MANU/WB/0301/2020

IN THE HIGH COURT OF CALCUTTA

MAT 1332 of 2019, CAN 10554 of 2019 and CAN 12158 of 2019
Decided On: 21.02.2020
Appellants: Secretary, Bairgachi High School
Vs.
Respondent: State of West Bengal and Ors.
Hon'ble Judges/Coram:
Dr. Sambuddha Chakrabarti and Hiranmay Bhattacharyya, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Indranil Roy and Sunit Kumar Roy, Advocates
For Respondents/Defendant: Kamalesh Bhattacharjee and Bidhan Biswas, Advocates
JUDGMENT
Hiranmay Bhattacharyya, J.
1. At the time of hearing of the application for stay it appeared to us that the instant
appeal can be disposed of only on a point of law and as such we invited the learned
Advocates for the respective parties to address us on the merits of the appeal by
treating the appeal as on the day's list with the consent of the parties.
2 . The short question which falls for determination in the instant appeal is whether
on deemed admission a mandamus can automatically be issued by a Writ Court
exercising the powers of judicial review against a decision of an administrative
authority.
3 . In every action, the party against whom an action is brought has a right of
defence. Such right of defence is recognised by the statutes. They also regulate the
mode and time within which the statement of defence is to be presented. The time
limit for filing of the statement of defence have also been fixed by the statutes. The
courts may also upon being satisfied with the sufficiency of the cause shown by a
party permit a party to present the statement of defence after expiry of the time limit
by way of extension of time fixed by the statute. A party has a right to defend himself
in an action, but the exercise of such right depends upon the choice of such party. A
party to a litigation may choose either to file a statement of defence or not. A court
cannot compel a party to file his statement of defence. In case a party against whom
an action is brought does not appear or even after appearance chooses not to file a
statement of defence, the Court is not denuded of its power to decide the fate of the
proceeding ex parte on the basis of materials available on record.
4. The Secretary and Headmaster of Bairgachi High School being respondent Nos. 4
and 5 in the writ petition being WP No. 37406 (W) of 2013 have preferred the instant
appeal challenging the order dated August 8, 2019 passed by a Learned Single Judge
of this court whereby it was directed that a judgment be entered in favour of the writ
petitioner on admission in terms of prayer (a), (b) and (c) of the writ petition. The
order impugned in the writ petition rejecting the prayer for approval of the writ
petitioner's service was also quashed on admission. Direction was also passed to

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 issue release order in favour of the writ petitioner and the respondent authorities
were directed to accord approval to the appointment of the writ petitioner as
Headmaster of Bairgachi High School. The salary and the other allowances of the writ
petitioner was also directed to be paid within the time limit as stipulated in the said
order.
5 . The facts as stated in the writ petition which are relevant for the purpose of
disposal of the instant appeal is summarised hereunder as follows.
6 . Pursuant to the recommendation made by the concerned School Service
Commission, the writ petitioner/respondent No. 7 joined Bairgachi High School as
Headmaster. Since the concerned District Inspector of Schools did not take any steps
for according approval of appointment of the writ petitioner as Headmaster of the
said school, he filed a writ petition being WP No. 16708 (W) of 2010 before this
court. The said writ petition was disposed of by an order dated August 13, 2010
directing the concerned District Inspector to act in terms of the said order. The
District Inspector of Schools rejected his prayer to accord approval as Headmaster of
the said school which was communicated to him vide a letter being Memo No.
1329/1(4) SE/G dated September 27, 2010 being Annexure P7 to the writ petition.
The secretary of the said school by a letter dated October 12, 2010 being Annexure
P11 to the writ petition, informed the writ petitioner that the letter of his appointment
as headmaster of the said school has been withdrawn in view of the order passed by
the concerned District Inspector. He challenged the order dated September 27, 2010
passed by the concerned District Inspector by filing a writ petition being WP No.
25535 (W) of 2010 which was subsequently dismissed for non-prosecution on May
20, 2011. The writ petitioner filed the instant writ petition praying for issuing a writ
in the nature of a mandamus commanding the respondents to rescind and cancel the
Memo dated September 27, 2010 and the letter dated October 12, 2010. There was
also a prayer for mandamus directing the respondent Nos. 4 and 5, i.e. the
authorities of Bairgachi High School to allow the writ petitioner to rejoin as the
headmaster of Bairgachi High School and to direct the concerned District Inspector of
schools to accord approval of appointment of the writ petitioner as the headmaster
and to pay the salary and allowances as headmaster. The writ petitioner further
prayed for issuing a mandamus commanding the respondent Nos. 6 and 7 i.e. the
authorities of Khanpur High Madrasah to release the writ petitioner for joining as the
headmaster of Bairgachi High School and to issue necessary release order.
7 . We have heard Mr. Roy the learned advocate for the appellant and Mr.
Bhattacharya the learned advocate for the writ petitioner/respondent No. 7 and have
considered the materials on record.
8. Mr. Roy submitted that the writ petitioner suppressed material facts regarding the
lodging of FIR before Hare Street Police Station for tampering of certified copy of the
order of the Hon'ble High Court dated August 13, 2010 and the pendency of the
criminal case before the 5th Metropolitan Magistrate, Kolkata. He further submitted
that if the pendency of the criminal proceedings and the facts leading thereto would
have been disclosed before the Hon'ble High Court at the time of hearing of the
connected writ petition the order impugned in the appeal might not have been passed
by the learned single judge. He also submitted that the instant writ petition was not
maintainable as the earlier writ petition filed on the self same cause of action was
dismissed for non-prosecution without any liberty to file afresh.
9 . Mr. Bhattacharya submitted that by an order dated September 15, 2014 the

