may hasten to add that the liberty to file an appli
cation for rejection under Order 7 Rule 11 CPC cannot be
made as a ruse for retrieving the lost opportunity to file
the written statement”. “
9. I may further gainfully refer to the judgment titled as Smt.
Rama @ Rita Devi v Ashwani Kumar & Ors. Civil Misc.
Petition Main (Original) No. 33 of 2022 decided on
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05/03/2022 of the Hon'ble High Court of Himachal Pradesh
wherein it was held:
“Reverting back to the facts of the present case, the de
fendants even after entering appearance in the matter two
years ago, have still not filed their written statement. No
doubt, application under Order 7 Rule 11 CPC can be
filed at any stage and this application has to be adjudi
cated first before proceeding with the trial. Nonetheless
Order 7 Rule 11 CPC proceedings have been held to be
independent of filing of written statement. There is no em
bargo upon the defendants to file written statement before
adjudication of Order 7 Rule 11 CPC application. Pen
dency of Order 7 Rule 11 CPC application filed two years
later to the date of appearance of defendants in the civil
suit cannot be taken as a ruse for not filing the written
statement. Provisions of Order 8 Rule 1 CPC cannot be
simply ignored or else under the guise of moving frivo
lous Order 7 Rule 11 CPC applications, the defendants
can always protract the trials, thereby defeating not only
the object of the provisions, but also the cause of justice.
Also as per the impugned order, it was the defendants,
who prayed for more time to file written statement.
Learned Trial Court accordingly granted them one last
opportunity. There is nothing wrong in the approach of
the learned Trial Court.”
10. Analyzing the facts of the instant case in light of the above
quoted judgments, it is noticed that all the three defendants
were served on 23/03/2023 and no written statement was
filed by the defendants as per the mandate of Order 8 Rule 1
CPC. It is further pertinent to note that on the next date of
hearing also i.e. on 13/07/2023 no WS was filed by the defen
dants instead an application under Order 7 Rule 11 CPC was
filed.
Subsequently on 18/09/2023, an application under Order 8
Rule 10 CPC was moved on behalf of the plaintiff, reply
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whereof was filed by the Ld. Counsel for the defendants on
04/12/2023.
It is emphasized that no Written statement has been filed
by the defendants till date despite being aware of the order
dated 16/10/2023 of the Hon’ble High Court of Delhi
whereby direction was given to adjudicate the application
U/o 8 Rule 10 CPC within a week from 04/12/2023 in light
of the fact that defendants had elected not to file their WS
within the statutory period of 30 days.
11. As has been held by the Hon’ble Apex Court in the above
quoted judgment in case titled as ‘M/s SCG Contracts India
Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Private Limited
& Ors’, the provision of Order 7 Rule 11 CPC is independent
of filing of the WS, thus, the defendants were enjoined to file
the WS within the period of limitation. At this stage, strength
is drawn from the judgment of the Hon’ble Apex Court titled
as R.K. Roja Vs. U.S. Rayudu & Anr. (2016) 14 SCC 275,
relied upon by the Ld. Counsel for the defendants
himself,wherein it was also held:
“However, we may hasten to add that the liberty to file an
application for rejection under Order VII Rule 11 of the
CPC cannot be made as a ruse for retrieving the lost op
portunity to file the written statement. Apparently, in the
present case, it is seen that AnnexureP/4Affidavit dated
15.03.2015, with a prayer … “to dismiss the present Election
Petition under Order VII Rule 11 of the CPC…”, was filed
within thirty days of the receipt of the summons in the
Election Petition. However, the court was not inclined to
consider the same in the absence of a formal application,
and thus, AnnexureP/5Application No. E.A. No. 222 of
2016 was filed on 22.02.2016 leading to the impugned
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order, posting the application for consideration at the time
of final hearing. The procedure adopted by the court is not
warranted under law. Without disposing of an application
under Order VII Rule 11 of the CPC, the court cannot pro
ceed with the trial. In that view of the matter, the im
pugned order is only to be set aside. Ordered accordingly.”
12. It is additionally to be highlighted that in the case at hand,
the application under Order 7 Rule 11 CPC was moved much
beyond the period of 90 days. The application U/o 7 Rule 11
CPC, thus can not be used as a tool by the defendants to bypass
the provisions of Order 8 Rule 1 CPC. In view of the above
discussion and as per the mandate of law, the opportunity of the
defendants to file the WS stands closed.
13. Moving ahead, the plaintiff by way of the present
application also prays for a decree since no WS on behalf of the
defendants has been filed. In this regard, reliance is placed on the
judgment titled as Balraj Taneja & Anr. Vs. Sunil Madan & Anr.,
(1999) 8 SCC 396 of the Hon’ble Apex Court of India, wherein it
is held:
“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 defen
dant, the Court should be a little cautious in proceeding un
der 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 judg
ment could possibly be passed in favour of the plaintiff with
out requiring him to prove any fact mentioned in the plaint. It
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is a matter of Court's satisfaction and, therefore, only on be
ing satisfied that there is no fact which need be proved on ac
count of deemed admission, the Court can conveniently pass
a judgment against the defendant who has not filed the Writ
ten 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 ex
pression "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.”
14. In the present case, the plaintiff is seeking the relief of ren
dition of accounts and permanent injunction against a coopera
tive society. Further, an application under Order 7 Rule 11 CPC
has already been moved by the defendants. In such a scenario, it
is opined that even though no WS on behalf of the defendants has
been filed, a judgment at this stage cannot be passed and it is
deemed appropriate that the suit is proceeded further with and
application under Order 7 Rule 11 CPC is decided. The applica
tion under Order 8 Rule 10 CPC is accordingly disposed of.
It can be observed that the reply to the application U/o 7
Rule 11 CPC has not been filed by the plaintiff till date. Reply, if
any, be filed by NDOH with advance copy to the opposite party.
Now to come up for arguments on the application U/o 7
Rule 11 CPC on 06/03/2024.
(Prigya Gupta)
ASCJ-cum-JSCC-cum-Guardian Judge,
East, KKD Courts, Delhi/11/12/2023
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