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PETITIONER: BALRAJ TANEJA & ANR.

       Vs.

RESPONDENT: SUNIL MADAN & ANR.

DATE OF JUDGMENT:       08/09/1999

BENCH: D.P.Mohapatro, S.Saghir Ahmad

JUDGMENT:

     S.SAGHIR AHMAD, J.

     Leave granted.

     Respondent  No.1,  Sunil  Madan, filed a suit  in  the Delhi  High Court against the appellants and respondent No.2 for specific performance of an 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 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 suit for specific performance in favour of respondent  No.1  under Order 8 Rule 10  C.P.C.   Respondent No.1  was directed to deposit a sum of Rs.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   review application  filed  by the appellants  including  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)  NO.36/97) was dismissed on 29.4.1998.  It is in these  circumstances that the present appeal has been  filed in this Court.

     Mr.   Rakesh  Dwivedi,  Sr.   Advocate,  appearing  on behalf of the appellants has contended that having regard to the  circumstances  of  the  case, the High  Court  was  not justified  in  passing  the decree against  the  appellants, including  respondent No.2, for specific performance  merely

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on  the ground that written statement was not filed by  them on  the  date fixed for that purpose.  It is also  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 the suit was decreed under Order 8 Rule 10  C.P.C., which indicates that the attitude adopted by the High  Court  in  decreeing the suit under Order  8  Rule  10 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 decreed the suit under Order  8 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  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.1 has  contended  that  the appellants,  including  respondent No.2, had adopted dilatory tactics and their intention, from the very beginning, was to delay the disposal of the suit so as  to harass respondent No.1 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 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 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 10 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 1 provides that the defendant shall file  a  Written  Statement 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, provided in Rule 5 of  Order 8 that every allegation 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 :

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     "Order 8 Rule 5 - Specific denial

     (1)  Every  allegation of fact in the plaint,  if  not denied  specifically or 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.

     (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.

     (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 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 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  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, still require such  "admitted  fact" to be proved otherwise than  by  such admission.   This  is  an exception to the general  rule  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 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

     (i)  an  allegation of fact made in the plaint is  not denied specifically, or

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     (ii) by necessary implication, or

     (iii)  stated to be "not admitted" in the pleading  of the defendant, or

     (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.

     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 defendent, the court may still require  a fact pleaded in the plaint to be proved.

     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:

     "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 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  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." .lm10

     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 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 1 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 under Rule 1 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

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1  of Order 8 as also where it has been demanded under  Rule 9.  In both the situations, if the Written Statement has not been filed by the defendant, it will 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  pronouced against  the  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.

     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 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 as it thinks fit.

     This  Court,  in Sangram Singh v.  Election  Tribunal, Kotah  & Anr.  AIR 1955 SC 425 = 1955 (1) SCR 1, observed on page 432 of the report as under :

     "(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 (O.5, R.5).  In either event, O.8,  R.1  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 --

     "the Court may pronounce judgment against him, or make such  order in relation to the suit as it thinks fit." (O.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 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  O.9, R.7 makes it clear that  unless  good cause  is  shown  the defendant cannot be relegated  to  the 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 O.8, R.10 must be suffered.

     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

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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 action."

     This  decision  was followed by the J&K High Court  in Chuni  Lal Chowdhry vs.  Bank of Baroda and Others, AIR 1982 J&K 93 in which it was laid down as under :

     "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 was for the final disposal or for the settlement of the  issues  only.  In the latter case, the court has  ample discretion  to  grant  more  time  for  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   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  plaintiff’s 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 the plaintiff’s witnesses in order to demolish their version of the plaintiff’s case.

     To  the same effect is the decision of the Patna  High Court  in  Siai  Sinha v.  Shivadhari Sinha, AIR  1972  Pat. 81."

     In Dharam Pal Gupta vs.  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 a judgment on the basis of  the  plaint on the ground that no written statement  has been  filed  by the 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 O.  VII R.10) or the  Court may  in its discretion require any 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 U.P.  &  Anr. vs.  Dharam Singh Mahra AIR 1983 Allahabad 130.

