Holding

A decree for specific performance cannot be granted merely on the ground of the defendant's failure to file a written statement when the plaint raises a genuine factual dispute; the court must either require proof of the disputed fact or refrain from passing the decree, and must provide a reasoned judgment as required by law.

Summary

Balraj Taneja and others appealed against a Delhi High Court decree granting specific performance to Sunil Madan. The High Court had passed the decree under Order 8 Rule 10 of the CPC solely because the defendants failed to file a written statement, without examining a material factual dispute concerning an Income‑Tax permission required under the sale agreement. The Supreme Court held that when the plaint contains a serious disputed question of fact, the court must either require the plaintiff to prove the fact or refrain from passing a decree, and must also render a reasoned judgment as mandated by Section 2(9) CPC and Order 20 Rule 4(2). Consequently, the decree was set aside and the case remanded for the defendants to file their written statements. The Court also clarified the applicability of Section 16 of the Specific Relief Act and the discretion under Article 136.

Issues considered

The propriety of passing a decree for specific performance under Order 8 Rule 10 when the defendant has not filed a written statement but the plaint contains disputed facts.
Whether a court must render a reasoned judgment in accordance with Section 2(9) CPC and Order 20 Rule 4(2) even in ex‑parte proceedings under Order 8 Rule 10.
Whether the requirement of readiness and willingness under Section 16 of the Specific Relief Act must be satisfied before granting specific performance.
The scope of the Supreme Court's discretionary jurisdiction under Article 136 in setting aside the lower court's decree.

Legislation cited

Code of Civil Procedure, 1908s. Order 12 Rule 6, s. Order 20 Rule 4(2), s. Order 8 Rule 10, s. Order 8 Rule 5(1)(2), s. Section 2(9)
Constitution of Indias. Article 136
Indian Evidence Act, 1872s. Section 58
Specific Relief Act, 1963s. Section 16

Subjects

specific performanceOrder 8 Rule 10written statementCivil Procedure Codejudgment requirementdisputed factsreadiness and willingnessArticle 136Specific Relief Act

Judgment

A BALRAJ TA NEJA AND ANR.
v.
SUNIL MADAN AND ANR.

SEPTEMBER 8, 1999

B [S. SAGHIR AHMAD AND D.P. MOHAPATRA JJ.]

Civil Procedure Code, Order 8 Rules 5 and JO-Suit-No Written
Statement filed-Facts in plaint not controverted-Still Court has to satisfy
itself that there is no fact requiring further proof, in spite of presumed
C admission and conduct of parties, before passing a decree-Without settling
the dispute set out in the plaint on which hinges the readiness and willingness
ofplaintiff to pe1form his part of contract, a Decree of Specific Performance
could not be passed.

CPC, S 2 (9)- "Judgment" delivered in a case should contain, apart
D from facts of the case and points for determination, the process of reasoning
which led to the decision irrespective of whether the case is contested, is ex-
parte, or where a Written Statement is not filed and is to be decided under
Order 8 Rule 10 or before the High Court in its Original Jurisdiction.

E Specific Relief Act, S. I 6-Jn a suit for specific performance, readiness
and willingness of the party to perform his part of the contract is mandatory
for passing a decree.

Constitution of Jndia, Article I 36-Interference by Supreme Court under
discretionary jurisdiction-When called for.
F A suit for Specific Performance was filed before the High Court on the
Original Side, by respondent No 1 against appellant and respondent No. 2
which was decreed in his favour by Single Judge without a reasoned judgment,
because he found that no written statement was filed despite time granted.
The Division Bench upheld the decree against which the appeal has been
G filed. The respondent submitted that the appellant had adopted dilatory tactics
and did not explain why no written statement was filed by him before the
lower Court.

Allowing the appeal, the Court

HELD : I. A perusal of the High Court judgment will indicate that the
H 258
B. TANEJA v. S. MADAN 259
suit had been decreed only because of the failure of the defendants in filing A
the written statement. This exhibits the annoyance of the Court which is
natural as ~o Court would allow the proceedings to be delayed or
procrastinated. But this should not disturb the judicial composure which
unfortunately is apparent in the instant case as the judgment neither sets
out the facts of the case nor does it record the process of reasoning by which B
the Court felt that the case of the plaintiff was true and stood proved. As will
be evident from the facts, the plaint itself showed a serious disputed question
of fact involved between the parties with regard to obtaining the Certificate
(permission) from the Income Tax Department and its communication by the
defendants to the plaintiff(respondent No. I.) Since this question of fact was
reflective of the attitude of the plaintiff, whether he was ready and willing C
to perform his part of the contract, it had to be proved as a fact that the
Certificate (permission) from the Income Tax Department had not been
obtained by the defendants and, therefore, there was no occasion of sending
it to him. If the pleadings of respondent No. 1 were limited in character that
he had pleaded only this much that the defendants had not obtained the
Certificate (permission) from the Income Tax Department and had not sent D
. it to him, this fact would have stood admitted on account of non-filing of the
Written Statement by the defendants. But Respondent No. 1., as plaintiff,
himself pleaded that "defendants insisted that they had obtained the certificate
(permission) from the Income Tax Department and sent it to him". He denied
its having been obtained or sent to him. Non-filing of the Written Statement E
would not resolve this controversy. The plaint allegations, even if treated as
admitted, would keep the controversy alive. This fact, therefore, had to be
proved by the plaintiff and the Court could not have legally proceeded to pass
a judgment unless it was established clearly that the defendants had committed
default in not obtaining the Certificate (permission) from the Income Tax
Department and sending the same to the plaintiff. Unfortunately the High F
Court did not consider this fact and proceeded almost blindly to pass a decree
in favour of the plaintiff merely because Written Statement had not been
filed in the case. The Single Judge, who passed the decree, did not consider
any fact other than the conduct of the defendants in seeking adjournments
of the case for the purpose of filing Written Statement So also, the Division G
. Bench did not consider any fact other than the fact that defendants had been
trying to prolong the proceedings by seeking adjourpment, and that too, by

- · changing their counsel. The Division Bench also took into consideration the
fact that the appeal filed by the defendants against the decree passed by the
Single Judge was beyond time which again indicated their negligence. No
other fact was taken into consideration. The High Court is not absolved of H
260 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A its obligation to write a judgment as understood in common parlance. The
whole process of reasoning has to be set out for deciding the case one way
or the other. This infirmity in the impugned judgment is glaring and for that
reason also the judgment cannot be sustained.
(276-B-H; 277-B-D; 278-G; H; 279-A)

B Razia Begum v. Sahebzadi Begum & Ors., AIR (1958) SC 886 = (1959)
SCR llll, relied on.