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 Learned Single Judge granted an opportunity to the respondents in the writ petition
to file their affidavits-in-opposition. The respondents did not file any affidavit-in-
opposition. Time to file such affidavit expired in 2014. Even at the time when the
instant writ petition was taken up for hearing none appeared to oppose the writ
petition. He submitted that since the statements made in the writ petition remained
uncontroverted due to non-filing of affidavit-in-opposition by the respondents such
statements shall be taken to be admitted and the learned judge was perfectly justified
by passing a judgment on admission in the instant case.
10. We have gone through the impugned order passed by the learned single judge.
Upon going through the said order we are satisfied that the learned single judge had
reasons to feel aggrieved by the conduct of the appellant herein for not filing the
affidavit-in-opposition to the writ petition. The appellant also did not turn up to
oppose the writ petition when the writ petition was taken up for hearing. The learned
single judge had no other alternative but to take up the hearing of the writ petition ex
parte.
11. In the instant appeal we cannot take into consideration the materials which were
not placed before the learned single judge. We have to confine our scrutiny to the
materials available on record before the learned single judge and decide whether a
judgment on admission could have been passed on the facts made out by the writ
petitioner in the writ petition.
12. Before examining whether the instant writ petition could have been decided on
the basis of admissions, let us first recapitulate the provisions of the Code of Civil
Procedure (for short "the Code") in this regard.
13. Sub rule 1 of Rule 5 of Order 8 of the Code provides that every allegation of fact
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. Proviso thereto states
that the court may in its discretion require any fact so admitted to be proved
otherwise than by such admission.
14. Sub rule 2 of Rule 5 of order 8 of the Code provides that where a 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, but the court may, in its discretion, require
any such fact to be proved.
15. Sub rule 2 of rule 5 of order 8 enables the court to pronounce the judgment on
the basis of facts contained in the plaint. In a case where the defendant has not filed
a written statement the court still has the discretion to require such fact to be proved
by the plaintiff.
16. Order 8 Rule 10 of the Code provides that where a party fails to present the
written statement within the time permitted or fixed by the court, the court shall
pronounce judgment against him or make such order in relation to the suit.
17. The words "or make such order in relation to the suit as it thinks fit" are of
immense significance inasmuch as they also allow the court to exercise its discretion
not to pronounce judgment against the defendant and instead pass such order as it
may think fit in relation to the suit.
1 8 . Order 12 Rule 6 of the Code enables a court to pronounce judgment on
admissions. It has been provided that where admissions of fact have been made

