In CIVIL APPEAL NO. 9695 OF 2013-SC-Mere failure or neglect of defendant to file written statement controverting the pleaded facts in the plaint, may not entitle him to a judgment in his favour unless he proves his claim by adducing evidence: SC
Justices B.R. Gavai, Dipankar Datta & Aravind Kumar [12-01-2024]

Read Order: ASMA LATEEF & ANR v. SHABBIR AHMAD & ORS

Tulip Kanth

New Delhi, January 16, 2024: The Supreme Court has clarified that all Civil Courts in the country have to regulate their judicial work in accordance with the terms of provisions of the Civil Procedure Code(CPC). Any egregious breach or violation of such provisionswould be ultra vires.

The facts of the case were that the appellants claimed that their great-grandmother had orally gifted them a certain property (suitproperty) whereafter a memorandum recording the same was also executed before the relevant tehsildar and they were in peaceful possession of the same continuously.Appellants, as plaintiffs, through their power of attorney holder, instituted a civil suit before the Trial Court under section 38 of the Specific Relief Act, 1963 against three defendants - a son of Khatoon Jannat Bibi named Asad Ullah Kazmi [defendant no. 1], Kazmi’s son Samiullah [defendant no. 2] and one purported caretaker [defendant no. 3]. Appellants prayed for a permanent injunction against the three defendants from interfering with the appellants’ peaceful possession of the suit property.

The Trial Court directed Kazmi and Samiullah not to interfere with the appellants’ peaceful possession. Upon the appellants moving an application under Rules 5 and 10 of Order VIII, CPC for pronouncement of judgment against Samiullah, the same was allowed by the Trial Court. Kazmi passed away in 1995, after which his sons transferred the suit property to the respondents 1 to 3 (Purchasers) vide a sale deed. The Suit against Kazmi was finally dismissed as abated.

Appellants, as purported decree holders, filed an execution application. The Executing Court restrained the Purchasers from interfering in any manner with the suit property.Respondents 1 to 3 had filed an objection under section 47 of the Code of Civil Procedure, 1908 (CPC) in an execution application filed by the appellants and the same was allowed resulting in dismissal of the execution application.

A revision was carried by the appellants and the Revisional Court directed the Executing Court to proceed with the execution of the decree whilst treating such objection as non-maintainable.The revisional order was challenged by the respondents and the High Court relegated the parties to the remedy of having their rights adjudicated by the appropriate forum.This is how the appellants reached the Top Court challenging the said judgment and order of the High Court.

The appellants contended that the High Court fell into error by not appreciating the fact that the Executing Court exceeded its jurisdiction by going behind the order dated 5^th August, 1991 and the decree that was drawn up in terms thereof, returning a finding that the same was not executable. It was submitted that the reliance placed by the High Court on Balraj Taneja v. Sunilwas misplaced.

The 3-judge Bench of Justice B.R. Gavai, Justice Dipankar Datta & Justice Aravind Kumar noted that the Trial Court was presumed to be aware of the fact that the written statement of Kazmi was on record or else it would not have fixed the next date for settling issues. The Bench opined that the High Court rightly observed that even on pronouncement of judgment against Samiullah, the lis remained alive as against Kazmi and decision on the objection as to maintainability could have resulted in a contrary decision.

“No tribunal, far less a civil court, in exercise of judicial power ought to play ducks and drakes with the rights of the parties”, the Bench said while observing, “We are constrained to observe that it is to avoid such a situation of contradictory/inconsistent decrees that power under Rule 10 of Order VIII ought to be invoked with care, caution, and circumspection, only when none of several defendants file their written statements and upon the taking of evidence from the side of the plaintiff, if deemed necessary, the entire suit could be decided.”

One of the main issues before the Bench was whether the decree drawn up on the basis of the order dated 5^th August, 1991 and put to execution by the appellants could have been objected to by the respondents 1 to 3 as inexecutable under section 47, CPC.

Section 47, CPCmandates that an executing court shall determine all questions arising between the parties to the suit or their representatives in relation to the execution, discharge, or satisfaction of the decree and that such questions may not be adjudicated in a separate suit.It was observed by the Top Court that the legality of the order of the High Court, together with the order of the Executing Court that the former went on to uphold, had to be tested bearing in mind that the powers of an executing court, though narrower than an appellate or revisional court, can be exercised to dismiss an execution application if the decree put to execution is unmistakably found to suffer from an inherent lack of jurisdiction of the court that made the same rendering it a nullity in the eye of law.

The Bench proposed to hold that the Executing Court and the High Court were right in holding that the objection raised by the respondents 1 to 3 to the executability of the decree was well-founded. Further, referring to Order VII &Order XIV, CPC, the Bench observed, “It must be remembered that a plaint in a suit is not akin to a writ petition where not only the facts are to be pleaded but also the evidence in support of the pleaded facts is to be annexed, whereafter, upon exchange of affidavits, such petition can be decided on affidavit evidence. Since facts are required to be pleaded in a plaint and not the evidence, which can be adduced in course of examination of witnesses, mere failure or neglect of a defendant to file a written statement controverting the pleaded facts in the plaint, in all cases, may not entitle him to a judgment in his favour unless by adducing evidence he proves his case/claim.

The Top Court also clarified that a decision rendered by a court on the merits of a controversy in favour of the plaintiff without first adjudicating on its competence to decide such controversy would amount to a decision being rendered on an illegal and erroneous assumption of jurisdiction and, thus, be assailable as lacking in inherent jurisdiction and be treated as a nullity in the eye of law. As a logical corollary, it was held that the order dated 5th August, 1991 was ab initio void and the decree drawn up based thereon was inexecutable.

Referring to Balraj Taneja(Supra), the Bench concurred with the observation that a judgment, as envisaged in section 2(9), CPC, should contain the process of reasoning by which the court arrived at its conclusion to resolve the controversy and consequently to decree the suit.

As per the Bench, the examination of the order dated 5^th August, 1991 did not reveal any adjudication leading to determination of the rights of the parties in relation to any of the matters in controversy in the suit and, therefore, the decree since drawn up was not a formal expression of an adjudication/determination since there had been no adjudication/determination so as to conform to the requirements of a decree within the meaning of section 2(2). Thus, the Bench expressedits concurrence with both the High Court and the Executing Court that there was no decree at all in the eye of law.

“We, therefore, hold that a decree that follows a judgment or an order (of the present nature) would be inexecutable in the eyes of law and execution thereof, if sought for, would be open to objection in an application under section 47CPC.”, it held while also adding that the Trial Court had no authority to decree the suit against Samiullah in exercise of its power under Rule 10 of Order VIII, CPC.

Thus, upholding the judgment of the High Court, the Bench asked that the determination of the title to the suit property, adjudication on the validity of the sale deed in favour of the Purchasers, or decision on any other contentious issue would be left open for a forum of competent jurisdiction to embark upon, if approached by any of the parties.