Some provisions of Civil Procedure Code are of penal nature. If any party fails to follow these provisions, court can resort to penal action against such party. If some party fails to present written statement, which court has called for, court can resort to penal action against that party. It reveals that provisions, which Civil Procedure Code has provided against such failure, are also of penal nature.
2. Relevant Provisions
Order 8 Rule 10 of Civil Procedure Code.
3. Procedure when a party fails to present written statement
Following points are important for explanation of procedure against that party, who fails to present written statement, which court has called for;
i. Power of court
When any party from whom court has required to present written statement fails to present the same within that time, which court has fixed, court can pronounce judgment against him or can make that order, which court thinks fit in relation to suit.
Usually court pronounces judgment or makes other suitable order against that party, who fails to present written statement within thirty days. However, this rule is not applicable to suit against government. Reason is that government can present written statement within period of three months. Therefore, judgment, which is given prior to this period of three months, is considered void.
iii. Two alternatives
When defaulting party fails to present written statement within that time, which court has fixed, there are following two alternatives for court
a. pronouncement of Judgment
Following points are important as far as pronouncement of judgment is concerned
a-i. Last opportunity
Last opportunity should be provided for presentation of written statement before pronouncement of judgment.
a-ii. Pronouncement of Judgment on basis of facts
Although court can pronounce such judgment without recording of evidence, yet it should pronounce such judgment on basis of those facts, which are before it.
a-iii. Pronouncement of Judgment though recording of evidence
In appropriate cases, court can pronounce judgment after recording of evidence. However, suit can be decreed without recording of further evidence when defaulting party admits material facts.
b. Making of other fit order
No-doubt court posses’ discretion to pronounce judgment against defaulting party. However, such punitive action should only be taken in severe circumstances; in alternative to such punitive action, court can adopt following procedure
b-i. Awarding of cost
Court can award costs and can grant an adjournment.
b-ii. Ex-party evidence
Court can first initiate proceeding to record ex-part evidence and can then pronounce judgment after recording of evidence.
b-iii. Right to appear
Before passing of ex-part decree, defaulting party can appear at any stage, but he does not possess right to present written statement.
b-vi. Right of Cross-examination
Defaulting party can cross-examine witnesses of plaintiff during recording of such ex-part evidence.
iv. Amended written Statement
Rule, which has been provided against that party, who fails to present written statement within that time, which court has fixed, is also applicable to presentation of amended written statement.
To conclude, it can be stated that above-mentioned procedure can only be adopted when some conditions have already been fulfilled. These conditions are that defendant should have been duly served, should have been provided copy of plaint, and should have been directed by court to present written statement within fixed time.