Satish Gupta vs Praveen Kumar Singhal

A.F.R.
Reserved On: 09.03.2026
Delivered On: 01.07.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 1605 of 2026
Satish Gupta
…..Petitioner(s)
Versus
Praveen Kumar Singhal
…..Respondent(s)
Counsel for Petitioner(s) : Abhishek Kumar Singh, Devid
Kumar Singh, Prateek Rai
Counsel for Respondent(s) :
Court No. - 33
HON'BLE MANISH KUMAR NIGAM, J.
1. This petition has been filed challenging an order dated 11.11.2025
passed by the Additional District Judge, Court No. 12, Ghaziabad in
Original Suit No. 1029 of 2019, Praveen Kumar Singhal vs Satish
Kumar Gupta, whereby learned trial court has returned the evidence
affidavit filed by the defendant-petitioner and has closed his right to lead
evidence.
2. Brief facts of the case are that plaintiff-respondent (hereinafter
referred as 'plaintiff'), instituted Original Suit No. 1029 of 2019 for a
decree of specific performance of an agreement to sell dated 20.04.2017.
After being noticed, defendant-petitioner entered appearance but did not
file written statement within the statutory period prescribed under Order
VIII Rule 1 C.P.C. On an application moved by the defendant-petitioner,
the trial court vide order dated 17.05.2022, granted one more opportunity
to the defendant-petitioner to file written statement by 30.05.2022. The

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petitioner did not file written statement within the extended time. By its
order dated 17.05.2022 and finally by order dated 05.07.2022 passed by
the trial court, right to file written statement of the defendant-petitioner
was closed. Thereafter, the evidence of the plaintiff was recorded. The
counsel for the defendant-petitioner cross-examined the plaintiff-
witnesses and subsequently filed an affidavit under Order XVIII Rule 4
of C.P.C. along with list of witnesses to lead evidence. He also filed the
affidavit of his witnesses. The plaintiff opposed the leading of evidence
by defendant-petitioner and filed an application dated 07.07.2025 being
paper No. 49-Ga on the ground that since right to file written statement
has been closed, defendant has no right to lead independent evidence.
The said application filed by the plaintiff was allowed by the order
impugned and the affidavits filed by the petitioner were directed to be
returned to the petitioner. Hence the present writ petition.
3. Contention of learned counsel for the petitioner is that non-filing
of the written statement does not render defendant the persona non grata
in the eyes of the law, rather, the defendant retains the statutory and
equitable right to participate in the trial, cross-examine witnesses of the
plaintiff and address to demolish the case of the plaintiff on the basis of
the material on record. It has been submitted by learned counsel for the
petitioner, the right to demolish the plaintiff's case necessarily includes
the right to lead evidence for the limited purpose of proving that the
transactions sued upon is prohibited by statute and are void ab initio, as
opposed to leading of evidence to prove factual "positive defense". It has
been further submitted that the defendant-petitioner through the
proposed evidence (which was returned by the impugned order ) sought
only to bring on record the material to demonstrate the suit agreement
involves a transaction prohibited by the Income Tax Act and therefore,
forbidden by law and opposed to public policy within the meaning of
Section 23 of Indian Contract Act, 1872. Learned counsel also submitted
that in a given set of circumstances, the defendant whose right to file
written statement has been closed, can be permitted to lead evidence to
demolish the case of the plaintiff. In this connection, learned counsel for

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the petitioner relied upon the judgment of this Court in the case of
Pandit Gopi Charan Bajpai and others vs. Pandit Ram Prasad
Awasti and others; 1957 SCC Online ALD 238.
4. Before considering the submissions made by learned counsel for
the petitioner, it would be useful to note the relevant provisions of the
C.P.C. regarding right of defendant to file written statement as well as
the right of the plaintiffs in case defendant fails to file the written
statement.
5. Order IV, Rule 1 of C.P.C. provides, every suit shall be instituted
by presenting (plaint in duplicate to the court) or such officer as it
appoints in this behalf. Order V provides for issuance of summons when
a suit has been duly instituted.
6. Order VIII provides for written statement. Rule 1 of Order VIII is
quoted as under:-
"1. Written Statement.— The Defendant shall, within thirty days from the
date of service of summons on him, present a written statement of his
defence:
Provided that where the defendant fails to file the written statement within
the said period of thirty days, he shall be allowed to file the same on such
other day, as may be specified by the Court, for reasons to be recorded in
writing, but which shall not be later than ninety days from the date of service
of summons.]"
7. Rule 10 of Order VIII provides for consequences when party fails
to present written statement within a time limit. Rule 10 of Order VIII is
quoted as under:-
" 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:"
8. It would also be relevant to look into the provisions of Order IX,
Rules 6 and 7. Rules 6 and 7 of Order IX is quoted as under:-