2. "Judgment" as defined in Section 2 (9) of the.Code of Civil Procedure
means the statement given by the Judge of the grounds for a decree or order.
It should be a self contained document from which it should appear as to what
C were the facts of the case and what was the controversy which was tried to
be settled by the Court and in what manner. The process of reasoning by
which the Court came to the ultimate conclusio~ and decreed the suit should
be reflected clearly in the judgment. Whether it is a case which is contested
by the defendants by filing a Written Statement, or a case which proceeds
D ex-parte and is ultimately decided as an ex-parte case, or is a case in which
the Written Statement is not filed and the case is decided under Order 8
Rule 10, the Court has to write a judgment which must be in conformity with
the provisions of the Code or at least set out the reasoning by which the
controversy is resolved. Even if the definition of "judgment" were not contained
in Section 2 (9) or the contents thereof were not indicated in Order 20 Rule
E 1 (2) CPC, the judgment would still mean the process of reasoning by which
a judge decides a case in favour of one party and against the other. In judicial
proceedings, there cannot be arbitrary orders. A judge cannot merely say
"Suit decreed or "~uit dismissed". [277-E-G; 278-D-E; G-H)

F Nanhe v. Saiyad Tasadduq Husain, (1912) 15 Oudh Cases 78; Thippaiah
and Ors. v. Kuri Obaiah, ILR (1980) 2 Karnataka 1028 and Dineshwar
Prasad Bakshi v. Parmeshwar Prasad Sinha, AIR (1989) Patna 139, referred
to.

3. There are two separate and distinct provisions under which the
G Court can pronounce judgment on the failure of the defendant to file Written
Statement. The failure may be either under Order 8 Rule 5 (2) under which
the Court may either pronounce judgment on the basis of facts set out in the
plaint or require the plaintiff to prove any such fact; or the failure may be
under Order 8 Rule 10 CPC under which the Court is required to pronounce
judgment against the defendant or to pass such order in relation to the suit
H as it thinks fit. It is clear that the Court, at no stage, can act blindly or
B. TANEJA v. S. MADAN 261
mechanically. While enabling the Court to pronounce judgment in a situation A
where no Written Sta'iement is filed by the defendant, the Court has also
• been given the discretion to pass such_ orders as it thinks fit as an alternative.
This is also the position under Order 8 Rule to CPC where the Court can
either pronounce judgment against the defendant or pass such order as it
may think fit. In a case, specially where a Written Statement has not been
filed by the defendant, the Court should be a little cautious in proceeding B
under Order 8 Rule .to 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 2nd, therefore, only on being C
satisfied that there is no fact which need to be proved on account of deemed ·
admission, the Court can ~onveniently pass a judgment against the defendant
who has not filed the Written Statement. But if the plaint itself indicates that
'here are disputed questions offact 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 D
so as to settle the factual controversy. Such a cas<;would be cov'ered 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 to of
• Order 8. (267-F-G; 271-D-E; 272-D-G] E
Sangram Singh v. Election Tribunal, Kotah & Anr., AIR (1955) SC 425
= (1955] l SCR 1, relied on

Chuni Lal Chowdhry v. Bank of Baroda and Ors., AIR (1982) J & K
93 and Dharam Pal Gupta v. District Judge, Etah, (1982) All Rent Cases F
562, approved

State of UP. & Anr. v. Dhar;,m Singh Mehra, AIR (1983) Allahabad
130; Smt. Sushi/a Jain v. Rajasthan Financial Corporation, Jaipur, AIR
(1979) Raj 215 and Rosario Santana Vaz v. Smt. Joaquina Natividate
Fernandes, AIR (1981) Goa 61, referred to' , G
4. There is yet another provision un.der which it is posslble for the
Court to pronounce judgment on admission. This is contained in Rule 6 of
Order 12. Under this Rule, Court can, at an interlocutory stage of the
proceedings, pass a judgment on the basis of admissions m:ide by the defendant.
But before the Court can act upon the admission, _it has to be shown that the H
262 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A admission is unequivocal, clear and positive. This Rule empowers the Court
(
to pass judgment and Decree in respect of admitted claims pending adjudication
of the disputed claims in the suit. In spite of admission of a fact having been
made by a party to the suit, the Court may still require the plaintiff to prove
the fact which has been admitted ·by the defendant. This is also in consonan~e
B with the provisions of Section 58 of the Evidence Act. (270-A-F-G; 271-AJ

5. In a suit for specific performance it is mandatorily required by
Section 16 of the Specific Relief Act to plead readiness and willingness of
the plaintiff to perform his part of the contract. The Court, before acting
under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to
C find out whether all the requirements specially those indicated in Section 16
of the Specific Relief Act, have been complied with or not. Readiness and
willingness of the plaintiff to perform his part of the contract is a condition
precedent to the passing of a decree for specific performance in favour of
the plaintiff. (272-G-H; 273-A]

D 6. It is true that the jurisdiction under Article 136 of the Constitution
is a discretionary jurisdiction and notwithstanding that a judgment may not
be wholly correct or in accordance with the law, this Court is not bound to .
interfere in exercise of its discretionary jurisdiction. But in the instant
case, it is not merely a matter of the defendant's conduct in not filing the
Written Statement but the question of law as to what the court should do in
E a case where Written Statement is not filed, is involved, and this question
has to be decided so as to provide for all the lower courts as to how the court
should proceed in a situation of this nature. (276-C-D]

CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 4968 of
1999.
F
From the Judgment and Order dated 29.4.98 of the Delhi High Court in
R.F.A. No. 36of1997.