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 either in the pleading or otherwise, whether orally or in writing, the court may at any
stage of the suit, either on the application of any party or of its own motion and
without waiting for the determination of any other question between the parties make
such order or give such judgment as it may think fit having regard to such
admissions.
19. The Hon'ble Supreme Court in the case of Balraj Taneja and another v. Sunil
Madan and another reported at MANU/SC/0551/1999 : (1999) 8 SCC 396 after
considering the objects and reasons of the Code of Civil Procedure (Amendment Act
1976) held that under Order 12 Rule 6 the court can at an interlocutory stage of the
proceedings pass a judgment on the basis of admissions made by the defendant. But
before the court can act upon the admissions it has to be shown that the admission is
unequivocal, clear and positive. It was further held therein that Order 12 Rule 6 has
to be read with the proviso to Rule 5 of Order 8. Thus, inspite of an admission of the
fact having been made by a party to the suit, the court may still require the plaintiff
to prove the fact which has been admitted by the defendant.
20. The Hon'ble Supreme Court in Balraj Taneja (supra) held thus
"29. As pointed out earlier, the court has not to act blindly upon the
admission of a fact made by the defendant in his written statement nor
should the court proceed to pass judgment blindly merely because a written
statement has not been filed by the defendant traversing the facts set out by
the plaintiff in the plaint filed in the court. In a case, specially where a
written statement has not been filed by the defendant, the court should be a
little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the
judgment against the defendant it must see to it that even if the facts set out
in the plaint are treated to have been admitted, a judgment could possibly be
passed in favour of the plaintiff without requiring him to prove any fact
mentioned in the plaint. It is a matter of the court's satisfaction and,
therefore, only on being satisfied that there is no fact which need be proved
on account of deemed admission, the court can conveniently pass a judgment
against the defendant who has not filed the written statement. But if the
plaint itself indicates that there are disputed questions of fact involved in the
case regarding which two different versions are set out in the plaint itself it
would not be safe for the court to pass a judgment without requiring the
plaintiff to prove the facts so as to settle the factual controversy. Such a case
would be covered by the expression "the court may, in its discretion, require
any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the
expression "may make such order in relation to the suit as it thinks fit" used
in Rule 10 of Order 8."
21. The Hon'ble Supreme Court in the case of Shantilal Gulab Chand Mutha v. Tata
Engineering and Locomotive Company Limited and another reported at
MANU/SC/0270/2013 : (2013) 4 SCC 396 held that it is a settled legal proposition
that the relief under Order 8 Rule 10 of the Code is discretionary and the court has to
be more cautious while exercising such power where the defendant fails to file the
written statement. Even in such circumstances the court must be satisfied that there
is no fact which needs to be proved inspite of deemed admission by the defendant.
2 2 . Thus, the court also has a discretion not to pronounce judgment against the
defendant on deemed admission. The court can pass a judgment on account of
deemed admission against a party who has not filed the statement of defence only

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 after being satisfied that there is no fact which needs to be proved on account of such
admission.
23. Now let us consider as to whether the aforesaid provisions of the Code of Civil
Procedure regarding the power of the Court to pass a decree on deemed admission
can be made applicable to a proceeding under Article 226 of the Constitution of India.
24. Section 141 of the Code envisages that the procedure provided in the Code in
regard to suits shall be followed, as far as it can be made applicable, in all
proceedings in any court of civil jurisdiction. The explanation to Section 141 of the
Code, however, excludes the operation of the procedure provided in the Code to writ
proceedings. Rule 53 of the Rules relating to the applications under Article 226 of the
Constitution of India framed by the Calcutta High Court provides that save and except
as provided in the said rules and subject thereto the provisions of the Code of Civil
Procedure in regard to suits shall be followed, as far as it can be made applicable, in
all proceedings under Article 226.
2 5 . The Code of Civil Procedure accordingly ipso facto has no applicability to a
proceeding under Article 226 of the Constitution of India but in view of incorporation
of the Civil Procedure Code in Rule 53 of the rules relating to Article 226 of the
Constitution of India, the provisions of the Civil Procedure Code has been brought
within the ambit of a proceeding under Article 226 of the Constitution of India.
2 6 . The said rules framed by the High Court do not provide for any procedure
relating to passing a judgment on admission. Therefore, as far as it can be made
applicable, the provisions of the Civil Procedure Code with regard to judgment on
admission would apply in principle to a writ proceeding.
27. That takes us to the consideration whether the learned single judge was justified
in allowing the writ petition on the principle of admission by applying the principles
laid down in the aforesaid provisions of the Code relating to admission.
28. Mandamus is a discretionary remedy. It is evident from the statements made in
the writ petition that the first writ petition challenging the Memo dated September 27,
2010 was dismissed for non-prosecution. The writ petitioner has also prayed for
quashing of the said memo in the instant writ petition. The learned judge prior to
issuing mandamus ought to have required the petitioner to prove the fact that the
instant writ petition was maintainable after dismissal of the earlier one for non-
prosecution before proceeding to allow the same on the basis of admissions as the
court assumes jurisdiction to decide a case on merit after being satisfied with its
maintainability. Even in case of deemed admissions the learned judge before passing
an order on admission has to be satisfied that nothing further remains to be proved.
29. It is now well settled that a High Court while exercising powers of judicial review
under Article 226 of the Constitution of India does not act as an appellate authority.
Its jurisdiction is circumscribed and confined to correcting errors of law or procedural
errors resulting in manifest miscarriage of justice or violation of principles of natural
justice.
3 0 . It is equally well settled that there should be restrain while making judicial
review in administrative matters. The Hon'ble Supreme Court of India in the case of
Union of India and others v. Flight Cadet Ashish Rai reported at MANU/SC/0311/2006
: 2006 (2) SCC 364 held that where irrelevant aspects have been eschewed from
consideration and no relevant aspect has been ignored and the administrative