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"6. Procedure when only plaintiff appears.— (1) Where the plaintiff appears
and the defendant does not appear when the suit is called on for hearing,
then—
(a) When summons duly served.—if it is proved that the summons was duly
served, the Court may make an order that the suit shall be heard ex parte;]
(b) When summons not duly served.—if it is not proved that the summons was
duly served, the Court shall direct a second summons to be issued and served
on the defendant;
(c) When summons served but not in due time.—if it is proved that the
summons was served on the defendant, but not in sufficient time to enable
him to appear and answer on the day fixed in the summons, the Court shall
postpone the hearing of the suit to a future day to be fixed by the Court, and
shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly
served or was not served in sufficient time, the Court shall order the plaintiff
to pay the costs occasioned by the postponement.
7. Procedure where defendant appears on day of adjourned hearing and
assigns good cause for previous non-appearance.— Where the Court has
adjourned the hearing of the suit, ex parte, and the defendant, at or before
such hearing appears and assigns good cause for his previous non-
appearance, he may, upon such terms as the Court directs as to costs or
otherwise, be heard in answer to the suit as if he had appeared on the day
fixed for his appearance."
9. Elaborating his submissions, learned counsel for the petitioner
submitted that in case written statement is not filed by the defendant in
the suit, the court may proceed in accordance with Rule 10 of Order VIII
C.P.C. Rule 10 of Order VIII C.P.C. provides where any party from
whom a written statement is required fails to present the same, 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. It has been further submitted by learned counsel
for the petitioner that the provisions of Rule 10 of Order VIII C.P.C. are
not mandatory. The provisions of Rule 10 of Order VIII C.P.C. are
enabling provisions, and in case the court does not pronounce the
judgment against the defendant and passes an order otherwise, then the
defendant will have a right to participate in the hearing of the
proceedings. Right to participate in hearing will include right to cross-
examine the witnesses of the plaintiff as well as right to lead evidence to

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demonstrate the falsity of the plaintiff's case. Learned counsel for the
petitioner relied upon the judgment of the Hon'ble Supreme Court in the
case of Ranjit Singh Vs. State of Uttarakhand and others, 2024 SCC
Online SC 2932. Learned counsel for the petitioner relied upon the
observations made by the Hon'ble Supreme Court in paragraph No. 5 of
the judgment, which is quoted as under:-
"5.....At this stage, we must clarify the legal position. Even if a defendant
does not file a written statement and the suit is ordered to proceed ex-parte
against him, the limited defence available to the defendant is not foreclosed.
A defendant can always cross-examine the witnesses examined by the
plaintiff to prove the falsity of the plaintiff's case. A defendant can always
urge, based on the plaint and the evidence of the plaintiff, that the suit was
barred by a statute such as the law of limitation....."
10. It has been further submitted by learned counsel for the petitioner
that once in absence of written statement, court has not proceeded to
pronounce judgment in exercise of powers under Rule 10 of Order VIII
C.P.C., the court can proceed against the defendant ex parte in exercise
of powers under Order IX Rule 6 of C.P.C. Sub-rule (a) of Rule 6 of
Order IX provides if it is proved that summons were duly served, the
court can make an order that suit shall be heard ex parte, meaning
thereby, the court will fix a date for ex parte evidence of the plaintiff to
prove his case. Rule 7 of Order IX provides where the court has
adjourned the hearing of the suit, ex parte, and the defendant, at or
before such hearing appears and assigns good cause for his previous
non-appearance, he may, upon such terms as the court may directs as to
costs or otherwise, be heard in answer to the suit as if he had appeared
on the date fixed for his appearance. It has been further submitted, even
if no application under Rule 7 of Order IX is made by the defendant, it
has been interpreted by this Court as well as by Hon'ble Supreme Court
and various other High Courts that the defendant can be permitted to
appear and contest the proceedings even without filing the written
statement. Once the defendant is permitted to contest the proceedings,
which includes cross-examination of witnesses of the plaintiff, then there
is no impediment in permitting the defendant to lead evidence to the
effect that the suit filed by the plaintiff was not maintainable or was
barred by law. He may not be permitted to lead evidence on the factual

