Authored By – Dr. Mohan Dewan
The Delhi High Court, has observed that a plain reading of Order VIII Rule 10 of the CPC states the Court shall pronounce judgment where a written statement is not filed in response to a suit and does not distinguish between a case in which the defendant is appearing and the case in which the defendant is set ex-parte and therefore the Court cannot accord two separate interpretations in such cases.
Courts have, in several verdicts relating to intellectual property, been taking a view that, where the written statement is not filed by the defendant and the defendant is proceeded ex-parte, the suit may forthwith be decreed in terms of the plaint. One of the explanations for this approach is that the suit is, in any case, accompanied by an affidavit, so the necessity of filing of affidavit-in-evidence by the plaintiff is obviated.
However, the Court opined that the correctness of this approach needs to be examined. As in a case where defendant is present but fails to file the written statement within the time stipulated under Order VIII Rule 9 of the CPC, this approach would arise various questions for consideration. First, would that mean that the affidavit filed in lieu of the plaint suffice as an affidavit-in-evidence on behalf of plaintiff? Secondly, if the court is to proceed to pronounce judgment without calling for an affidavit-in-evidence from the plaintiff, the defendant would be denied its right to cross-examine the plaintiff or other evidence that the plaintiff places on record. The Court cited the well settled principle in Sangram Singh v. Election Tribunal ((1995) 2 SCR 1), that a defendant, who is proceeded ex parte on the ground of his absence on a particular date, does not lose his right to further participate in the proceedings. Similarly, closure of the right to file written statement does not, by fact, also close the defendant’s right to refute the plaintiff’s evidence or cross examine the plaintiff’s witness.
While passing an Order in the matter of Kleenoil Filtration India Pvt Ltd vs. Udit Khatri & Ors, the Court observed that, prima facie, a thought must be given as to whether, even in a case where the written statement is not filed within the time stipulated by Order VIII Rule 1 or Rule 9 of the CPC, the Court can instantly proceed to pronounce judgment on the basis of the plaint without calling for an affidavit in evidence from the plaintiff.