Case Note & Summary
The case arises from a suit filed by the respondent (original plaintiff) against the appellants (original defendants) seeking specific performance of an agreement dated 10 December 1984 for the allotment of office premises, and alternatively, damages. The plaintiff alleged that the entire consideration of Rs.2,06,850/- was paid except the last installment of Rs.20,685/- payable on delivery of possession. The first defendant purportedly cancelled the booking, and later created rights in favor of the second defendant. The defendants failed to file a written statement despite service and multiple opportunities. They filed a Notice of Motion on 10 March 2010 seeking condonation of delay of 5769 days, which was rejected by the learned Single Judge on 30 March 2010. The defendants appealed that order, and the appeal was admitted. Subsequently, on 18 June 2010, the learned Single Judge passed a decree under Order 8 Rule 5(2) and Rule 10 CPC, decreeing the suit in terms of prayer clauses (a), (a)(i), (a)(ii), (b), (c), and (h). The appellants challenged this decree in the present appeal. The Division Bench held that the learned Single Judge had correctly exercised discretion under Order 8 Rule 10 CPC, as the defendants had ample opportunity to file a written statement but failed to do so. The pendency of the appeal against the rejection of the condonation application did not bar the passing of the decree, as no stay was granted. The appeal was dismissed.
Headnote
A) Civil Procedure - Decree for Want of Written Statement - Order 8 Rule 5(2) and Rule 10 CPC - Suit for specific performance - Defendants failed to file written statement despite service and repeated opportunities - Learned Single Judge decreed suit in terms of plaint - Held that the court has discretion to pass judgment against defendant who fails to file written statement, and such discretion was properly exercised given the inordinate delay and lack of sufficient cause (Paras 1-6).
B) Civil Procedure - Condonation of Delay - Limitation - Application for condonation of 5769 days delay in filing written statement rejected - Defendants' appeal against rejection is pending - Held that the appeal does not preclude the court from passing a decree under Order 8 Rule 10 CPC, as the application for condonation was already rejected and no stay was granted (Paras 5-6).
Issue of Consideration
Whether the learned Single Judge was justified in passing a decree under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908, for want of written statement, and whether the appeal against the rejection of the application for condonation of delay of 5769 days in filing the written statement is maintainable.
Final Decision
The appeal is dismissed. The decree passed by the learned Single Judge under Order 8 Rule 5(2) and Rule 10 CPC is upheld.
Law Points
- Order 8 Rule 5(2) CPC
- Order 8 Rule 10 CPC
- Code of Civil Procedure
- 1908
- specific performance
- failure to file written statement
- decree without trial
Case Details
2012 LawText (BOM) (08) 54
Appeal No. 456 of 2012 in Suit No. 1285 of 1994
Dr. D.Y. Chandrachud, R.D. Dhanuka
Mr. P.N. Singh with Ms. Shital Ranakhambe i/by M/s. Vyas Bhalawal for Appellants; Mr. Sachin Joshi for Respondent
Kailash Nath & Associates and M/s. Kalicharan & Sons
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Nature of Litigation
Appeal against decree passed under Order 8 Rule 5(2) and Rule 10 CPC for want of written statement in a suit for specific performance of an agreement for sale of immovable property.
Remedy Sought
The appellants (original defendants) sought to set aside the decree dated 18 June 2010 passed by the learned Single Judge.
Filing Reason
The appellants failed to file a written statement in the suit despite service and repeated opportunities, leading to the decree.
Previous Decisions
The learned Single Judge rejected the defendants' Notice of Motion for condonation of delay of 5769 days in filing written statement on 30 March 2010. The appeal against that order was admitted but no stay was granted. Subsequently, on 18 June 2010, the suit was decreed under Order 8 Rule 5(2) and Rule 10 CPC.
Issues
Whether the learned Single Judge was justified in passing a decree under Order 8 Rule 5(2) and Rule 10 CPC for want of written statement.
Whether the pendency of the appeal against the rejection of the condonation application precluded the passing of the decree.
Submissions/Arguments
Appellants argued that the written statement was ready on the first date of hearing and that they had filed a Notice of Motion for condonation of delay, which was rejected, and the appeal against that rejection was pending.
Respondent argued that the defendants had ample opportunity to file written statement but failed, and the decree was correctly passed.
Ratio Decidendi
Under Order 8 Rule 10 CPC, the court has discretion to pass a decree against a defendant who fails to file a written statement within the prescribed time. The discretion was properly exercised as the defendants had sufficient opportunity and the delay was inordinate. The pendency of an appeal against the rejection of a condonation application does not bar the court from passing a decree under Order 8 Rule 10 CPC, especially when no stay was granted.
Judgment Excerpts
The Appellants challenge the order of the learned Single Judge dated 18 June 2010 passing a decree against the Appellants under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908.
It is common ground that neither of the Defendants had filed a written statement in the said suit filed by the Plaintiff.
Procedural History
Suit No. 1285 of 1994 filed by respondent (plaintiff) for specific performance. Defendants failed to file written statement. On 10 March 2010, defendants filed Notice of Motion for condonation of delay of 5769 days. On 30 March 2010, learned Single Judge rejected the Notice of Motion. Defendants appealed (Appeal No. 456 of 2012) against that order, which was admitted. On 18 June 2010, learned Single Judge passed decree under Order 8 Rule 5(2) and Rule 10 CPC. Present appeal challenges the decree.
Acts & Sections
- Code of Civil Procedure, 1908: Order 8 Rule 5(2), Order 8 Rule 10