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aspect of the case, but he can always be permitted to lead evidence that
the suit filed by the plaintiff as such was not maintainable. It has been
further contended by learned counsel for the petitioner that in the present
case, the evidence which was led by the petitioner, which has not been
allowed, was to the effect that the suit filed by the plaintiff was barred
under the provisions of Income Tax Act and therefore the court below
has erred in law in rejecting the evidence filed by the petitioner.
There is no dispute to the proposition of law as argued by learned counsel for
the petitioner to the extent that the defendant who has not filed the written
statement can be permitted to participate in the proceedings where the
proceedings are taken ex parte against him. He may also be permitted to cross-
examine the plaintiff witnesses in case the evidence of the plaintiff witnesses
is still to be recorded at the time when defendant choose to contest the
proceedings by putting appearance in the suit. But whether this right will
include to permit the defendant to lead evidence is a bit doubtful and has to be
examined in the light of relevant statutory provisions as well as law as laid
down by Hon'ble Supreme Court as well as by this Court and various other
High Courts. And in this regard, it would be releva nt to note the provisions
of Order VI and Order VII.
11. Order VI defines "pleadings" which means plaint or written
statement. Order VI Rule 1 and 2(1) are quoted as under:-
"1. Pleading.—“Pleading” shall mean plaint or written statement.
2. Pleading to state material facts and not evidence.—(1) Every pleading
shall contain, and contain only, a statement in a concise form of the material
facts on which the party pleading relies for his claim or defence, as the case
may be, but not the evidence by which they are to be proved......"
12. Rule 2 of Order VIII C.P.C. provides that in the written statement
new facts must be specifically pleaded by the defendant. Rule 3 of Order
VIII provides that defendant must deal specifically with each allegation
of fact of which he does not admit the truth. Rule 5 of Order VIII further
provides that in case any allegation of fact made in the plaint is not
denied specifically or by necessary implication in the pleading of the
defendant, shall be taken to be admitted. Rules 2, 3 and 5 of Order VIII
are quoted as under:-

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"2. New facts must be specially pleaded.—The defendant must raise by his
pleading all matters which show the suit not be maintainable, or that the
transaction is either void or voidable in point of law, and all such grounds of
defence as, if not raised, would be likely to take the opposite party by
surprise, or would raise issues of fact not arising out of the plaint, as, for
instance, fraud, limitation, release, payment, performance, or facts showing
illegality.
3. Denial to be specific.—It shall not be sufficient for a defendant in his
written statement to deny generally the grounds alleged by the plaintiff, but
the defendant must deal specifically with each allegation of fact of which he
does not admit the truth, except damages.
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."
13. From the bare reading of the provisions of C.P.C. quoted above, it
is apparent that parties to the suit in their pleading has to state the
material fact on which they rely and they are not supposed to plead the
evidence by which they are to be proved.
14. The whole object of pleadings is to bring the parties to an issue,
and the meaning of the rules (relating to pleadings), was to prevent the
issue being enlarged, which would prevent either party from knowing
when the cause came on from trial, what the real point to be discussed
and decided was. In fact, the whole meaning of the system is to narrow
the parties to definite issues and thereby to diminish expense and delay,
especially as regards the amount of testimony required on either side of
hearing. To attain this end, the plaintiff should state in his plaint all the
facts which constitute his cause of action. No amount of proof can
substitute pleadings which are foundation of the claim of a litigating
party. The defendant should also state in his written statement all the
material facts on which he relies for his defence. When the result of the

