Regular Second Appeal No.1463 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 20, 2010 Ushnak Singh ...Appellant VERSUS The Punjab State & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.G.S.Bal, Advocate, for the appellant. Mr.Amit Chaudhary, AAG, Punjab, for the respondents. ***** RANJIT SINGH, J. The appellant had filed a suit for declaration to the effect that he was entitled to service benefit of proficiency step up on completion of 24 years and 32 years of continuous service. Upon a notice issued to the defendants, they appeared. However, despite opportunities, no written statement was filed and accordingly the defence of the defendants was struck off vide order dated 5.10.2004. This order was accepted as it was not put to any challenge before any Court. Regular Second Appeal No.1463 of 2009 (O&M) : 2 : To compound the matter further, the defendants failed to cross-examine the appellant, who appeared as PW-1 and tendered his affidavit as well as some documents on record by way of evidence. The trial court in this background, allowed the suit filed by the appellant by observing that there was no defence raised on behalf of the defendants and that they had also not addressed any question to the appellant while he had appeared to give evidence before the court. Without making any amends to the situation as it would emerge from this position, the appeal was filed. No prayer was ever made for recalling the order dated 5.10.2004. No efforts were made to lead any evidence. However, the Appellate Court went at tangent to make reference to some of the ACRs earned by the appellant to observe that he did not deserve proficiency step up on completion of 24 years and 32 years of service. Strangely, the appellate Court has made reference to material i.e. ACRs without these being on record or without these having been proved. The appellate Court has failed to see the effect of the order striking of the defence of the respondent. The only documentary evidence, which was led by the appellant himself, was his service book, Exh.P-2. Though this was marked as a document and exhibited on record, still the Appellate Court found fault with this piece of evidence to say that it was not produced in original but only photo copy of the same was produced during the course of trial. By referring to the provisions of Section 65 of the Evidence Act, it is observed that this evidence could not have been relied upon by the court to grant the relief. This being a correct legal position, then Regular Second Appeal No.1463 of 2009 (O&M) : 3 : obviously there was nothing on record in regard to the ACRs of the appellant, which have been referred to and relied upon by the Appellate Court to reverse the judgment passed by the trial court. Let us see the legal position that will emerge due to the order passed striking off defence and the evidence which is led is not subjected to any cross-examination. It may have the effect that the pleas made in the plaint are deemed to be admitted there being no denial to these averments made in the plaint. Order 8 Rule 3 of CPC provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged but he must deal specifically with each allegation of fact of which he does not admit the truth. Order 8 Rule 4 of CPC talks of evasive denial to say that defendant must not deny the allegations evasively but answer the point of substance. Having so provided, Order 8 Rule 5 of CPC talks about the effect of cases where there is no specific denial. It says “every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except against a person under disability.” The proviso says that “Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.” Thus, where a fact pleaded is not denied by the defendant, it has to be taken as admitted in view of Order 8 Rule 5 of CPC as reproduced above. This Rule enacts what is called `the rule of traverse' in English Law and provides that an allegation in the Regular Second Appeal No.1463 of 2009 (O&M) : 4 : plaint will be deemed to be admitted by the defendant unless in the written statement it is denied specifically or by necessary implication or it is stated that it is not admitted. Order 12 Rule 6 would enable the Court to pass a judgment on admission where such admission is made either pleading or otherwise orally. There is a difference between Order 12 Rule 6 and Order 8 Rule 5 as under the later rule, there is a total omission on the part of a defendant to file a written statement but no positive admission on his part. Still, it can be construed as an admission and a judgment may follow under Order 8 Rule 5 of CPC. Where a written statement is filed and positive admissions are made therein, then the judgment can follow under Order 12 Rule 6 of CPC and not under Order 8 Rule 5 of CPC. Decree passed under Order 8 Rule 5 CPC is not an ex-parte decree. [See The Traders' Bank Ltd. Vs. Avtar Singh, AIR 1988 Delhi 55]. It is held in this case that when a defendant appears in a suit, but fails to file a written statement and, therefore, a decree is passed under this rule, it is not an ex-parte decree and can not be so set- aside. Thus, failure to file a written statement would mean that the defendants have admitted the claim and it can be so construed as an admission and judgment may follow under Order 8 Rule 5 of CPC. It can be said that the suit was rightly decreed by the Trial Court in view of this legal position that would emerge from the analysis of these provisions. This suit, thus, was liable to be decreed on this short ground. The Appellate Court, without much justification, has gone at tangent to set-aside the decree passed in favour of the appellants on the basis of no material available on record and there being no denial to the assertions made in the plaint, which stood Regular Second Appeal No.1463 of 2009 (O&M) : 5 : admitted. The approach adopted by the first Appellate Court, thus, does not appear to be legal and can not be sustained. Reference is made to Sarwan Singh Vs. State of Punjab, AIR 2002 Supreme Court 3652, where it is held that when an opponent declines to put his case in cross-examination, the evidence tendered on that issue ought to be accepted. It is held as under:- “It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above. (See in this context AEG Carapiet v. AY Derderian, AIR 1961 Calcutta 359 (P.B.Mukherjee J. as he then was)]. The substantial question of law, thus, would arise in this case to the effect whether the well reasoned judgment could be reversed without any material or whether reference or reliance could be placed on material, which was not before the court. Certainly, the Appellate Court was misconceived in making reference to the ACRs without these having been proved on record or exhibited. In my view, it was not appropriate on the part of the Appellate Court to upset the judgment when there was no defence projected by the respondent-State to contest the claim made by the appellant. In this view of the matter, the judgment passed by the Ist Appellate Court cannot be sustained. The same is set-aside. Regular Second Appeal No.1463 of 2009 (O&M) : 6 : The judgment passed by the trial Court shall stand restored. Decree- sheet be accordingly prepared. January 20, 2010 ( RANJIT SINGH ) ramesh JUDGE