Judgment:
ORDER
Sanjay Misra, J.
1. Heard Sri P. K. Misra holding brief of Sri H.S.Sahai, learned Counsel for the petitioner and Sri Mohd. Abid Ali, learned Counsel for the respondent No. 3. With the consent of both the parties this writ petition is being heard and finally decided today itself.
2. This writ petition is directed against the judgment and order dated 27-1-1998 passed by the Judge, Small Causes Court, Sitapur in SCC Suit No. 4 of 1993 as also against the Revisional Order dated 22-8-1998 passed by the Special Additional District Judge, Sitapur in SCC Revision No. 7 of 1998.
3. According to learned Counsel for the petitioner the impugned orders are liable to be set aside for the reason that the Court could not proceed under Order VIII, Rule 10 CPC in the facts and circumstances and ought to have granted adjournment in view of the provisions of Order XVII, Rules 1 and 3 CPC to enable the petitioner to file his written statement. The submission is that the decree of eviction and arrears of rent is illegal and could not have been passed under the provisions of Order VIII, Rule 10 CPC. Since the plaintiff had not filed any evidence in proof of the averments made in the plaint.
4. Learned Counsel for the petitioner has placed reliance upon a decision of the Hon'ble Supreme Court in the case of Ashok Kumar and Ors. v. Rishi Ram and Ors. reported in : AIR 2002 SC 2520 : 2002 All LJ 1818 to state that the first date of hearing cannot be a date fixed for filing a written statement and therefore, the written statement having not been filed, the suit had not reached at the stage of final hearing and hence, the impugned judgments are liable to be set aside.
5. He also places reliance upon a decision of the Hon'ble Supreme Court in the case of Balraj Taneja and Anr. v. Sunil Madan and Anr. reported in : (1998) 8 SCC 396 : AIR 1999 SC 3381 and has referred to on paragraph 29 of the judgment, which is quoted hereunder:
29. 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 should the court 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 the 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.
6. It will be seen from the aforesaid decision in their application to the facts and circumstances of the present case that there are two issues which require to be considered while adjudging the illegality of the impugned orders; the first is whether the Court was satisfied with the sufficient reasons given by the petitioner for adjournment and had to postpone the proceedings under Order 17, Rule 1 CPC and the second is whether while proceeding to decide the suit under Order 8, Rule 10 CPC the Court was required to exercise its discretion and require the plaintiff to prove the averments made in the plaint by adducing evidence.
7. In the present case insofar as the application for adjournment is concerned the Court was not satisfied with the reason given therein for non-filing of the written statement, for the very same reason the Court had earlier imposed costs while granting adjournment on 3 earlier occasions for filing the written statement and the costs had not been deposited/paid by the petitioner. Order 17, Rule 1 CPC enables the court to grant adjournment if sufficient cause is shown. The proviso provides that no such adjournment shall be granted more than three times. The provisions of the Code are procedural in nature hence the Court in its inherent power can grant further adjournment for valid reasons. But refusing further adjournment cannot entitle a litigant to say that the refusal is illegal particularly when while refusing further adjournment the Court has recorded reasons for the same. In this case the Court found that on three previous occasions adjournment had been granted for filing written statement on payment of costs. Neither the written statement was filed nor the costs imposed were paid. In Rule 2 of Order 17 CPC the Court is empowered to impose costs for granting adjournment and Clauses (c) and (d) relate to circumstances when adjournment is sought on the ground of counsels inability to appear. Therefore, the refusal to adjourn the suit further at the instance of a defendant who had not filed his written statement nor paid the costs cannot be held to be illegal particularly when prior to the three adjournments the court had allowed the application of the defendant and had set aside the ex parte decree.
8. Rule 3 of Order 17 CPC enables the Court to proceed notwithstanding the failure of the parties to produce evidence. It contemplates failure of a party 'to perform any other act necessary for further progress of the suit.' This provision clearly includes failure of a party to file written statement and failure to pay the costs imposed due to which further progress of the suit is held up. In such a situation the Court can proceed to decide the suit forthwith or on any date to which the suit is adjourned in one of the modes under Order 9 CPC or make such other Order as it thinks fit.
