Honble Mr. Justice T. Vaiphei

1. This appeal is directed against the judgment and order dated 1.03.2011 passed by the learned Senior Civil Judge-I, Aizawl District, Aizawl in Civil Suit No. 14 of 2008 decreeing the suit in favour of the respondent. The suit was filed by the respondent as a plaintiff against the State-appellants for payment of compensation not less than Rs. 6 lakhs to him for the damage/destruction caused to his land and building covered by Land Settlement Certificate No. 103702/01/1232 of 2007 and the movable and immovable properties including the crops standing thereon with pendente lite interest at the rate of 12 % per annum till actual realization of the decretal amount. The case of the respondent-plaintiff is that the State appellants i.e., Public Works Department had a plot of land just above his land and started constructing drain/ditch which extended up to his land in January, 2007 and that the purpose of the drainage system was for draining water from their said land during monsoon season. Sensing danger (landslide) likely to cause to his land because of the direct flow of drainage water from the land of the appellants to his land, he submitted a complaint/representation to the State appellants expressing his apprehension that there was likelihood of landslide being caused to his land due to construction of the said drainage thereby endangering his life and the lives of his family members and requesting them either to demolish their drain or to extent/lengthen the drainage system up to his land so as to prevent such landslide during rainy season. The Village Council and the Disaster Management also sent several representations to that effect, but to no effect. It is also the case of the respondent that as apprehended by him whenever monsoon season set in, there used to be heavy pouring of rain water from the drain of the State-appellants thereby causing crack in his land raising the possibility of landslide following suit. The respondent, with the help of his friends, used to fill up the cracked portion whenever required and also took preventive measures within his land. But however, the efforts made by him to this effect were proved to be futile. This compelled him to vacate his land and building, which was subsequently demolished. After the landslide occurred, Chairman of the Disaster Management Committee and President of Zonuam Village Council submitted a letter to the State appellants that construction of the drainage system by them was solely responsible for the landslide. The respondent also submitted report to the Deputy Commissioner, Aizawl to this effect. This prompted him to institute the suit in question for compensation/damages.

2. The State respondents through the learned counsel put in their appearance and were required to file the written statement on 28.04.2008. However, they failed to file the written statement for some time whereupon the trial court gave the last chance for filing the written statement and fixed 8.09.2008 for the same. When the State appellants still failed to file their written statement, the trial court proceeded with the case ex parte and directed the respondent to give his evidence. The trial court, however, subsequently decided no to take the evidence of the respondent and disposed of the suit under Order 8 Rule 5 (CPC) by pronouncing the judgment on the basis of the pleadings of the respondent and decreed the suit. Aggrieved by this, the State appellants are now filing this appeal.

3. Unfolding his arguments, Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram forcefully submits that the impugned judgment and order cannot be sustained in law inasmuch as no prima facie case was made out by the respondent to enable the trial court to at once pronounce the judgment and decree in favour of the respondent. It is his contention that the failure or refusal on the part of the appellants-defendants to file their written statement does not automatically entitle them to a decree under Order 8 Rule 5 (CPC) until and unless a prima facie case was made out by him by adducing sufficient evidence or otherwise. He, therefore, submits that the impugned judgment and order should not be allowed to stand and should be set aside. To buttress his contention, the learned Addl. Advocate General, Mizoram relies on the decision of the Division Bench of the Karnataka High Court in Karnataka Small Industries Marketing Corporation Industries Ltd. -vs- M/s Padma Textile, Bangalore reported in AIR 2007 Kar 172 (DB). Mr. B. Lalramenga, the learned counsel for the respondent, however, supports the impugned judgment and decree and submits that the decree was passed on the basis of adequate evidence, and the assessment of compensation made by the trial court is based on the evidence of the public officials such as Junior Engineer as counter-signed by the Executive Engineer, Public Works Department, Government of Mizoram and, as such, there is no reason to disbelieve the assessment of the value of the building made by the such public and responsible officials of the State Government. He also insists that this court give due weightage to the findings of the trial court which was made on the failure of the State appellants to file their written statement even after giving them sufficient opportunity to do so. Contending that the appeal is devoid of merits, he strenuously urges this court to dismiss the appeal.