Rakesh Dwivedi, Ashwani Bhardwaj and S.P. Sharma for the Appellants.

G Kailash Vasdev for the Respondents.

The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. Leave granted.

H Respondent No. l, Sunil Madan, filed a suit in the Delhi High Court
'·
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, I.) 263

against the appellants and respondent No.2 for specific performance of an A
agreement for sale in respect of property No.W-118, First Floor, Greater
Kailash-II, New Delhi. The suit was filed in May, 1996. Summons which were
issued to the appellants and respondent No.2 were duly served upon them
and in response thereto, they put in appearance before the Court on 20th
September, 1996 and prayed for eight weeks' time to file written statement · B
which was allowed and the suit was adjourned to 22nd of January, 1997.
Written Statement was not filed even on that date and an application was filed·
for further time to file the Written Statement which was allowed as a last
chance and the Written Statement was directed to be filed by 7th of February,
1997. The suit was fixed for 10th of February, 1997.

Since the Written Statement was still not filed, the Court decreed the
c
suit for specific performance in favour of respondent No.I under Order 8 Rule
10 C.P.C. Respondent No.I was directed to deposit a sum ofRs.3 lakhs, being
the balance amount of sale consideration, within six weeks and on the amount
being so deposited, he was· given the. liberty to apply to the court for
. appointment of a Commissioner for executing the sale .deed in his favour. The D
review application filed by the appellants includini( respondent No.2 was :
dismissed by the High Court on 13th of May, 1997. An appeal, which was filed
by the appellants, including respondent No.2, thereafter, before the Division
Bench (R.F.A.(OS) N0,36/97) was dismissed on 29.4.1998. It is in these
circumstances that the present appeal has been filed in this Court. E
Mr. Rakesh Dwivedi, Sr. Advocate, appearing on behalf of the appellants
has contended that having regard to the circumstances of.the case, the High
Coilrt was not justified in passing the decree against the appellants, including
respondent No.2, for specific performance merely on the ground that Written
Statement was not filed by them on the date fixed for that purpose. It is also F
contended that the High Court had rejected the application for time to file
Written Statement on the ground that there was a change of counsel appearing
on behalf of the appellants and no reason was indicated by them for not filing
the Written Statement by 7th of February, 1997 or even on 10th of February,
1997 when ihe.suit was decreed under Order 8 Rule IO C.P.C., which indicates G
that the attitude adopted by the High Court in decreeing the suit under Order
S Ruie IO C.P.C. was wholly punitive in nature resulting in serious miscarriage
of justice. Mr. Rakesh Dwivedi also contended that even if the Court had
r decreed the suit under Order S Rule 10 C.P.C., it ought to have written a.
"judgment" by stating clearly the facts of the case and the reasons for
decreeing the suit. The suit, it is contended, could not have been decreed H ·
264 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A merely for not filing of the Written Statement unless facts set out in the plaint
were found proved by the High Court.

Learned counsel appearing on behalf of respondent No. l has contended
that the appellants, including respondent No.2, had adopted dilatory tactics
B and their intention, from the very beginning, was to delay the disposal of the
suit so as to harass respondent No. I who had agreed to purchase the
property in question and had also paid substantial amount by way of earnest
money. It is also contended that the conduct of the appellants and respondent
No.2 was not proper and they were negligent throughout, inasmuch as not
only that they did not file. the Written Statement, they filed an appeal before
C the Division Bench which 'also was beyond time. It is also contended that
while applying for time for Written Statement as also for review of the
judgment passed by the Court under Order 8 Rule 10 C.P.C., the appellants
and respondent No.2 had not given any reason for not filing the Written
Statement on the dates fixed by the High Court and, therefore, having regard
to the conduct of the appellants as also the vital fact that the owner of the
D property, namely, respondent No.2, had not come up in Special Leave Petition,
this Court should not exercise its discretion under Article 136 of the Constitution
-·'
in favour of the appellants.

Since the suit has been decreed by the High Court under Order 8 Rule
t
E I 0 C:P-.C., we will first examine the provisions contained in various Rules of
Order 8 to find out whether the jurisdiction was properly exercised by the
High Court in decreeing the suit under Order 8 Rule 10 C.P.C.

Order 8 Rule I provides that the defendant shall file a Written Statement
F of his defence. It is further provided by Rule 3 of Order 8 that it shall not be
sufficient for a defendant in his Written Statement to deny generally the
grounds alleged by the plaintiff, but defendant must deal specifically with
each allegation of fact of which he does not admit the truth. The further
requirement as set out in Rule 4 is that if the allegation made in the plaint is
denied by the defendant, the denial must not ·be evasive. It is, inter alia,
G provided in Rule 5 of Order 8 that every allegatiow of fact in the plaint, if not .
denied specifically or by necessary implication or stated to be not admitted

-
in the written statement, shall be taken to be admitted

This Rule provides as under:

H "Order 8 Rule 5 - Specific denial
B. TANEJA-v. S. MADAN [S. SAGHIR AHMAD, J.) 265

( 1) Every allegation of fact in the plaint, if not denied specifically or A
by necessary implication, or stated to be not admitted in the pleading
of the defendant, shall be taken to be admitted except as against a
person under disability:

Provided that the Court may in its discretion require any fact so
admitted to be proved otherwise than by such admission. B
(2) Where the defendant has not filed a pleading, it shall be lawful for
the Court to pronounce judgment on the basis of the facts contained
in the plaint, except as against a person under a disability, but the
Court may, in its discretion, require any such fact to be proved.
c
(3) In exercising its discretion under the proviso to sub- rule (1) or
under sub-rule (2), the Court shall have due regard to the fact whether
the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall D
be drawn up in accordance with such judgment and such decree shall
bear the date on which the judgment was pronounced."