     In  Smt.   Sushila  Jain   vs.   Rajasthan   Financial Corporation  Jaipur,  AIR 1979 Raj 215 and also  in  Rosario Santana  Vaz  vs.  Smt.  Joaquina Natividate  Fernandes  AIR

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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.

     There  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 :

     "R.6 Judgment on admissions.

     (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.

     (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."

     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 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 being  amended  to  clarify that oral  admissions  are  also covered by the rule."

     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  claims pending adjudication of the disputed claims in the suit.

     In  Razia Begum vs.  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 to prove the facts pleaded by him in the plaint.

     Thus, 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 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 admit at the hearing, or which, before

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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 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.

     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  10 CPC where  the  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 :  .lm15

     "In  this connection, our attention was called to  the provisions  of  R.6 of O.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 O.8 of the Code with particular 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 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:-

     "Hence,  if  the 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 if  the Court,  in pursuance of the terms of S.  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 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 set out by  the  plaintiff in the plaint filed in the Court.   In  a

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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 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  if the plaint itself indicates that  there are  disputed  questions  of  fact   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 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 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 10 has to scrutinise the facts set out in the  plaint  to  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.

     We may now examine the facts of this case.

     A copy of the plaint which is on record indicates that respondent  No.1  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 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  that possession of  the  flat  was delivered  to respondent No.1 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.1.   The plaint   further  recites  that   till  February  19,  1996, respondent  No.1  was not informed by any of the  defendants about  permission,  if  any,  taken   from  the  Income  Tax Department  in  spite of several requests made by  him  from time to time.  It was also pleaded as follows:-

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     "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.1  but  also  by Defendant 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  12  of  the  plaint mentioned as follows:-

     "That  vide letter/reply dated 1st of March 1996,  the Defendant  No.1  had replied to the notice of the  Plaintiff dated 13th February 1996, wherein a vague and evasive denial was made by the Defendant No.1 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.1 which was obtained by the Defendant No.1.  However, no certificate was obtained 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 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  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 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.1, as set out in  his 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.2)  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  the conduct  of  respondent  No.1.  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  obtained

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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/- would  be paid  at  the  time of the registration of  the  sale  deed. Since,  on  the own showing of the plaintiff, as set out  in the  plaint, the defendants had been 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  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 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.

     This  suit has been decreed by the Delhi High Court by the following judgment:-

     "SUIT NO.  1124/96 & I.A.  No.  4303/96.

     On  the  20th  of September, 1996, Mr.   Lalit  Kumar, learned  counsel  for defendant 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 Mr.  Kamal Mehta putting in appearance on behalf  of  defandant  No.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.

     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 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

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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  also directed to pay the cost of the suit.

     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  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.

     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,  whether he was ready and willing 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 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  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.

     The  agreement between the parties was entered into in 1992 and for four 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 almost blindly to pass a decree in favour of  the  plaintiff merely because 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 the fact that the

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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.

     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  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) which says that a judgment :

     "shall  contain  a concise statement of the case,  the points  for  determination,  the decision  thereon  and  the reasons for such decision."

     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.

     In  an  old case, namely, Nanhe vs.   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 with.

     In Thippaiah and others vs.  Kuri Obaiah, ILR 1980 (2) Karnataka  1028, it was laid down that the Court must  state the  grounds  for  its conclusion in the  judgment  and  the judgment  should  be  in confirmity with the  provisions  of Section  2(9) of the Code of Civil Procedure.  In  Dineshwar Prasad  Bakshi vs.  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.  1 contended  that the  provisions of 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-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

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conformity  with the provisions of the Code or at least  set out the reasoning by which the controversy is resolved.

     An  attempt was made to contend that the definiton  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 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  a judgment  as  understood  in common parlance.  Even  if  the 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 has to be set out for deciding the case one way or the other.  This infirmity  in  the present judgment is glaring and for  that reason also the judgment cannot be sustained.

     Learned  counsel  for respondent No.  1 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  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, 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.  We, therefore, allow the appeal, set  aside the judgment dated 10.2.1997 passed by the Single Judge  as  also the judgment dated 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 stipulation that if the Written Statement is not filed by that date, the decree passed by the High Court shall stand.