JUDGMENT
Sunil Kumar Garg, J.
1. This is a second appeal filed by the appellant defendant against the judgment and decree dated 17.7.1981 passed by the learned Additional District Judge No. 1, Hanumangarh by which he dismissed the appeal filed by the appellant defendant and upheld the judgment and decree dated 6.2.1980 passed by the learned Additional Civil Judge, Sri Ganganagar by which the learned Addl. Civil Judge decreed the suit of the plaintiff respondent against the defendant appellant for Rs. 9133/- under Order 8 Rule 10 C.P.C.
2. It arises in the following circumstances:
Note: That it may be stated here that as per the report of the learned District Judge, Hanumangarh, the original record of this case has been weeded out and the same is not available.
3. The plaintiff respondent filed a suit in the lower court on 23.8.1979 for recovery of Rs. 7200/- as principal amount and Rs. 1944/-as interest total Rs. 9144/- on the basis of Pronote and Receipt alleged to have been executed by defendant appellant on 27.2.1978 for consideration of Rs. 7200/- in favour of respondent-plaintiff.
4. During the trial of the suit, the defendant appellant appeared first time on 30.10.1979 and sought time for filing written statement and again time was sought for filing written statement on 17.12.1979, 11.1.1980 and 28.1.1980 and the suit was again fixed for filing written statement on 6.2.1980.
5. On 6.2.1980, the learned Additional Civil Judge did not give time to the defendant appellant for filing written statement and forfeited the right of the defendant appellant for filing written and on the same day i.e. on 6.2.1980, passed the judgment and decree against the defendant appellant for Rs. 9133/- under the provisions of Order 8 Rule 10 CPC.
6. Against the judgment and decree dated 6.2.1980 passed by the learned Additional Civil Judge, the defendant appellant preferred a first appeal before the Court of Additional District Judge No. 1, Hanumangarh and the learned Additional District Judge No. 1 by his judgment and decree dated 17.7.1981 dismissed the appeal of the defendant appellant and upheld the judgment of the learned Addl. Civil Judge dated 6.2.1980.
7. Against the judgment and decree dated 17.7.1981 passed by the learned Additional District Judge No. 1., Hanumangarh, this second appeal has been filed by the defendant appellant in this Court on 15.10.1981.
8. This Court while admitting this second appeal on 22.1.1982 formulated the following substantial question of law:
(1) Whether on the facts and in the circumstances of the case, the learned Additional District Judge No. 1, Hanumangarh was not right in maintaining the judgment and decree dated February 6, 1980 passed by the Additional Civil Judge, Ganganagar in view of Order VIII, Rule 10 C.P.C?
9. During the course of the arguments, the learned Counsel for the appellant defendant raised the following two points, to substantiate the above substantial question of law:
1. That the provisions contained in Order 8 Rule 10 CPC are not beyond the ex-parte proceedings and it was the duty of the learned Additional Civil Judge to give chance of hearing to the defendant appellant before passing the judgment and decree against him and even in ex-parte proceedings, the statement of the plaintiff respondent should have been taken and in the present case, since no statement of the plaintiff respondent was taken by the lower court, therefore, the judgment and decree dated 6.2.1980 passed by the learned Additional Civil Judge under the provisions of Order 8 Rule 10 CPC is without jurisdiction and liable to be set aside.
2. That the judgment of the learned Additional Civil Judge dated 6.2.1980 cannot be said to be a judgment in the eye of law, as no reasons have been assigned in passing that judgment.
10. On the contrary, the learned Counsel for the respondent plaintiff has argued that the judgments of both the courts below are not vitiated from any legal error.
11. Before appreciating the above contentions of the learned Counsel for the parties, scope of Rule 10 of Order 8 CPC should also be seen.
12. Rule 10 of Order 8 CPC reads as under:
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.
13. The plain meaning of Sub-rule (1) of Rule 1 as amended by the Amendment Act, 1976 is that the defendant must file his written statement within the time allowed by the Court. In short, filing of the written statement by the defendant is made obligatory. Omission of the words “may, and if so required by the court” from the original provision of Rule 1 reinforces this conclusion.