The scheme of this Rule is largely dependent upon the filing or non-
filing of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that
any fact stated in the plaint, if not denied specifically or by necessary E
implication or stated to be not admitted in the pleading of the defendant, shall
be treated as admitted. Under Rule 3 of Order 8, it is provided that the denial
by the defendant in his Written Statement must be specific with reference to
each allegation of fact made in the plaint. A general denial or an evasive
denial is not treated as sufficient denial and, therefore, the denial, if it is not F
definite, positive and unambiguous, the allegations of facts made in the plaint
shall be treated as admitted under this Rule.

The proviso appended to this Rule is important in the sense that
though a fact stated in the plaint may be treated as admitted, the Court may,
in its discretion, stili require such "admitted fact" to be proved otherwise than G
by such admission. This is an exception to· the general mle of evidence that
a fact which is admitted need not be proved.

Sub-rule (2) provides that if the defendant has not filed his Written
Statement, it would be lawful for the Court to pronounce judgment on the
basis of the facts contained in the plaint. The rule further proceeds to say H
266 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A that notwithstanding that the facts stated in the plaint are treated as admitted,
the Court, though it can lawfully pass the judgment, may before passing the
judgment require such fact to be proved. The rule is thus in consonance with ...
the Proviso which also requires the fact, even though treated as admitted, to
be proved. Thus, the Proviso and Sub- rule (2) read together indicate that
where:
B
(i) an allegation of fact made in the plaint is not denied specifically,
or
(it) by necessary implication, or
(fu) stated to be "not admitted" in the pleading of the defendant, or
c
(iv) the defendant has not filed the Written Statement,

Such allegations of facts shall be treated as admitted. The Court in this
situation can either proceed to pronounce judgment on such admitted facts
or may require the_plaintiff, in spite of such admission, to prove such facts.
D
Sub-rule (2) quoted above is thus an enabling provision which enables
the Court to pronounce judgment on the basis of the facts contained in the
plaint, if the defendant has not filed a Written Statement. What is important
to note is that even though a Written Statement is not filed by the defendant,
the court may still require a fact pleaded in the plaint to be proved. ·
E
We may now consider the provisions of Order 8. Rule 9 as also the
provisions contained in the other Rule, namely Rule 10, under which the
instant suit has been decreed by the High Court. These Rules are quoted
below:

F "Rule 9. Subsequent pleadings - No pleading subsequent to the
Written Statement of a defendant other than by way of defence to a
set-off or counter-claim shall be presented except by the leave of the
Court and upon such terms as the Court thinks fit, but the Court may
at any time require a Written Statement or additional Written Statement
G from any of the parties and fix a time for presenting the same.

Rule 10. Procedure when party fails to present Written Statement
called for by Court - Where any part}' from whom a Written Statement
is required under rule I or rule 9 fails to present the same within the
time permitted or fixed by the Court, as the case may be, the Court
H shall pronounce judgment against him or make such order in relation
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.] 267

to the suit as it thinks fit and on the pronouncement of such judgment, A
a decree shall be drawn up."

This Rule, namely Rule 10, was also amended by the Code of Civil
Procedure (Amendment) Act, 1976 (Act No. 104 of 1976). Prior to its
amendment, it was held in a number of decisions that the rule can be invoked
only in those situations where the Court has required the defendant to file B
the Written Statement in terms of Rule 9 of Order 8. A few other High Courts
had taken the view that this Rule would be applicable even to those cases
where a Written Statement was required to be filed under Order 8 Rule I CPC.
The conflict of decisions has been set at rest by providing specifically under
this rule that where a party from whom a Written Statement is required either C
under Rule I or Rule 9 of Order 8 fails to present the same within the time
permitted or fixed by the Court, the Court shall pronounce judgment against
him or make such order in relation to the suit as it thinks fit. Rule 10 thus
governs both the situations where a Written Statement is required under Rule
1 of Order 8 as also where it has been demanded under Rule 9. In both the
situations, ifthe Written Statement has not been filed by the defendant, it will D
be open to the Court to pronounce judgment against him or make such order
in relation to the suit as it thinks fit. It is to be noticed that if the Written
Statement is not filed, the Court is required to pronounce judgment against
the defendant. The words "against him" are to be found in Rule 10 of Order
9 which obviously means that the judgment will be pronounced against the E
defendant. This rule also gives a discretion either to pronounce judgment
against the defendant or "make such order in relation to the suit as it thinks
fit." These words are of immense significance, inasmuch as they give a
discretion to the Court not to pronounce judgment against the defendant and
instead pass such order as it may think fit in relation to the suit.
F
There are thus two separate and distinct provisions under which the
Court can pronounce judgment on the failure of the defendant to file Written
Statement. The failure may be either under Order 8 Rule 5(2) under which the
Court may either pronounce judgment on the basis of the facts set out in the
plaint or require the plaintiff to prove any such fact; or the failure may be G
under Order 8 Rule I 0 ·CPC under which the Court is required to pronounce
judgment against the defendant or to pass such order in relation to the suit
as it thinks fit.

This Court, in Sangram Singh v. Election Tribunal, Kotah & Anr., AIR
(1955) SC 425 = [1955) 1SCR1, observed on page 432 of the report as under: H
268 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A "(32) We have already seen that when a summons is issued to the
defendant it must state whether the hearing is for the settlement of
issues only or for the final disposal of the suit (0.5, R.5). In either
event, 0.8, R. l comes into play and if the defendant does not present
a Written Statement of his defence, the Court can insist that he shall;
and if, on being required to do so, he fails to comply -
B
"the Court may pronounce judgment against him, or make such
order in relation to the suit as it thinks fit." (0.8, R.10).

