Defendant Cannot Lead Evidence After Forfeiting Right To File Written Statement: Allahabad High Court

The Allahabad High Court has held that a defendant whose right to file a written statement has been closed, cannot be permitted to lead his own evidence, since evidence can be led only to prove facts that have been pleaded and, in the absence of a written statement, there are no pleadings to support it.

The Court held that such a defendant is not shut out of the trial altogether, he may still cross-examine the plaintiff's witnesses and argue on the basis of the plaint and the plaintiff's evidence, but he cannot lead independent evidence of his own.

Justice Manish Kumar Nigam held,

“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..”

Plaintiff instituted a suit before the Additional District Judge, Ghaziabad, for specific performance of an agreement to sell dated 20.04.2017. Defendant entered appearance but did not file his written statement within the period prescribed under Order VIII Rule 1 CPC. Even after being granted a further opportunity, he did not file it, and his right to file the written statement was closed.

Defendant's counsel cross-examined the plaintiff's witnesses and thereafter, filed an affidavit under Order XVIII Rule 4 CPC, along with a list of witnesses, to lead his own evidence. Plaintiff objected that the defendant's right to file the written statement having been closed, he had no right to lead independent evidence. The Trial Court allowed the objection and returned the defendant's evidence affidavit, closing his right to lead evidence. The defendant challenged this order before the High Court under Article 227.

The Court observed that a defendant who has not filed a written statement may participate in the proceedings and cross-examine the plaintiff's witnesses, but held that whether this extended to leading his own evidence had to be tested against the provisions governing pleadings.

Noting that under Order VI pleadings mean the plaint or written statement where parties must state the material facts on which it relies but not the evidence by which they are to be proved, the Court held that where there is no written statement, there are no pleadings, and evidence cannot be led on facts that have not been pleaded.

“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.”

The Court relied on the Supreme Court's decision in Modula India v. Kamakshya Singh Deo, where it was held that a defendant whose defence is struck off may cross-examine the plaintiff's witnesses and address arguments but cannot be allowed to lead his own evidence.

It further relied on Kaushik Narsinhbhai Patel v. S.J.R. Prime Corporation Pvt. Ltd., where the Supreme Court held that a party who has forfeited the right to file a written statement may participate and cross-examine but cannot indirectly introduce its own case or evidence.

“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.”

Accordingly, the Court dismissed the petition.

Case Title: Satish Gupta v. Praveen Kumar Singhal

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