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 decisions have nexus with the facts on record, there is no scope for interference. The
duty of the court is (a) to confine itself to the action of illegality; (b) to decide where
the decision making authority exceeded its powers; (c) committed an error of law;
(d) committed breach of the rules of natural justice and (e) reached the decision
which no reasonable tribunal would have reached or (f) abused its powers.
31. Memo dated 27th September, 2010 is the order passed by the concerned District
Inspector giving the reasons for not according approval to the writ petitioner as
headmaster of Bairgachi High School. The said Memo is the subject matter of
challenge in the instant writ petition. Even in a case where the respondents have not
filed any affidavit-in-opposition but a decision of an authority is under challenge in
the writ petition, the learned Single Judge exercising his powers of judicial review
against such a decision ought to have returned a finding as to why the decision of the
authority cannot be sustained in the eye of law by applying the settled legal tests for
Judicial Review when the decision of the authority is on record. In such a case the
writ court before passing a judgment against respondents must ensure that even if
the facts set out in the writ petition are treated to have been admitted, an order could
possibly be passed in favour of the writ petitioner without requiring him to prove any
fact stated in the writ petition.
3 2 . In the light of the observations made hereinabove we hold that merely on
deemed admission a mandamus cannot be automatically issued by a Writ Court
exercising the powers of judicial review against a decision of an administrative
authority.
33. Thus, we are of the view that the Learned Single Judge erred in law by issuing a
Mandamus applying the principle of deemed admission in the facts of the instant
case.
34. The order impugned also suffers from a vital defect. The court must give reasons
for passing a judgment even in a case where the court is satisfied that there is no fact
which needs to be proved because of deemed admission by the respondents to the
writ petition. The reasons may be short but by reading the judgment a party must
understand the facts and circumstances on the basis of which the court has
proceeded and under what reasoning the writ petition was allowed. The whole
process of reasoning has to be set out for deciding the writ petition one way or the
other. The impugned order also suffers from such infirmity and for that reason also
the same cannot be sustained.
35. It appears from the record that the copy of the order dated May 20, 2011 passed
in WP No. 25535 (W) of 2010 was not annexed to the said writ petition. It also does
not appear from the impugned order that the same was produced before the learned
Single Judge at the time of hearing of the writ petition. No copy of the writ petition
being WP No. 25535 (W) of 2010 was also produced before the learned Single Judge.
Thus, we are of the view that the materials produced by the writ petitioner before the
Writ Court was not sufficient for the learned judge to arrive at a decision on the point
of maintainability of the instant writ petition. It further appears from the statements
made in the writ petition that this case had a chequered history. The issue as to
maintainability goes to the root of the matter. The point of maintainability is to be
decided before proceeding to adjudicate a writ petition on merits.
36. It is no doubt true that a party who has not availed himself of the opportunity to
contest the writ petition by filing an affidavit-in-opposition cannot be given a

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 premium only because he has filed an appeal and has prayed for a de novo hearing.
To this general rule an exception has to be made in the present case. Since the writ
petitioner has not produced relevant materials before the learned Single Judge and
over and above that the issue of maintainability is involved, an opportunity should be
granted to the respondents to the writ petition to contest the instant writ petition by
filing affidavit-in-opposition.
3 7 . For the reasons as aforesaid, the judgment and order dated August 8, 2019
passed by the learned Single Judge is set aside and the writ petition is remanded to
the learned Single Judge having determination over this matter to decide the same
afresh.
38. Liberty is granted to the appellant and the other respondents to the writ petition
to file affidavit-in-opposition within a period of 4 weeks from the date of this
judgment; reply thereto, if any, be filed by the writ petitioner/respondent No. 7
herein within 2 weeks thereafter. The learned Single Judge is requested to take up
the writ petition for hearing after the time limit for exchange of affidavits is over.
Since the writ petition is of the year 2013, we request the learned Single Judge to
decide the instant writ petition as expeditiously as possible. The appellant and the
respondent No. 7 herein are directed to communicate this order to the non-appearing
respondents forthwith.
3 9 . Before parting we make it clear that we have not decided the issue of
maintainability of the instant writ petition and the same is kept open to be decided by
the learned Single Judge.
40. The instant appeal being MAT No. 1332 of 2019 is allowed without however any
order as to costs.
41. With the disposal of the instant appeal, the connected applications being CAN
10554 of 2019 and CAN 12158 of 2019 have become infructuous and the same are
also disposed of accordingly.
Dr. Sambuddha Chakrabarti, J.
I agree.
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