This invests the Court with the widest possible discretion and enables
it to see that justice is done to 'both' sides; and also to witnesses
c if they are present: a matter on which we shall dwell later.

(33) We have seen that if the defendant does not appear at the first
hearing, the Court can proceed 'ex parte', which means that it can
proceed without a Written Statement; and 0.9, R.7 makes it clear that
unless good cause is shown the defendant cannot be relegated to the
D position that he would have occupied if he had appeared. That means
that he cannot put in a Written Statement unless he is allowed to do
so, and if the case is one in which the Court considers a Written
Statement should have been put in, the consequences entailed by 0.8,
R.10 must be suffered.

E What those consequences should be in a given case is for the Court,
in the exercise of its judicial discretion, to determine. No hard and fast
rule can be laid down. In some cases, an order awarding costs to the
plaintiff would meet the ends of justice: an adjournment can be granted
or a Written Statement can be considered on the spot and issues
framed. In other cases, the ends of justice may call for more drastic
F
action."

This decision was followed by the J&K High Court in Chuni Lal
Chowdhry v. Bank of Baroda and Ors., AIR (1982) J&K 93 in which it was
laid down as under:
G "On the authority of these observations, Rule 10 can be taken to
relate to Rule 1 of Order 8 and on the defendant's failure to file Written
Statement of his defence, when so required, the court has the power,
either to pronounce the judgment against him or make such order in
relation to the suit as it thinks fit depending upon whether the suit
H was for the final disposal or for the settlement of the issues only. In
...

B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.] 269

the latter case, the court has ample discretion to grant more time for A
filing the Written Statement or to proceed to hearing of the suit
without such Written Statement The discretion cannot, however, be
exercised arbitrarily. In determining which course to adopt, the court
will always be guided by the facts and circumstances of each case.
Where the court decides to proceed to hearing of the suit without the B
Written Statement, that would not debar the defendant from taking
part in further proceedings of the case. His participation would, however,
be hedged in by several limitations. He will not be able either to cross-
examine the plaintiffs witnesses or to produce his own evidence with
regard to any questions of fact which he could have pleaded in the
· Written Statement. He will, however, be competent to cross-examine C
the plaintiffs witnesses in order to demolish their version of the
plaintiffs case.

To the same effect is the decision of the Patna High Court in Siai
Sinha v. Shivadhari Sinha, AIR (1972) Pat. 81."
D
In Dharam Pal Gupta v. District Judge, Etah, (1982) All Rent Cases
562, the Allahabad High Court held as under:

"Therefore, reading Order VIII, R.10, C.P.C. along with O.VIII, R. 5,
C.P.C., it seems that even though the filing of Written Statement has
been made obligatory and the Court has now been empowered to pass E
a judgment on the basis of the_ plaint on the ground that no Written
Statement has been filed by th~ defendant still, the discretion of the
Court has been preserved and despite the non-filing of the Written
Statement the Court may pass any other order as it may think fit (as
laid down in 0. VII R. l 0) or the Court may in its discretion require any F
particular fact mentioned in the plaint to be proved as laid down in
Order VIII, R.5 sub-rule (2) C.P.C."

This decision was followed in State of UP. & Anr. v. Dharam Singh
Mahra, AIR (1983) Allahabad 130.
G
In Smt. Sushi/a Jain v. Rajasthan Financial Corporation Jaipur, AIR
· (1979) Raj 215 and also in Rosario Santana Vaz v. Smt. Joaquina Natividate
Fernandes, AIR (1981) Goa 61, it was laid down that if the defendant was
deliberately delaying the proceedings and had failed to assign good and
sufficient cause for not filing the Written Statement, the Court could forfeit
his right of defence. H
270 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Thete is yet another provision under which it is possible for the Court
to pronounce judgment on admission. This is contained in Rule 6 of Order
12 which provides as under :

"R6 Judgment on admissions.

B ( 1) Where admissions of fact have been made either in the pleadings
or otherwise, whether orally or in writing,. the Court may at any stage
of the suit, either on the application of any party or of its own motion
and without waiting for the determination of any other question
between the parties, make such order or give such judgment as it may
think fit, having regard to such admissions.
c
(2) Whenever a judgment is pronounced under sub-rule (1), a decree
shall be drawn up in accordance with the judgment and the decree
shall bear the date on which the judgment was pronounced."

D This Rule was substituted in place of the old Rule by the Code of Civil
Procedure (Amendment) Act, 1976. The objects and reasons for this
amendment are given below:-

"Under rule 6, where a claim is admitted, the Court has jurisdiction to
enter a judgment for the plaintiff and to pass a decree on the admitted
E claim. The object Of the rule is to enable a party to obtain a speedy
judgment at least to the extent of the relief to which, according to the
admission of the defendant, the plaintiff is entitled. The rule is wide
enough to cover oral admissions. The rule is ~eing amended to clarify
that oral admissions are also covered by the rule."

F Under this Rule, the Court can, at an interlocutory stage of the
proceedings, pass a judgment on the basis of admissions made by the
defendant. But before the Court can act upon the admission, it has to be
shown that the admission is unequivocal, clear and positive. ·This Rule
empowers the Court to pass judgment and decree in respect of admitted
G claims pending adjudication of the disputed claims in the suit.

In Razia Begum v. Sahebzadi Anwar Begum & Ors., AIR (1958) SC 886
= 1959 SCR 1111, it was held that Order 12 Rule 6 has to be read along with
Proviso to Rule 5 of Order 8. That is to say, notwithstanding the admission
made by the defendant in his pleading, the Court may still require the plaintiff
H · to prove the facts pleaded by him in the plaint.
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.] 271

Thus, in spite of admission of a fact having been made by a party to A
the suit, the Court may still require the plaintiff to prove the fact which has
been admitted by the defendant. This is also in consonance with the provisions
of Section 58 of the Evidence Act which provides as under: .