9. The suit was directed to proceed ex parte and an ex parte decree was passed on 12-9-1996. This ex parte decree was recalled and time was given to him to file written statement. On 16-10-1997 a cost of Rs. 100/ -was imposed, on 13-11-1997, a cost of Rs. 250/- was imposed and on 8-1-1998 a cost of Rs. 50/- was imposed for granting further time. Yet another application for adjournment was moved which was rejected by the Court and the case was directed to proceed and was decided under Order 8, Rule 10 CPC on 27-1-1998. From these facts it cannot be held that the Court was required to grant adjournment repeatedly when it was not satisfied with the reason given for further adjournment.
10. The second issue raised is regarding exercise of discretion by the Court under Order 8, Rule 10 CPC. Under Order 8, Rule 10 CPC the Court cannot pass a judgment in favour of the defendant, therefore, when the provisions of Order 8, Rule 10 CPC were applied in the present case, the judgment was to be against the defendant. Order 8, Rule 5 CPC relates to denied of facts by the defendant. If the facts averred in the plaint are not specifically denied or even not denied by necessary implication, or just not admitted the Court may in its discretion require any such fact so admitted to be proved otherwise than by such admission. Clause (2) contemplates a situation when the defendant has not filed a pleading. The Court can pronounce judgment on the basis of the facts contained in the plaint or it may in its discretion require such fact to be proved. On the other hand Order 8, Rule 10 CPC is the procedure when the party fails to present written statement. The Court can then make an order as it thinks fit because non-filing of written statement and proceeding under Rule 10 CPC would be akin to a defence struck out. The requirement under this rule would be for the Court to see that even if the facts detailed in the plaint are deemed to be admitted a judgment can be passed against the defendant without any proof of the facts contained in the plaint. If the facts in the plaint itself disclose a factual controversy then the Court has to proceed cautiously and exercise its discretion to require the plaintiff to prove such factual controversy. Therefore, the scheme under Rule 5 and Rule 10 of Order 8 CPC may both require the Court to exercise its discretion but such discretion is on totally different circumstances. In Rule 5 there is a deemed admission and the Court may exercise its discretion but in Rule 10 there is no pleading in denial and the Court shall pronounce judgment. Hence the provisions of Rule 5 of Order 8 CPC cannot be applied when the Court is proceeding under Order 8, Rule 10 CPC.
11. Learned Counsel for the petitioner has made another submission to state that earlier the suit was decreed ex parte and upon an application for recall made by the petitioner the ex parte decree was recalled upon full compliance made by the petitioner of the provisions of Section 17 of the Small Causes Court Act. He therefore, states that in view of the compliance of Section 17 of the Act the petitioner was entitled to be given benefit of Section 20(4) of the U.P. Act No. 13 of 1972. Such benefit after compliance of Section 17 of the Act is available to the petitioner only with respect to an ex parte decree of eviction or a decree of eviction when the Court is considering an issue of default in payment of rent or arrears of rent. In the present case it will be seen that the compliance of Section 17 of the Small Causes Court Act was made and the ex parte decree dated 12-9-1996 was recalled. It was after the recall order that the defendant-petitioner failed to file his written statement inspite of various opportunities given by the court and inspite of costs imposed as a condition to accept the written statement. Therefore, the benefit of deposit under Section 17 of the Small Causes Court Act was not to be considered at this stage when there was a failure on the part of the petitioner to perform the acts necessary for further progress of the suit. From the said circumstances it is quite clear that the petitioner was not interested for getting the suit decided and was deliberately avoiding hearing of the suit. The conduct as found by the revisional court is to the same effect.
12. For the aforesaid reasons, the find: ings in the judgment of the Courts below under Order 8, Rule 10 CPC are valid and in accordance with law. The Court has referred to the evidence filed by the plaintiff in proof of the contents of the plaint and hence has not required him to lead further evidence to prove the facts averred in the plaint. A perusal of the plaint also indicates that there are no factual issues, as alleged therein, where it can be found that there is a factual controversy in the facts as stated. The averments in the plaint do not disclose two different versions set out therein and hence the Court was not required to compel the plaintiff to prove the facts to settle the factual controversy which was within the discretion of the Court by virtue of the expression 'may make such order in relation to the suit as it thinks fit' used in Rule 10 of Order 8 CPC. There is no illegality in the impugned judgments and they do not suffer any error in law. The writ petition stands dismissed. Interim order, if any, stands vacated.
13. No order is passed as to costs.