Failure of defendant to file written statement within prescribed time would not ipso facto and by itself justify invocation, of Order VIII Rule 10 to decree the suit without further process.

In Kleenoil Filtration India Pvt. Ltd vs. Udit Khatri & Ors., CS (COMM) 72/2022, decided by the Hon’ble Delhi High Court on 05.01.2023

The Hon’ble Court in the aforesaid matter came across the question as to whether in a case where there was no written statement filed, the Court could straightaway decree the suit on the basis of the assertion in the plaint without seeking any affidavit-in-evidence from the plaintiff.

Hon’ble Supreme Court in Balraj Taneja v. Sunil Madan (1998) 8 SCC 396 has interpreted the provisions of Order VIII Rule 5 and 10 of CPC. The position as emerges from the said case is that the Court can, in an appropriate case, proceed to decree a suit on the basis of the averments contained in a plaint. However, the word “shall” as it figures in Order VIII Rule 10 of the CPC has been held not to be mandatory, in view of the succeeding provision, in the same Rule, empowering the Court to “make such order in relation to the suit as it thinks fit”.

The Hon’ble Court relying on other judgment of the Apex Court observed that ‘failure, on the part of the defendant to file a written statement within the time allowed in that regard cannot, therefore, ipso facto and by itself justify invocation, of Order VIII Rule 10 to decree the suit without further process. The Court can undoubtedly do so; but, before that, the Court has to scrutinize the plaint, satisfy itself that there is no contested factual issue, and that, therefore, the averments in the plaint, by themselves, justify decreeing of the suit. The decision is not to be lightly taken. It is only where the issue and the controversy in the plaint and the facts set out therein do not disclose any such fact as would require to be proved by the plaintiff on affidavit, that the Court can proceed to decree the suit without calling for an affidavit in evidence. A finding to that effect, which reflects that it has been arrived at after due application of mind to the averments in the plaint appears, therefore, to be the statutory sine qua non, before Order VIII Rule 10 can be invoked to decree a suit without an affidavit-in-evidence of the plaintiff.’

In regard to a commercial suit, the Court noted that by virtue of the second proviso of Order VIII Rule 1 read with Rule 10, on the expiry of 120 days from the service of summons, if the defendant has not filed the written statement, the Court can, in an appropriate case, bearing in mind the caution provided by Balraj Taneja, may proceed to decree the suit in terms of Order VIII Rule 10 of the CPC.