"58. Facts admitted need not be proved-No fact need be proved in
· any proceeding which the parties thereto or their agents agree to B
admit at the hearing, or which, before the hearing, they agree to admit
by any writing under their hands, or which by any rule of pleading
in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted C
to be proved otherwise than by such admissions."

The Proviso to this Section specifically gives a discretion to the Court
to require the facts admitted to be proved otherwise than by such admission.
The Proviso corresponds to the Proviso to Rule 5(1) Order 8 CPC.
D
In view of the above, it is clear that the Court, at no stage, can act
blindly or mechanically. While enabling the Court to pronounce judgment in
a situation where no Written Statement is filed by the defendant, the Court
has also been given the discretion to pass such order as it may think fit as
an alternative. This is also the position under Order 8 Rule l 0 CPC where the E
Court can either pronounce judgment against the defendant or pass such
order as it may think fit.

Having regard to the provisions of Order 12 Rule 6; Order 5 Rule 8,
specially Proviso thereto; as also Section 58 of the Evidence Act, this Court
in Razia Begum's case (supra) observed as under : F
"In this connection, our attention was called to the provisions of R.6
of 0.12 of the Code of Civil Procedure, which lays down that, upon
such admissions as have been made by the Prince in this case, the
Court would give judgment for the plaintiff. These provisions have
got to be read along with R. 5 of 0.8 of the Code with particular G
reference to the proviso which is in these terms:

"Provided that the Court may in its discretion require any fact
so admitted to be proved otherwise than by such admission".

The proviso quoted above, is identical with the proviso to S. 58 of H
272 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A the Evidence Act, which lays down that facts admitted need not be
proved. Reading all these provisions together, it is manifest that the
Court is not bound to grant the declarations prayed for, even though
the facts alleged in the plaint, may have been admitted."
The Court further observed:-
B
"Hence, ifthe Court, in all the circumstances of a particular case, takes
the view that it would insist upon the burden of the issue being fully
discharged, and ifthe Court, in pursuance of the terms ofS. 42 of the
Specific Relief Act, decides, in a given case, to insist upon clear proof
of even admitted facts, the Court could not be said to have exceeded
c its judicial powers."

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 the
Court should proceed to pass judgment blindly merely because a Written
Statement has not been filed by the defendant traversing the facts st!t out by
D 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
E in favour of the plaintiff without requiring him to prove any fact mentioned
in the plaint. It is a matter of 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 ifthe plaint itself indicates that
there are disputed questions of fact involved in the case regarding which two
F 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
G such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.
Applying these tests to the instant case, it will be noticed that in a suit
for specific performance it is mandatorily required by Section 16 of the
Specific Relief Act to plead readiness and willingness of the plaintiff to
perform his part of the contract. The Court, before acting under Order 8 Rule
H 10 has to scrutinise the facts set out in the plaint to find olU_whether all the
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.] 273

requirements, specially those indicated in Section 16 of the Specific Relief A
Act, have been complied with or not. Readiness and willingness of the
plaintiff to perform his part of the contract is a condition precedent to the
passing of a decree for specific performance in favour of the plaintiff.

We may now examine the facts of this case.
B
A copy of the plaint which is on record indicates that respondent No. I
had entered into an agreement on 6.8.1992 with respondent No.2 as also the
present appellants for the sale of property bearing No.W-118, Greater Kailash,
Part-II, New Delhi, on the first floor (rear portion consisting of one drawing
room, two bed rooms, one kitchen, two bath rooms and one servant quarter
with toilet along with impartible and indivisible proportionate rights in the C
land underneath) for a sum of Rs. 7 lakhs out of which a sum of Rs. 4 lakhs
was paid at the time of the signing of the agreement with the stipulation that
a further sum of Rs. 2.25 lakhs would be paid by respondent No.1 on receipt
of permission from the Income Tax Department and Rs.75,000 would be paid
at the time of the registration of sale deed. It was further pleaded in the plaint D
that possession of the flat was delivered to respondent No. I in pursuance of
the agreement dated 6th of August, 1992 in which it was further set out that
all expenses for execution and registration of the sale deed would be borne
exclusively by respondent No. I. The plaint further recites that till February
19, 1996, respondent No. I was not informed by any of the defendants about
permission, if any, taken from the Income Tax Department in spite of several E
requests made by him from time to time. It was also pleaded as follows:

"Even the permission under the Income Tax Act to enable the agreement
to sell and execution of the sale deed in favour of the Plaintiff was
to be obtained not only by Defendant No. I but also by Defendant F
Nos. 2 and 3 as mentioned in Clause 12 of the agreement to sell."

In respect of the permission of the Income Tax Department, referred to
above, para I2 of the plaint mentioned as follows:

"That vide letter/reply dated I st of March 1996, the Defendant No. I G
had replied to the notice of the Plaintiff dated 13th February 1996,
wherein a vague and evasive denial was made by the Defendant No. I
to the contents of the notice dated 13th February 1996 of the Plaintiff.
The Plaintiff was informed for the first time about the income tax
certificate alongwith the said reply by Defendant No. I which was
obtained by the Defendant No. I. However, no certificate was obtained H
274 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A by the Defendant Nos. 2 and 3 as was requisite under the terms and
conditions of agreement to sell dated 6th of August, 1992."

In para 16 of the plaint, it was further pleaded as under:

"That vide reply dated 16th March, 1996, the Plaintiff had brought it
B to the notice of the Defendants that the copy of certificate alleged to
have been obtained in December 1995 was never given or sent to the
Plaintiff by the Defendants. The Plaintiff had called upon the
Defendants to send forward the original certificate obtained by them
in December 1995 to enable the Plaintiff to proceed further in the
c matter. The Plaintiff had also called upon the Defendant Nos. 2 and
3 to obtain requisite certificate under the Income Tax Act as per terms
of agreement to sell dated 6th August 1992."

