Order IX Rule 8 CPC; Mohammed Shabeer Vs. Sukumaran [Kerala High Court, 02-07-2012]

Civil Procedure Code, 1908 – Order IX Rule 8 – Procedure where defendant only appears – The court below was empowered to pass a decree in the absence of the plaintiff only if the defendant had admitted the plaint claim in full or part thereof.  

IN THE HIGH COURT OF KERALA AT ERNAKULAM

V. CHITAMBARESH, J

OP(C) NO. 1468 OF 2011 (O)

OS.83/2005 of PRINCIPAL SUB COURT, PALAKKAD

Dated this the 2nd day of July, 2012

FOR PETITIONER(S)/PETITIONER: BY ADVS.SRI.SAJU.S.A, SRI.K.C.KIRAN, SMT.P.A.SHEEJA; FOR RESPONDENT(S): R1 BY ADV.SMT.PRABHA R.MENON, R3 BY ADV.SRI.C.K.THANU PILLAI, SRI.T.K.SHAIJ RAJ, SRI.M.KRISHNAKUMAR, SRI.K.P.JOY, SRI.C.HARIKUMAR, SMT.R.SUSHA

J U D G M E N T

A brazen violation of the statutory provisions prompts me to set aside the judgment in a suit in exercise of the jurisdiction under Article 227 of the Constitution of India especially since no assessment of evidence is involved. I am resorting to this course fully conscious that the judgment is open to an appeal under

# Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908

(CPC for short).

2. The suit was one for specific performance of an agreement for sale dated 09.07.2004 of about 9 cents of land for a total consideration of ₹15,50,000/- allegedly entered into between the plaintiff and the first defendant. There was also an alternate prayer for return of the advance amount of ₹5,00,000/- allegedly paid by the plaintiff to the first defendant on the date of agreement. The first defendant totally denied the execution of the agreement and also the receipt of any amount as advance pursuant thereto in the written statement filed in the suit. The specific case of the first defendant was that blank signed papers given by him to the plaintiff while availing a loan of ₹5,00,000/- had been misused to fabricate the agreement for sale.

3. Neither the plaintiff nor his power of attorney holder was present in court when the suit was called on for hearing and an application put in by counsel to remove the suit from the list for trial was rejected. The first defendant thereupon filed a statement to the effect that a decree for ₹5,00,000/- can be passed against him being the loan availed of from the plaintiff. The court below accepted this statement and passed a decree for an amount of ₹5,00,000/- against the first defendant in favour of the plaintiff with interest thereon at 9% per annum. The short question that arises for consideration is as to whether the court below was justified in passing such a decree when no part of the plaint claim had been admitted by the first defendant.

4. I heard Mr. T. Krishnanunni, Senior Advocate on behalf of the petitioner/plaintiff and Mrs. Prabha R Menon, Advocate on behalf of the first respondent/first defendant.

5. The relevant statutory provision is Order IX Rule 8 CPC which is extracted below:

# Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder”.

(emphasis supplied).

The first defendant had neither admitted the plaint claim for specific performance of the agreement for sale nor part thereof as regards the receipt of advance amount of ₹5,00,000/- pursuant to its execution. The case of the first defendant on the other hand was that he had availed of a loan of ₹5,00,000/- from the plaintiff and blank signed papers given as security was used to fabricate the agreement.

6. The court below would have been justified to pass a decree for ₹5,00,000/- only if the first defendant had admitted at least in part the plaint claim of having received the said sum as advance sale consideration. The court below was empowered to pass a decree in the absence of the plaintiff only if the first defendant had admitted the plaint claim in full or part thereof under Order IX Rule 8 CPC. A court is obliged to pass a partial decree only for the uncontested part of the plaint claim in the absence of the plaintiff (see:

# Calcutta Port Trust v. Shalimar Tar Products, 1991 Supp (2) SCC 153

The only option which the court below had in the circumstances obtaining was to dismiss the suit for default for the non appearance of the plaintiff on the day the case was called on for hearing.

7. It was contended on behalf of the first defendant that the judgment of the court below could be sustained by calling in aid Order XII Rule 6 CPC which deals with judgment on admissions. Firstly, there had not been any admission on the part of the first defendant with regard to any fact in issue in the suit for the provisions of Order XII Rule 6 CPC to apply in the case on hand. Secondly, the said provision would apply only to issues admitted in the presence of the plaintiff and the court below was then obliged to pronounce judgment on all the issues as enjoined under Order XIV Rule 2 CPC. I have no doubt in my mind that the impugned judgment was passed without advertance to the statutory provisions leading to an unsolicited decree in a suit for specific performance.

8. The further question is as to whether I should relegate the plaintiff to the statutory remedy of appeal under Section 96 read with Order XLI Rule 1 CPC after an year and a half has elapsed since the judgment. I should bear in mind that no oral evidence was let in by the parties to the suit and therefore no question of appreciation of oral evidence arises as at present. The Supreme Court dealing with the powers of the High Court under Article 227 of the Constitution of India observed in

# Jai Singh and others v. Municipal Corporation of Delhi and another, (2010) 9 SCC 385

as follows:

“It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice”.

(emphasis supplied).

9. The impugned judgment stems out of a misconception of the applicability of Order IX Rule 8 CPC when the first defendant had not admitted any part of the plaint claim in the suit for specific performance. An appeal even if filed under Section 96 read with Order XLI Rule 1 CPC at this distance of time would necessarily entail a remand and that too after several years. Nothing prevents me from exercising the correctional jurisdiction under Article 227 of the Constitution of India especially since no appreciation of oral evidence is involved to test the correctness of the judgment.

10. I set aside the impugned judgment and remand the suit to the court below for disposal afresh after affording to the parties an opportunity to adduce evidence. The parties shall appear in the court of the Subordinate Judge of Palakkad on 06.08.2012 where O.S. No. 83/2005 was pending. The Original Petition (Civil) is allowed. No costs.

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