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pleading on both sides is that a material fact is firm on one side and
denied on the other, the question thus raised between the parties is called
an issue of fact. When one party answers his opponent's pleadings by
stating an objection in point of law, the legal question thus raised
between the parties is called an issue of law.
15. In case of Siddik Mohamed Shah Vs. Mt. Saran and others;
1929 SCC Online PC 79, the privy council has held it was a gift made
by the widow herself but that claim was never made in the defence
presented and the learned Judicial Commissioners therefore, very truly
find that no amount of evidence can be looked into upon a plea which
was never put forward.
16. In case of Bachhaj Nahar vs Nilima Mandal and another; 2008
(17) SCC 491, the Hon'ble Supreme Court held that no amount of
evidence can be looked into, upon a plea which was never put forward in
the pleadings. A question which did not arise from the pleadings and
which was not the subject matter of an issue, cannot be decided by the
court.
17. If a party omits to plead a material fact, he will not be allowed to
give evidence on that fact at the trial unless the court gives him leave to
amend his pleading under Rule 17 of Order VI C.P.C. In case there is no
written statement in the suit, the defendant cannot be permitted to lead
evidence of facts as there is no pleading. There cannot be any evidence
in absence of pleading, therefore, the defendant cannot be permitted to
lead evidence once he has been denied to file written statement.
18. In Syed and Company and others Vs. State of Jammu and
Kashmir and others: 1995 Supp (4) SCC 422, in paragraph No. 10 of
the judgment, Hon'ble Supreme Court has held as under:-
"10. We have carefully considered the above submissions. We are of the view
that no exception could be taken to the judgment of the High Court. No doubt
a prayer was made before the prescribed authority by the State requesting
that a decree might be granted for the amount of price of timber extracted by
the party. But that prayer alone was not enough. The pleadings ought to have
been there as to what exactly was the basis of the prayer. We are afraid that
the entire case of the State before the prescribed authority proceeded only
with reference to royalty and interest thereof, but not with reference to the

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price of the timber. It is true that in Malik Abdul Ahmad Shah Jalil Ahmad
Akhtar AIR 1982 J & K 16 it has been held that the prescribed authority
under Section 52 is empowered to determine the price of timber extracted.
The State at that stage, should have amended the pleading and incorporated
the basis for the claim for the price of timber. But for reasons best known the
State merely took out an application under Order 41 Rule 27 to lead in
evidence. Of course, evidence could have been allowed if there were
pleadings to that effect. In this case, there was none. It is settled law that no
evidence can be let in without the pleading. The High Court was fully
justified in rejecting the application."
19. This Court in case of Abdul Jalil Vs. Jalil Beg and others: 2011
(7) ADJ 292 held in paragraph Nos. 11 and 12 as under:-
"11. Even though refusal to accept the written statement does not amount to
striking off the defence still defendant cannot be permitted to adduce
evidence for the reason that evidence can be adduced to prove the pleaded
facts and in the absence of pleading (W.S), this exercise will be futile. No
amount of evidence can be looked into unless there is corresponding
pleading for the same.
12. Accordingly, impugned orders permitting the tenant to adduce evidence
even though his written statement has been directed not to be taken on
record/accepted are erroneous in law and without jurisdiction."
20. In case of Chuni Lal Chowdhry Vs. Bank of Baroda and
others; AIR 1982 J& K 93 , Jammu and Kashmir High Court has held in
paragraph No. 3 as under:-
"3. 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."
21. In case of Siai Sinha Vs. Shivadhari Sinha and others; AIR
1972 Pat 81 , similar view has been taken by the Patna High Court.
22. In case of Sangram Singh Vs. Election Tribunal, Kotah and
others; (1955) 1 SCC 323 , the Hon'ble Supreme Court observed and
held that on setting aside the ex parte decree and on restoration of the