14. In Mathew Elenjical v. Nagpur Roman Catholic Diocesan Corpn. (P) Ltd. , the Madhya Pradesh High Court observed that Rule 10 provides the consequence of non-filing of the written statement as required by Rule 1 or 9. The amendment made in this rule leaves no doubt that it applies also to a case of non-filing of written statement as required by Rule 1. The rule, no doubt, says initially that the court shall pronounce judgment against the defendant on his failure to file the written statement required by Rule 1 or 9, but it then proceeds to enable the court to make such order in relation to the suit as it thinks fit. The use of the word “or”, which is normally disjunctive, after “shall pronounce judgment against him” to separate it from the words “make such order, in relation to the suit as it thinks fit” shows that the discretion of the court has been retained in such a situation as well. Moreover, the latter expression would be redundant and meaningless if the court had no option except to pronounce judgment against the defendant. Rule 10, therefore, gives the court a discretion either to pronounce judgment against the defendant on mere non-filing of the written statement or to make such order as it thinks fit. This would mean that the court may in its discretion even grant more time to the defendant for adjourning the case. What really matters is that the court is not obliged necessarily to pronounce judgment against a defendant merely because the defendant has failed to file the written statement within the time given by the court.
15. In Ganpat Chand v. Jeth Mal , this Court while interpreting Rule 10 of Order 8 CPC made the following observations:
Where the defendant fails to file his written statement within the time permitted by the Court there are two courses open to the Court, namely, the Court may under the first part of order 8 Rule 10 proceed to pronounce judgment or it may under the second part of Order 8 Rule 10 which gives a wide discretion to the Court to “make such order in relation to the suit as it thinks fit” proceed with the further hearing of the suit. In a case where the court adopts the second course and decides to proceed with he hearing of the suit, although the defendant would be debarred from filing his written statement subsequently, he can yet be allowed to cross-examine the witnesses produced by the plaintiff and adduce evidence in rebuttal of the allegations made in the plaint and then take part in the final arguments, leading to the decision of the suit. But he cannot be allowed to lead any evidence in respect of defences which have not been raised on account of his failure to file the written statement.
16. Rules 1, 5 and 10 of Order 8 enable the Court in an appropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein. Though the language of Rule 10 says that the Court ‘shall’ pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed. But, in the appropriate case or cases, if discretion is exercised by the Court in passing the judgment & decrees straightway and not extending the time for filling written statement, such discretion of the Court unless falls under the category of arbitrary, it should not be challenged and the Court’s action would be treated within the framework of law.
17. In the light of the above observations, the facts of the present case are being examined.
18. In the present case, from perusing the judgment of the learned Additional Civil Judge dated 6.2.1980, it appears that:
(1) That in para 1 of the judgment he mentioned the facts pertaining to execution of Pronote and Receipt.
(2) That in another para he forfeited the right of the defendant appellant for filing written statement and thus, applying the provisions of Order 8 Rule 10 CPC, he passed the decree against the defendant appellant for Rs. 9133/-on the basis of Pronote of Rs. 7200/-.
19. In this case, the defendant appellant appeared in the suit and several adjournments were granted to him by the learned Additional Civil Judge for filing written statement, but same was not filed by him. Therefore, on 6.2.1980, the learned Additional Civil Judge pronounced the judgment against the defendant appellant when he failed to file written statement despite several opportunities having been granted to him and passed the decree against him under the provisions of Order 8 Rule 10 CPC. The discretion exercised by the learned Additional Civil Judge cannot be said to be arbitrary and his act is perfectly within law. It cannot be said that the learned Additional Civil Judge has passed the judgment and decree dated 6.2.1980 in haste and in passing the judgment & decree he has committed no illegality or irregularity.
Whether ex-parte proceedings should be taken?
