kbp 1 2808-09(JUDGMENT).sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2808 OF 2009 IN SUIT NO.4633 OF 1997 Haroon Zamir Ahmed ..Plaintiff Vs. M/s.S.B.Consultants and ors. ..Defendants ......... Miss.Bhavana Shah, for plaintiff. Mr.R.M.Haridas, for defendant nos.1 and 2. ......... CORAM : A.S.OKA, J.. DATE : 30th November, 2009. JUDGMENT:- 1] I have heard the learned counsel appearing for the first defendant in support of the notice of motion. I have heard the learned counsel appearing for the plaintiff who has opposed the notice of motion. The prayer made in this notice of motion is for setting aside the ex-parte decree dated 8th July 2009 passed in the suit. 2] The decree passed in the suit is for possession of two industrial galas. The said decree has been passed on 8 th July 2009. The present notice of motion has been taken out on 3 rd August 2009. The Counsel appearing for the plaintiff has raised a preliminary objection that this notice of motion taken out under the kbp 2 2808-09(JUDGMENT).sxw provisions of rule 13 of Order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said code") is not maintainable on the ground that the decree has been passed in exercise of powers under rule 5 or rule 10 of order VIII the said code. It is submitted that the decree cannot be termed as an ex-parte decree. 3] The learned it counsel appearing for the first defendant in support of the notice of motion contended that the decree is an ex-parte decree in as much as an affidavit in lieu of examination- in- chief has been filed by the plaintiff. He submitted that the decree has not been passed only on the ground of default of the first defendant in filing written statement, but the decree has been passed after calling upon the plaintiff to lead evidence and after considering the oral and documentary evidence adduced by the plaintiff. He relied upon several decisions. He submitted that the reasons for absence of the first defendant have been set out in the affidavit in support. He submitted that the notice of motion has been taken out within the stipulated period of limitation. He submitted that the notice of motion be made absolute. 4] The learned counsel appearing for the plaintiff submitted the decree has not been passed under order IX of the said code. She relied upon a decision of a division bench of this Court in the case of Dhanwantrai R. Doshi versus Satish J. Dave and others (1998[4] All MR 509) . She also relied upon a decision of the Apex Court in the case of Balaraj Taneja versus Sunil Madan and another(AIR kbp 3 2808-09(JUDGMENT).sxw 1999 Supreme Court 3381 ). She submitted that the decree has not been passed under rule 6 of order IX of the said code. She submitted that assuming that the decree is passed under rule 6 of order IX of the said code, sufficient cause for the absence of the first defendant is not at all made out. She submitted that the first defendant was duly served with a writ of summons. She submitted that one Mrs. Savithri Narayan has filed an affidavit in support in the capacity as a partner of the first defendant firm, and in the said affidavit the only ground is of the sickness of her husband. She submitted that the said partner could have herself taken steps to defend the suit. She pointed out that as long back as on 14th December 2005, the Prothonotary and Senior master passed an order directing that the suit should be transferred to the list of undefended suits. Thereafter there were several opportunities for the first defendant to file written statement. She submitted that no sufficient cause was made out by the first defendant and therefore, notice of motion deserves to be dismissed. 5] The first question to be decided is as regards the nature of the decree. It will have to be be ascertained whether the decree is under rule 5 or rule 10 of order VIII of the said code. The perusal of the record shows that the suit appeared before the Prothonotary and Senior master on 14 th December 2005. On that day an order was passed for transferring the suit to the list of "undefended suits". Thereafter, the suit was placed on board of this Court on 6th July 2009. The order sheet of the said date reads thus: kbp 4 2808-09(JUDGMENT).sxw "Called u/s for Ex-parte decree. Ms. Bhavana Shah for Plaintiffs None for Def. P.C stand over to tomorrow i.e. 7-7-09" As stated earlier ,a decree has been passed by this Court on 8 th July 2009. The judgment in the suit shows that this Court has referred to the averments made in the plaint. In paragraph 7 of the judgment, this court has noted that the plaintiff has filed an affidavit in lieu of examination-in-chief and original documents. In paragraph 7 of the judgment, this court has observed that the affidavit in lieu of examination-in-chief contains a recital of the facts narrated in the earlier part of the judgment. This Court further observed that in absence of any contest by the defendants, the facts as pleaded have remained uncontroverted. Thereafter, this Court referred to documents forming part of compilation of documents. This Court referred to the rent receipts in respect of the suit premises ,the original passbook of the plaintiff, a certified copy of the deed assignment dated 19 th February 1981 and other documents. Thereafter, this Court proceeded to observe that the first defendant has failed to establish any right, title or interest either by way of tenancy or otherwise to continue to remain suit premises. Thereafter the court proceeded to pass a decree. 6] The learned counsel appearing for the plaintiff has relied upon a decision of a division bench in the case of Dhanwantrai (supra). This Court in the said kbp 5 2808-09(JUDGMENT).sxw decision has held that for attracting rule 9 of order IX of the said Code, the decree has to be passed following the provision of rule 6 of order IX of the said code. This Court observed in paragraph 12 of the judgment that scheme of rule 5 or 10 of order VIII and the scheme of order IX operate in different fields. This Court observed that if the defendant fails to file written statement as contemplated in the rule 5 of order VIII, the Court may pronounce judgement on the basis of the facts contained in the plaint or the Court may in its discretion, require such facts to be proved. This court further observed that if a party from whom a written statement is required under order VIII rule 10, fails to present the same within the time fixed by the Court, the Court is entitled to pronounce judgement against such a party, or make such order in relation to the suit as it thinks fit. This court observed that such decrees pronounced on non-filing of written statement cannot be considered to be