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suit, the parties to the suit shall be put to the same position as they were
at the time when ex parte judgment and decree were passed and the
defendant may not be permitted to file written statement as no written
statement was filed. However, at the same time, they can be permitted to
participate in the suit proceedings and cross-examine the witnesses.
23. In case of Modula India Vs. Kamakshya Singh Deo; 1988 (4)
SCC 619, the Supreme Court considered the scope and ambit of
participation in a suit or proceedings by the defendant whose defense is
struck off or who has not been permitted to file his written statement.
Paragraph Nos. 18, 19, 20, 21 and 22 of the judgment in case of Modula
India (supra) are quoted as under:-
"18. We agree that full effect should be given to the words that defence
against ejectment is struck off. But does this really deprive the defendant
tenant of further participation in the case in any manner? While it is true
that, in a broad sense, the right of defence takes in, within its canvass, all
aspects including the demolition of the plaintiff's case by the cross-
examination of his witnesses, it would be equally correct to say that the
cross-examination of the plaintiff's witnesses really constitutes a finishing
touch which completes the plaintiff's case. It is a well established
proposition that no oral testimony can be considered satisfactory or valid
unless it is tested by cross-examination. The mere statement of the plaintiff's
witnesses cannot constitute the plaintiff's evidence in the case unless and
until it is tested by cross- examination. The right of the defence to cross-
examine the plaintiff's witnesses can, therefore, be looked upon not as a
part of its own strategy of defence but rather as a requirement without
which the plaintiff's evidence cannot be acted upon. Looked at from this
point of view it should be possible to take the view that, though the defence
of the tenant has been struck out, there is nothing in law to preclude him
from demonstrating to the court that the plaintiff's witnesses are not
speaking the truth or that the evidence put forward by the plaintiff is not
sufficient to fulfill the terms of the statute.
19. To us it appears that the basic principle that where a plaintiff comes to
the court he must prove his case should not be whittled down even in a case
where no defendant appears. It will at once be clear that to say that the
Court can only do this by looking the plaintiff's evidence and pleadings
supplemented by such questions as the court may consider necessary and to
completely eliminate any type of assistance from the defendant in this task
will place the court under a great handicap in discovering the truth or
otherwise of the plaintiff's statements. For after all, the court on its own
motion, can do very little to ascertain the truth or otherwise of the plaintiff's
averments and it is only the opposite party that will be more familiar with
the detailed facts of a particular case and that can assist the court in

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pointing out defects, weaknesses, errors and inconsistencies of the
plaintiff's case.
20. We, therefore, think that the defendant should be allowed his right of
cross-examination and arguments. But we are equally clear that this right
should be subject to certain important safeguards. The first of these is that
the defendant cannot be allowed to lead his own evidence. None of the
observations or decisions cited have gone to the extent of suggesting that,
inspite of the fact that the defence has been struck off, the defendant can
adduce evidence of his own or try to substantiate his own case.
21. Secondly, there is force in the apprehension that if one permits cross-
examination of the plaintiff's witnesses by the defendant whose defence is
struck off, procedural chaos may result unless great case is exercised and
that it may be very difficult to keep the cross- examination within the limits
of the principles discussed earlier. Under the guise of cross-examination
and purported demolition of the plaintiff's case, the defendant may attempt
to put forward pleas of his own. To perceive quickly the difference between
questions put out to elicit a reply from the plaintiff which may derogate
from his own case and questions put out to substantiate pleas in defence
which the defendant may have in mind and to restrict the cross-examination
to its limits will be not an easy task. We think, however, that this is a
difficulty of procedure, rather than substance. As pointed out by Ramendra
Mohan Dutta, J. this is a matter to be sorted out in practical application
rather than by laying down a hard and fast rule of exclusion.
22. A third safeguard which we would like to impose is based on the
observations of this court in Sangram Singh's case. As pointed out therein,
the essence of the matter in all such cases is that the latitude that may be
extended by the court to the defendant inspite of his not having filed a
written statement, should not cause prejudice to the plaintiff. Where the
defendant does not file a written statement or where he does not appear to
contest the case the plaintiff proceeds on the basis that there is no real
opposition and contents himself by letting in just enough evidence to
establish a prima facie case. Therefore, the court should ensure that by
permitting the defendant at a later stage either to cross-examine the
witnesses or to participate in the proceeding the plaintiff is not taken by
surprise or gravely prejudiced. This difficulty however can be easily
overcome in practice, because there is a wide discretion with the court and
it is always open to the court, where it believes that the plaintiff has been
misled, to exercise its discretion to shut out cross-examination or to
regulate it in such manner as to avoid any real prejudice to the interests of
the plaintiff."
24. Very recently, Hon'ble Supreme Court in case of Kaushik
Narsinhbhai Patel and others Vs. M/S. S.J.R. Prime Corporation
Private Limited and others; (2024) 9 SCC 462 was considering the
effect of its earlier order dated 11.08.2021 (Annexure No. P-18) wherein
the Supreme Court permitted in a claim petition before the National
Consumer Redressal Forum to proceed without the written statement of
the respondent builder, but permitted the respondent builder to