20. In my opinion, when the right of the defendant appellant is forfeited for filing written statement and the learned Additional Civil Judge when proceeded under the provisions of Rule 10 of Order 8 CPC, at this stage, there was no justification to pass an order that the suit should proceed ex-parte against the defendant appellant. Therefore, I am clearly of the opinion that when any order is passed under the provisions of Rule 10 of Order 8 CPC, in such situation, no question arises that the suit should proceed ex-parte. I am fortified in my view by the observations made, in Satya Narayan Sah v. Brij Gopal Mundra , where the defendant appeared in the suit and several adjournments were granted to him for filing the written statement, but same was not filed, it was held that as notices had already been served upon the defendant who had also appeared, there was no need to fix any date for ex parte hearing and the Court could proceed under Order 8 Rule 10 CPC and pronounce the judgment followed by a decree. Therefore, the first argument of the learned Counsel of the appellant defendant is not tenable.
21. The next question that arises for consideration is whether the judgment passed by the learned Additional Civil Judge dated 6.2.1980 can be said to be a judgment in the eye of law or not?
22. There is no doubt on the legal position that a judgment pronounced under Rule 10 of Order 8 CPC must also satisfy the requirement of judgment as defined in Sub-section (9) of Section 2 of the CPC and, therefore, Court should go into the case and pronounce a decision on the facts so far as they are before it. The word ‘judgment’ is defined in Sub-section (9) of Section 2 of the CPC in the following manner:
(9) “judgment” means the statement given by the Judge on the grounds of a decree or order.
23. What the word “judgment” means has been answered by the Hon’ble Supreme Court in Surendra Singh v. State of Uttar Pradesh AIR 1954 SC 194 in the following manner:
A judgment is the final decision of the Court intimated to the parties and to the world at large by formal “pronouncement” or “delivery” in open Court. It is a judicial act which must be performed in a judicial way. The decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement. This is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court.
24. In my opinion, the following are the essential requirements of a valid judgment:
1. Heading of the judgment, including the title of the suit of proceeding.
2. Facts put forward by the plaintiff and the defendant in a civil suit.
3. Points for determination.
4. Decision on these points with reasons therefor.
5. Final order granting or refusing to grant relief in a civil case.
6. Signature and designation of the Judge and the date of the decision.
25. In this case, the suit of the plaintiff respondent was based on the execution of Pronote and Receipt and no other facts were there and there was no written statement of the defendant appellant and thus, if the judgment is passed by mentioning the above facts, then, it can be said that it satisfies the requirements of judgment as defined in Sub-section (9) of Section 2 of the CPC. Therefore, from this point of view also, the judgment of the learned Additional Civil Judge dated 6.2.1980 does not suffer from any infirmity and if that judgment is upheld by the learned Additional District Judge No. 1, Hanumangarh vide his judgment and decree dated 17.7.1981, he has also further committed no mistake or error of law in maintaining that judgment of the learned Additional Civil Judge. In that judgment, heading of the judgment is there, facts are also there, decision is there, final order is there, signatures are there, but for want of point for determination and reasons thereon, that judgment cannot be declared as bad, since it was a case of recovery of amount on the basis of execution of Pronote and Receipt and there was no case of the defendant appellant before the learned Additional Civil Judge and, therefore, there was no question of framing point for determination before him nor reasons were to be assigned in the judgment. Hence, the judgment of the learned Additional Civil Judge dated 6.2.1980 is perfect and valid from all point of view. Thus, the second argument of the learned Counsel for the appellant defendant is also not tenable.
26. Thus, the substantial question formulated by this Court on 22.1.1982 is decided in the manner that the learned Additional District Judge No. 1, Hanumangarh was right in maintaining the judgment and decree dated February 6, 1980 passed by the learned Additional Civil Judge, Ganganagar under the provisions of Rule 10 of Order 8 CPC. For the reasons stated above, this second appeal of the appellant defendant deserves to be dismissed and the same is dismissed by affirming the judgment and decree dated 17.7.1981 passed by the learned Additional District Judge No. 1. Hanumangarh. No order as to costs.