The case of respondent No.1, as set out in the plaint itself, was that
while defendants, namely, the present appellants as also respondent No.2
D maintained that they had obtained the necessary permission from the Income
Tax Department and had sent the same to him, respondent No.1, disputed that
fact and maintained that this was not correct and no Certificate (permission)
of the Income Tax Department was ever sent to him by the appellants or
respondent No.2. On the own pleadings of respondent No. I, as set out in his
E plaint, there was a dispute between the parties, namely, plaintiff and defendants,
whether permission from the Income Tax Department had been obtained by
the defendants (the present appellants and respondent No.7) and sent to
plaintiff (present respondent No.1) or the said permission was, at no time,
obtained by the defendants nor had the defendants sent it to the plaintiff
(respondent No.1 ). This was a vital fact which had an important bearing upon
F the conduct of respondent No. l. That is to say, if it was established that the
Certificate (permission) from the Income Tax Department had already been
obtained by the defendants and sent to him, the denial of the plaintiff would
be reflective of his attitude that he was not ready and willing to perform his
part of the contract. On the contrary, if it was found that defendants had not
G obtained the Certificate, the question whether specific performance could still
be decreed would have immediately arisen particularly because of the relevant
provisions of the Income Tax Act. Now, the agreement in question stipulated
that the defendants would obtain permission from the Income Tax Department
and send the same to the plaintiff whereupon the plaintiff would pay a sum
of Rs. 2.25 lakhs to the defendants and the balance amount of Rs.75,000
H would be paid at the time of the registration of the sale deed. Since, on the
B. TANEJA v. S. MADAN (S. SAGHIR AHMAD, J.] 275
own showing of the plaintiff, as set out in the plaint, the defendants had been A
asserting that they had obtained the permission and sent the same to the
plaintiff, which was not accepted by the plaintiff, there arose between the
parties a disputed question of fact which had to be investigated and decided
particularly as it was likely to reflect upon the conduct of the plaintiff whether
he was willing to perform his part of the contract or not. It had, therefore, to B
be proved as a fact that permission of the Income Tax Department had not
been obtained by the defendants nor had that Certificate (permission) been
sent to the plaintiff. If the said Certificate had been obtained and sent to the
plaintiff, the latter, namely, the plaintiff should have immediately paid the
stipulated amount of Rs. 2.25 lakhs to the defendants and required them to
execute the sale .deed in his favour. The plaintiff, according to facts set out C
in the plaint, waited till February 19, 1996 which is quite evident from the
exchange of notices between the parties which indicated the existence of a
serious dispute whether the Income Tax Certificate (permission) had been
obtained by the defendants from the Income Tax Department and sent to the
plaintiff as alleged by defendants in their notices or it was wrong as asserted
by the plaintiff in his notices or the replies to defendants' notices. D
This suit has been decreed by the Delhi High Court by the following
judgment:

"SUIT NO. 1124/96 & I.A. No. 4303/96.
E
On the 20th of September, 1996, Mr. Lal it Kumar, learned counsel for
defendants 1 to 3 sought time to file written statement and reply. Time
was granted but the Written Statement and reply have not been filed.
On the 22nd of January, 1997, Mr. Aseem ·Mohar for counsel for
defendant appeared and sought time to file vakalatnama and Written
Statement/reply and the matter had been adjourned to this date. Today F
Mr. Kamal Mehta putting in appearance on behalf of defandant Nos.
2 and 3 and represents that Mr. Rajiv Nayar has been engaged by the
second and third defendants this morning and he seeks time to file
Written Statement/reply.
;·

G
The defendants are adopting this tactic only to protract the
proceedings and have not filed the Written Statement and reply to the

- application inspite of sufficient opportunity having been given.

Accordingly, the suit is decreed for specific performance in favour of
the plaintiff and against the defendants with the directions to the H
276 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A plaintiff to deposit the balance amount of Rs. 3,00,000 (Rupees Three
Lakhs) in this court within six weeks from today. If the amount is
deposited within six weeks, it will be open for the plaintiff to apply
for the appointment of a Commissioner for the execution of the sale
deed. The defendants are a\so directed to pay the cost of the suit.

B February 10, 1997 Sd/-. JUDGE."

A perusal of the above judgment will indicate that the suit had been
decreed only because of the failure of the defendants in filing the Written
Statement. This exhibits the annoyance of the Court which is natural as no
C Court would allow the proceedings to be delayed or procrastinated. But this
should not disturb the judicial composure which unfortunately is apparent in
the instant case as the judgment neither sets out the facts of the case nor
does it record the process of reasoning by which the Court felt that the case
of the plaintiff was true and stood proved.

D As will be evident from the facts set out above, the plaint itself showed
a serious disputed question of fact involved between the parties with regard
to the obtaining of Certificate (permission) from the Income Tax Department
and its communication by the defendants to the plaintiff (Respondent No. 1).
Since this question of fact was reflective of the attitude of the plaintiff,
E whether he was ready and willing to perform his part of the contract, it had
to be prayed as a fact that the Certificate (permission) from the Income Tax
Department had not been obtained by the defendants and, therefore, there
was no occasion of sending it to him. If the pleadings of respondent No. 1
were limited in character that he had pleaded only this much that the defendants
had not obtained the Certificate (permission) from the Income Tax Department
F and had not sent it to him, this fact would have stood admitted on account
of non-filing of the Written Statement by the defendants. But Respondent No.
1, as plaintiff, himself pleaded that "defendants insisted that they had obtained
the Certificate (permission) from the Income Tax Department and sent it to
him". He denied its having been obtained or sent to him. Non-filing of the
G Written Statement would not resolve this controversy. The plaint allegations,
even if treated as admitted, would keep· the controversy alive. This fact,
therefore, had to be proved by the plaintiff and the Court could not have
legally proceeded to pass a judgment unless it was established clearly that
the defendants had committed default in not obtaining the Certificate
(permission) from the Income Tax Department and sending the same to the
H plaintiff.
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.] 277

The agreement between the parties was entered into in 1992 and for four A
years the plaintiff had kept quiet and not insisted for the execution of the sale
deed in his favour. When he did raise that question, the defendants informed
him that the certificate had already been obtained from the Income Tax
Authorities and sent to him.