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participate in the proceedings. In the aforesaid case, contention was
raised by the appellant that ignoring the order of Supreme Court dated
11.08.2021, National Consumer Disputes Redressal Commission
virtually permitted the respondent to introduce facts to dispute their
claims and complainants inasmuch as the opportunity offered to the first
respondent by National Consumer Dispute Redressal Commission to file
written submissions was utilized by the first respondent to introduce new
facts to resist their claim and contentions. Such newly introduced facts
and factors by the respondent through written submissions, obviously,
weighed with the National Consumer Disputes Redressal Commission in
ad opting the formula followed in the impugned order for the purpose of
computation of compensation payable to the complainants. Paragraph
Nos. 15 to 18 and 20 to 26 of Kaushik Narsinhbhai Patel (supra) are
quoted as under:-
"15. We will straight away verify the verity of the aforesaid contentions with
reference to Annexure P-18 order dated 11.08.2021, firstly, to see whether the
same was overreached and then, subject to its answer and consequences of
its defiance. A bare perusal of Annexure P-21, which is the written
submissions on behalf of the first respondent herein (opposite party therein)
filed before the NCDRC and marked as such in this proceeding, without any
peradventure would go to show that in and vide the said written submissions,
the first respondent had introduced some pleadings to resist the claims and
the contentions of the complainants in CC No.945 of 2019 and eventually, to
offer its explanation for the delay in handing over possession of the flats. The
raison d’etre for our remarks would be unravelled by a mere perusal of
Annexure P-21. Paragraph 3 thereof, opens thus: -
The complainants do not deserve any compensation as,” (emphasis supplied)
16. Thenceforth, under para 3 (i) to 3 (iii), the respondents gave the reasons
therefor. Through paragraph 4 of Annexure P-21, the respondent introduced
further reasons to support its stand that the complainants do not deserve
compensatory interest for the delay in handing over possession of flats. It is
to be noted that even after taking a stand at paragraph 5 thereof that there
was no delay at all from its part, the first respondent proceeded to explain the
delay in paragraph 6. The statements made in the further paragraphs of
Annexure P-21 also carry, either the case of the first respondent or its
explanations/reasons to counter the claim of the complainants. To put it
pithily, the first respondent, on being given the opportunity to file written
submission, made use of it to make good its failure to file a written statement
despite the fact that its right to file the same was declared as forfeited by this
Court.

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17. We are at a loss to understand as to how, such an opportunity could have
been utilised by the first respondent in defiance to the specific directions of
this Court under Annexure P-18 order and to file a written submission of
such a nature. Under Annexure P-18 order, this Court declared that the first
respondent had forfeited its right to file a written statement and then
permitted, rather, directed to proceed further without the written statement of
the first respondent-builder. True that even then its right to participate in the
proceedings was protected, presumably, taking into account the position of
law in that regard. We will deal with the scope of such permitted
participation as also the consequence of the act of defiance of Annexure P-18
order depending on its degree of defiance and its impact. In doing so, we will
have to keep reminded of the principle of law that what cannot be done
directly, cannot be done indirectly.
18. The discussion as above, would take us to the next question as to what is
the impact of forfeiture of opportunity to file written statement? We are fully
aware of the fact that all the provisions in the Code of Civil Procedure, 1908,
(for short ‘the CPC’) are not proprio vigore applicable to proceedings before
Consumer Forums created under the Consumer Protection Act, 2019, except
to the extent it is provided under Section 38 (9) of the Consumer Protection
Act. Be that as it may, in the absence of specific provisions dealing with the
consequence of forfeiture of the right to file a written statement, it is only
appropriate to refer to the provisions and positions dealing with such
situations in the CPC to know the general law on this question.
20. Thus, the position is that even if the defendant/opposite party failed to file
a written statement and, in that matter, even if forfeiture of the right to file
written statement has occasioned it would not disentitle that party from
participating in the further proceedings, without filing a written statement
and in such circumstances, the said party would also be having the right to
cross-examine the witness(es), if any, of the plaintiff/complainant. 21. In the
contextual situation, it is also appropriate to refer to Rule 1 & 2, Order VI of
the CPC which reads thus:-
“ Pleading. - “Pleading” shall mean the plaint or written statement.” Rule 2,
Order VI, in so far as, reads thus: -
“ 2. Pleading to state material facts and not evidence.--(1) Every pleading
shall contain, and contain only, a statement in a concise form of the material
facts on which the party pleading relies for his claim or defence, as the case
may be, but not the evidence by which they are to be proved.”
22. The rigour of the rule of pleadings is evident from Rule 7 of Order VI,
CPC, which mandates that:
"7. Departure-no pleading shall, except by way of amendment, raise any new
ground of claim or contain any allegation of fact inconsistent with the
previous pleadings of the party pleading the same" .
23. In the context of the aforesaid provisions under the CPC, it is apt to refer
to a decision of a Division Bench of the Karnataka High Court in Nalini
Sunder v. GV Sunder. It was held therein that a party could not make out a
case on the basis of evidence for which he/she has laid no foundation in the
pleadings. It is fairly settled that no amount of evidence can prove a case of a
party who had not set up the same in his/her pleadings, it was further held
therein.