an ex-parte decree as contemplated under order IX of the said code in as much as such decrees are passed because of failure to file written statement. In paragraph 13 of the judgement, this Court observed that the procedure under Order IX is different. If the defendant fails to appear on the date of hearing , the Court is required to pass an order under rule 6 thereof that the suit be heard ex-parte and thereafter to proceed further with the hearing of the suit. This requires recording of evidence. After recording evidence of the parties, the Court can pronounce a judgment on the basis of the evidence which is brought by the plaintiff. In such kbp 6 2808-09(JUDGMENT).sxw cases, the suit is not disposed of as provided under rule 5 or rule 10 of order VIII of the said code. 7] Now it will be necessary to consider the provisions of order IX of the said code. Rule 6 deals with a situation where the plaintiff appears and the defendant does not appear when the suit is called on hearing. It is further provided in rule 6 that if it is found that suit summons is duly served, the Court may make an order that the suit be heard ex-parte. 8] It is true that on 14th December 2005 , the learned Prothonotary and Senior master directed that the suit be transferred to the list of undefended suits. The question is whether thereafter this Court has passed a decree by following rule 6 of order IX of the said code or whether this Court has passed a decree on the basis of the failure to file the written statement in accordance with rule 5 or rule 10 order VIII of the said code. Following important factual aspects must be noted: (i) The order sheet shows that on 6th July 2009 the suit was called out for “ex-parte decree”. (ii) The plaintiff was permitted to file an affidavit in lieu of examination-in- chief and original documents. (iii) In the judgment , this Court has considered the case made out in the affidavit in lieu of examination-in-chief. This Court has extensively referred to the documents produced by the plaintiff. kbp 7 2808-09(JUDGMENT).sxw (iv)After considering the affidavit and the documents it is observed that the first defendant has failed to establish any right, title or interest to continue to remain in possession of the suit premises. Thus, the decree has not been passed on the ground of the failure to file written statement. This Court allowed the plaintiff to file an affidavit in lieu of examination-in- chief. This Court has considered the affidavit and the original documents filed by the plaintiff. Thereafter a finding has been recorded that the first defendant has failed to establish any right, title or interest. Thus it is crystal clear that this Court has taken a recourse to rule 6 of order IX of the said code. Therefore, the present notice of motion is maintainable. 9] The decree has been passed on 8th July 2009. The present notice of motion has been taken out on 3 rd August 2009. Thus there is no delay in filing the notice of motion and the same has been filed within limitation. It must be noted here that by order dated 28th April 2009, the chamber summons taken out by the plaintiff was made absolute and the plaintiff was permitted to bring on record the legal representatives of the third defendant. In the affidavit in support of the notice of motion, the partner of the first defendant has stated that amended plaint was served to her advocate in the last week of June 2009. She stated the copy of the plaint was incomplete. She stated that thereafter she started searching for an advocate as the advocate engaged by her was only for the purposes of kbp 8 2808-09(JUDGMENT).sxw hearing of the notice of motion for interim relief. She stated that as per the interim order of this Court first defendant has been regularly depositing the compensation amount. She stated that as she was served with an incomplete copy of the amended plaint, her advocate addressed a letter dated 20 th July 2009 to the advocate for plaintiff intimating that the copies of the documents have not been annexed to the copy of the plaint. The advocate for plaintiff issued a reply dated 29 th July 2009 in which the fact that a decree has been passed was pointed out. The advocate representing the first defendant informed the first defendant in the last week of July 2009 that the decree has been passed. The partner of the first defendant has stated that she was under a wrong impression that the written statement has been already filed. She has shown the willingness to immediately file the written statement. She stated she was regularly depositing the compensation amount as per the interim order of this Court which shows the intention to contest the suit. In the affidavit it is stated that her husband used to look after the business of the first defendant. She stated that her husband has been a patient of cancer since the year 1998 and is also suffering from kidney and heart ailments. She stated that he is required to move by a wheel chair. She stated she is a housewife. Several documents showing the condition of the health of her husband have been annexed to the affidavit in support. The said documents are from the year 2007 onwards which show that the husband of the deponent was hospitalised from time to time. kbp 9 2808-09(JUDGMENT).sxw 10] In the reply filed by the plaintiff, it is denied that an incomplete copy of the plaint was served to the advocate for the first defendant. The plaintiff has denied material averments in the affidavit of the partner of the first defendant. The aforesaid averments in the affidavit of the partner of the first defendant are required to be appreciated in the context of the fact that the notice of motion for setting aside ex-parte decree has been filed within limitation. It must be noted here that after 14th December 2005 , the suit was placed on board on 6 July 2009 and decree has been passed on 8 th July 2009. In March and April 2009 , a chamber summons taken out in the suit by the plaintiff was placed on board. Considering the assertions in the affidavit in support of the notice of motion , a sufficient cause is made out for setting aside the ex-parte decree. The prejudice which may be caused to the plaintiff can be compensated by directing the first defendant to pay costs quantified at RS 15,000/-. As a result of setting aside the ex-parte decree , the interim order operating in the suit stands restored. Hence, I pass following order: (1) Notice of Motion is made absolute in terms of prayer clause (a) subject to the first defendant paying costs of Rs.15,000/- to the plaintiff within a period of six weeks from today. (2) The payment of costs will be condition precedent. ( A.S.OKA, J. )