Unfortunately, the High Court did not consider this fact and proceeded B
almost blindly to pass a decree in favour of the plaintiff merely ~ecause
Written Statement had not been filed in the case. Learned Single Judge, who
passed the decree, did not consider any fact other than the conduct of the
defendants in seeking adjournments of the case for purposes of filing Written
Statement. So also, the Division Bench did not consider any fact other than C
the fact that the defendants had been trying to prolong the proceedings by
seeking adjournments, and that too, by changing their counsel. The Division
Bench also took into consideration the fact that the appeal filed by the
defendants against the decree passed by the Single Judge was beyond time
which again indicated their negligence. No other fact was taken into
consideration and the decree passed by the Single Judge was affirmed. D
. There is yet another infirmity in the case which relates to the "judgment"
passed by the Single Judge and upheld by the Division Bench.

"Judgment" as defined in Section 2(9) of the Code of Civil Procedure E
means the statement given by the Judge of the grounds for a decree or order.
What a judgment should contain is indicated in Order 20, Rule 4 (2) ~hich
says that a judgment:

"shall contain a concise statement of the case, the points for
determination, the decision thereon and ~he reasons for such decision." F
It should be a self-contained document from which it should appear as
to what were the facts of the case and what was the controversy which was
tried to be settled by the Court and in what manner. The process of reasoning
by which the Court came to the ultimate conclusion and decreed the suit
should be reflected clearly in the judgment. G
In an old case, namely, Nanhe v. Saiyad Tasadduq Husain, (1912) 15
Oudh Cases 78, it was held that passing of a mere decree was material
irregularity within the meaning of Section 115 of the Code and that even if
the judgment was passed on the basis of the admission made by the defendant,
other requirements which go to constitute "judgment" should be complied H
278 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A with.
In Thippaiah and others v. Kuri Obaiah, ILR (1980) 2 Kamataka 1028,
it was laid down that the Court must state the grounds for its conclusion in
the judgment and the judgment should be in conformity with the provisions
of Section 2 (9) of the Code of Civil Procedure. In Dineshwar Prasad Bakshi
B v. Parmeshwar Prasad Sinha, AIR (1989) Patna 139, it was held that the
judgment pronounced under Order 8 Rule 10 must satisfy the requirements
of ''judgment" as defined in Section 2(9) of the Code.

Learned counsel for respondent No. I contended that the provisions of
C Order 20, Rule 1 (2) would apply only to contested cases as it is only in those
cases that "the points for determination" as mentioned in this Rule will have
to be indicated, and not in a case in which the Written Statement has not been
filed by the defendants and the facts set out in the plaint are deemed to have
been admitted. We do not agree. Whether it is a case which is contested by
the defendants by filing a Written Statement, or a case which proceeds ex-
D. parte and is ultimately decided as an ex-parte case, or is a case in which the
Written Statement is not filed and the case is decided under Order 8 Rule I 0,
the Court has to write a judgment which must be in conformity with the
provisions of the Code or at least set out the reasoning by which the
controversy is resolved.
E
An attempt was made to contend that the definition of judgment as set
out in Section 2(9) of the Code would not be applicable to the judgment
passed by the Delhi High Court in its original jurisdiction wherein the
proceedings are regulated by the provisions of the Delhi High Court Act,
1966. It is contended that the word ''judgment" used in the Delhi High Court
F Act, 1966 would not take its colour from the definition of ''judgment" contained
in _Section 2(9) of the Code of Civil Procedure. We do not intend to enter into
this controversy, fortunately as it is not contended that the Code of Civil
Procedure does not apply, but we cannot refrain from expressing that even
if it were so, the Delhi High Court is not absolved of its obligation to write
G a judgment as understood in common parlance. Even ifthe definition were not
contained in Section 2(9) or the contents thereof were not indicated in Order
20 Rule 1 (2) CPC, the judgment would still mean the process of reasoning
by which a Judge decides a case in favour of one party and against the other.
In judicial proceedings, there cannot be arbitrary orders. A Judge cannot
merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning
H has to be set out for deciding the case one way or the other. This infirmity
B. TANEJA v. S. MADAN [S. SAGHIR AHMAD, J.) 279

in the present judgment is glaring and for that reason also the judgment A
cannot be sustained.

Learned counsel for respondent No. I then tried to invoke our
discretionary jurisdiction under Article 136 of the Constitution and contended
that on account of the conduct of the appellants as also respondent No. 2,
we should not grant leave in this case, particularly as the sale-deed has B
already been executed in his favour by the Commissioner appointed by the
High Court. It is true that the jurisdiction under Article 136 of the Constitution
is a discretionary jurisdiction and notwithstanding that a judgment may not
be wholly correct or in accordance with law, this Court is not bound to
interfere in ·exercise of its discretionary jurisdiction. But in the instant case, C
as we have already seen above, it is not merely a matter of the defendants'
conduct in not filing the Written Statement but the question of law as to what
the Court should do in a case where Written Statement is not filed, is involved,
and this question has to be decided so as to provide for all the lower courts
as to how the court should proceed in a situation of this nature.
D
We, therefore, allow the appeal, set aside the judgment dated 10.2.1997
passed by the Single Judge as also the judgment d~ted 29.4.1998 passed by
the Division Bench of the Delhi High Court and remand the case back to the
Delhi High Court for a fresh decision. We allow the appellants and Respondent
No. 2 to file their Written Statement by 15th of October, 1999, with a clear E
stipulation that if the Written Statement is not filed by that date, the decree
passed by the High Court shall stand.

!.M.A. Appeal allowed.