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24. According to us, it is the correct proposition of law. In the absence of any
specific provisions dealing with non-filing of written statements/forfeiture of
the right to file a written statement, taking note of the general position as
above, it can only be held that it should bar the opposite party in a
proceeding before the Consumer Redressal Forums to bring in pleadings,
indirectly to introduce its/his case and evidence to support such case. In the
situations mentioned above, the right of the opposite party is confined to
participate in the proceedings without filing a written statement and to cross-
examine witness(es), if any, examined by the complainant(s).
25. It being the position of law, the first respondent who is bound by
Annexure P- 18 order could not have been permitted to introduce its case to
defend the case of the complainants through written submissions though it
was rightly permitted to participate in the proceedings. There is no case for
the first respondent that it sought permission to cross- examine Kaushik
Narsinhbhai Patel who filed affidavit of evidence and produced documentary
evidence. At any rate, no such case was put forth by the first respondent and
no grievance of denial of such opportunity was also raised.
26. In the circumstances expatiated above, in view of Annexure P-18 order
the reply and objection filed by the first respondent herein in this proceeding
also cannot be looked to the extent it carries pleadings relating its case, the
reasons and objections which could have been let in through a written
statement. In short, the first respondent could be permitted only to argue the
legal questions arising based on authorities and provisions of law as also
regarding lapses or laches and the consequential non-admissibility or
otherwise of evidence, let in by the appellants."
25. Learned counsel for the petitioner relied upon paragraph No. 15 of
the judgment in case of Pandit Gopicharan Bajpai (supra), which is
quoted as under:-
“15. As I have pointed out above, a party has the right to lead evidence on
the issues framed in the case even though there has been an order, earlier in
the case, to the effect that proceedings in the case would be ‘ex parte’,
provided of course there has not been an ‘ex parte’ decree already.”
26. I have perused the judgment passed by this Court in case of
Pandit Gopicharan Bajpai (supra). This Court was considering an order
passed by the trial court rejecting the application filed by the revisionist
for permitting him to file written statement. This Court allowed the
revision partly and permitted the defendant-revisionist for appearing at
the trial and leading evidence. Though, certain observations have been
made by this Court in the aforesaid judgment, but in view of the law laid
down by the Privy Council, the Supreme Court, this Court and various
other High Courts, I find myself unable to persuade to the contention
made by the petitioner that even where the defendant has been denied
the right to file written statement, can be permitted to lead evidence.

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Since there are no pleadings in case written statement is not filed by the
defendant, evidence cannot be led on the issues framed in absence of
pleadings.
27. In view of the discussions made above, I am of the view that court
below has not committed any illegality in rejecting the evidence filed by
the petitioner as the right to file written statement of the defendant was
closed and there was no pleading regarding the evidence sought to be
adduced by the petitioner. In this case, petitioner has been permitted to
cross-examine the witnesses adduced by the plaintiff and in my view,
beyond that, permission cannot be granted to the petitioner to lead
evidence for want of pleadings.
28. Accordingly, the petition fails and is dismissed .
(Manish Kumar Nigam,J.)
July 1, 2026
Nitika Sri.
Digitally signed by :-
NITIKA SRIVASTAVA
High Court of Judicature at Allahabad