Summary of Recent judgment

Case: Asma Lateef & Anr. v. Shabbir Ahmad & Ors.

Date of Order / Judgment: 12 th January, 2024

The Matter Heard by Bench: Justice B.R Gavai, Justice Dipankar Datta and Justice Aravind Kumar


In the present case, according to the Appellants their great-grandmother, Khatoon Jannat Bibi, had orally gifted them a certain property and they were in peaceful possession of the same continuously. Appellants, as plaintiffs, through their power of attorney holder, filed a civil suit before the Trial Court and prayed for a permanent injunction against the three defendants from interfering with the appellant’s peaceful possession of the suit property. Subsequently, an application for interim injunction was filed by the appellants. The Trial Court allowed the application and directed Kazmi and Samiullah (defendants) to maintain status quo with regard to the suit property, and directed them not to interfere with the appellant’s peaceful possession thereof.

Kazmi (defendant no.1) filed his written statement where he inter alia contended that the suit was barred by section 331 of the UPZA & LR Act and not maintainable before a civil court since the suit property was bhoomidhari land.

It was further averred that the suit was barred by section 41(h) of the Specific Relief Act and he also contended that his son Samiullah, the defendant no.2, had no concern with the suit property as long as his father (Kazmi) was alive and, hence, Samiullah had been wrongly impleaded as the defendant no.2. It is to be noted that no written statement was filed on behalf of defendant no 2 i.e. Salimullah (the son of defendant no.1 Kazmi). The trial court had pronounced the judgment against Samiullah upon his failure to submit the written statement within the time fixed for such submission.


Whether the pronouncement of judgment is justified in case of failure to submit the written statement within the time fixed for submission?


The Court observed that “According to Court, Rule 10, Order 8 of CPC is permissive in nature granting two options to the court, and if in every case a judgment is pronounced against a person in response to non-submission of the written statement then it would render the second part of Rule 10 i.e., “or make such order in relation to the suit as it thinks fit” otiose. Thus, the court noted that “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, where after, 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 Court held that the failure on the part of the defendant to file the written statement within the time permitted by the court would not tantamount to pronouncement of judgment against the defendant, when it is incumbent upon the plaintiff to prove the case by adducing evidence. Thus, the Court set aside the decree passed in a civil suit.