4. Before proceeding further, it may be beneficial to reproduce hereunder the provisions of Order 8 Rule 5(2) of the Code of Civil Procedure:-

(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.

5. The above provision recognises a cardinal system of pleadings that every allegation of fact in a statement of claim or in a counter-claim must be traversed specifically, otherwise it can be deemed to be admitted. However, a mere omission to file a written statement does not amount to admission of fact stated in the claim. Order 8 Rule 5 (2) does not contemplate decreeing a suit irrespective of the merit of the case of the plaintiff: the court may refuse to pronounce the judgment at once and may require the plaintiff to adduce evidence to establish a prima facie case. If the pleadings in the plaint do not disclose a cause of action or does not even disclose a prima facie case, the plaintiff is not entitled to a decree. The fact that failure to file written statement does not automatically entitle a plaintiff to a decree is made evident by the Order VIII, Rule 5(2) itself when it says that the court may in its discretion require any such facts to be proved. Judging the instant case against the backdrop of the legal points noted above, I am not satisfied that the respondent was able to make out a prima facie case so as to entitle him to a decree. The trial court as evident from the impugned judgment did not have any material upon which it should come to the conclusion that the suit of the respondent deserved to be decreed. He did not even discuss the evidence on record produced by the respondent: he did not even disclose the manner in which he assessed value of the building of the respondent or the value of the plot over which the building stood or the principles upon which he decreed payment of compensation to the order of Rs. 6 lakhs. Without properly appreciating the case of the respondent, the decreed the suite as below:

(a) That the defendants are liable to pay compensation to the plaintiff for the damages caused to his land and properties.

(b) That the defendants are hereby directed and ordered to pay a compensation of Rs. 6,00,000/- (Rupees Six lakh) to the plaintiff within the period of 90 days from the date of this Judgment & Order.

(c) That the defendants are directed also to pay pendent lite interest @ 12% per annum to the plaintiff (computing with effect from the date of institution of the suit till final payment of the decretal amount to the plaintiff).

(d) That the defendants are directed to prevent the plaintiffs land covered under LSC No. 103702/01/1232 of 2007 from landslide and other detrimental incident which can be caused by the action of the defendants, by taking necessary action/s.

6. In other words, there was no evidence on record to show that the respondent was entitled to a compensation of Rs. 6 lakhs. There is no evidence to prove the value of the plot of land over which stood the building in question. The trial court was apparently swayed by the valuation of the building made by the Junior Engineer of the Mizoram Public Works Department, who never came forward before the court to prove such valuation. Nor was the valuation made in the discharge of his official duty, which alone can raise presumption of regularity of an official act under Sections 35 and 114(e) of the Evidence Act. In my judgment, the impugned judgment and order is arbitrary and is based on no evidence. In this view of the matter, I find considerable force in the submissions of the learned Addl. Advocate General, Mizoram. The impugned judgment and order is, therefore, not sustainable in law and is liable to be set aside for fresh trial as prayed for by the State-appellants. For the reasons stated in the foregoing, this appeal is allowed. The impugned judgment and decree dated 1.03.2011 is hereby set aside. The suit stands remanded to the Court of Senior Civil Judge-I, Aizawl District, Aizawl for fresh trial in accordance with law. The parties are directed to appear before the trial court on 14th May, 2012. The State respondents shall pay a cost of Rs. 3000/- to the respondents for not filing the written statement in time within a period of forty-five days from the date of receipt of this judgment. Nothing stated in the foregoing shall be construed as final observations on the merit of the case of the respondent, who is not precluded from proving or improve his case by adducing more evidence in the course of trial as the suit is remanded for fresh trial on the prayer of the State-appellants. All that I said in the foregoing is that a prima facie case was yet to be established by the respondent to entitle him to an ex-parte decree.