1 fa781.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.781 OF 2008 Jyotsna Parsottam Mehta & Anr. ...Appellants Vs. Sudhirkumar Bhaidas ...Respondent Mr.P.M.Shah for the appellant Mr.B.Janardanan for the respondent CORAM: A.S.OKA,J. DATE: MAY 5, 2011 JUDGMENT: 1 In view of the directions of the Apex Court, the appeal was taken up for final disposal. Submissions were heard from time to time. With a view to find out amicable solution, Judgment was not delivered earlier. However, no settlement could be arrived at. Hence, I proceed to deliver the Judgment. 2 The appellants are the defendants and the respondent is the plaintiff. The challenge in this appeal is to the Judgment and decree dated 11th March 2004 passed by the Civil Judge (Senior Division), Diu. 3 The respondent-plaintiff filed a suit for possession of the residential house bearing No.92/42 more particularly described in the plaint. The said house is a three storied building. The case made out by the respondent is that one Bhaidas had two sons. The respondent is one of the two sons. The respondent stated that his mother died in the year 1991. It is stated in the suit that one Purshottamdas Ramniklal Mehta was a 2 fa781.sxw friend of Ramniklal Bhaidas who is the brother of the respondent. According to the case of the respondent, the suit house was entrusted to the said Purshottamdas to carry out repairs and to reside therein free of charge. According to the case of the respondent, the said Purshottamdas and his family members were residing as licensees in the suit house from the year 1980. The said Purshottamdas expired and the appellants-defendants are his legal representatives. Reliance is placed on notice dated 21st June 1989 by which the respondent called upon the appellants to vacate the suit house. In the reply to the notice dated 12th July 1989, the appellants contended that the respondent s brother Ramniklal and mother Narmadabai had executed an agreement of sale in respect of the suit house. Moreover, it was contended that the said Purushottamdas was a tenant in respect of the suit house and was paying monthly rent at the rate of Rs.50/-. 4 After service of the suit summons, the appellants appeared through Shri R.D.Acharya, Advocate. The trial Court passed an order on 10th June 2002 to proceed with the suit without written statement. The respondent filed his own affidavit and affidavits of two other witnesses and produced documents. Thereafter, trial Court proceeded to pass the impugned decree. 5 The learned counsel for the appellants submitted that an application filed before the trial Court for setting aside the said decree has failed as the decree was not passed under Rule 13 of Order IX of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). He pointed out that the appellants had engaged and instructed an Advocate who did not bother to attend to the suit. He stated that the appellants were not aware about the death of their Advocate. He pointed out 3 fa781.sxw the affidavit of the son of the Advocate which was filed on record of the application for setting aside the ex- parte decree in which the son of the Advocate has stated that his father had started forgetting things due to loss of memory and old age. He submitted that due to deterioration of his health, he did not appear in the matter prior to his death. He submitted that the impugned Judgment is non speaking Judgment as no reasons have been assigned. 5 The learned counsel for the respondent submitted that the suit was pending from the year 2000 and till today, the appellants are occupying the suit house consisting three floors without payment of a single farthing. He submitted that the appellants have no defence and on the basis of the affidavits in lieu of evidence filed by the respondent and documents on record, the trial Court has passed a decree for possession. He submitted that there is nothing on record to substantiate the case made out by the appellants as regards the existence of agreement for sale. He submitted that there is nothing on record to prove the plea of tenancy. He submitted that the application made out by the appellants for setting aside the ex-parte decree has failed and therefore, no interference is called for. 6 I have considered the submissions. The appellants did not file written statement and therefore, the trial Court passed an order directing that the suit will proceed without written statement. Perusal of the impugned Judgment shows that the respondent was permitted to file affidavits in lieu of evidence of himself and two witnesses. He has produced documents on record. On plain reading of the Judgment, it is obvious that the trial Court did not adopt the course provided under sub 4 fa781.sxw rule 2 of rule 5 of Order VIII of the said Code by pronouncing the Judgment only on the ground that the appellant has not filed written statement. It is obvious that the trial Court has taken recourse to Rule 10 of Order VIII of the said Code. The law laid down by the Division Bench of this Court in the case of the Principal Collector of customs and another vs.Capital Colour Lab Pvt.Ltd. [2007 (9) LJSOFT 98] is very clear. While deciding a suit by invoking Rule 10 of Order VIII of the said Code, the Court has to deliver a Judgment dealing with the merits of the case. The Division Bench held thus: 8.Plain reading of Rule 5 as well as 10 of Order 8 would disclose that in case the defendant fails to file written statement, the Court is empowered to dispose of the suit by pronouncing a judgment. Rule 5 specifically says that such pronouncement of a judgment could be on the basis of the facts contained in the plaint. However, in both the cases, there has to be a judgment. The term "judgment" has been defined in Section 2(9) of the Code of Civil Procedure to mean a statement given by the Judge on the ground of a decree or order. The term "order" has been defined under Section 2(14) to mean the formal expression of any decision of a Civil Court which is not a decree, and a decree in terms of Section 2(2) signifies a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Obviously, therefore, the Court while proceeding to pronounce a judgment has to consider the facts stated in the plaint, whether those facts reveal any right in favour of the plaintiff to seek relief claimed for, or whether the law applicable to the facts disclosed in the plaint would entitle the plaintiff to seek prayers asked for, and on 5 fa781.sxw consideration of the facts disclosed in the plaint and applying the law relevant to the matter, the Court can proceed to pronounce the judgment and only on pronouncement of such judgment, a decree can be drawn up. (Emphasis added) 7 Perusal of the impugned Judgment shows that the Judge has merely referred to the fact that affidavits were filed. The relevant part of the Judgment reads thus: 3...The defendants were served endorsement on the summons on 8.6.2000 and filed their appearance through R.D.Acharya. By order dated 10.6.2002 the suit was ordered to proceed without written statement. Thereafter, the defendants and his Advocate remained absent. The plaintiff has filed his affidavit rating the case set out in plaint and the same is supported by affidavits of Kussumben Nagindas and Jayantilal Amrutlal Kansaara. They have produced the Matriz certificate and Survey records. The death certificate of Narmadabai. I, therefore, left with no other alternative but to hold that the plaintiff has proved their case as set out in the plaint and I pass the following order : 8 Thus, there is a complete absence of the reasons in the impugned Judgment. There is absolutely no discussion on the contents of the affidavits or the documents on record. The trial Court has not considered the fact that even according to the case of the respondent, there were other co-owners of the property who are not the parties to the suit. The Judgment delivered by the trial Court cannot be termed as a Judgment as contemplated by the 6 fa781.sxw Division Bench in the aforesaid decision. Thus, the impugned Judgment will have to be set aside only on the said ground. 9 It is pertinent to note that the suit is filed in the year 2000. In fact, till today, no amount has been paid by the appellant on account of occupation of the suit house. This suggestion was not accepted. In the impugned Judgment there is a finding recorded that the appellants are the trespassers. The fact remains that the suit filed in the year 2000 will have to be restored due to some default on the part of the appellants. Though the appellants have tried to shift the entire blame on their Advocate, the fact remains that there is some default on the part of the appellants. Apart from the fact that the appellants will have to pay heavy costs, this is a fit case in which the trial Court will have to be directed to appoint Court Receiver of the suit property with a direction to the Court Receiver to appoint appellants or any one of them as agent of the Court Receiver subject to payment of royalty. The amount of costs will have to be quantified at Rs.50,000/-, considering the fact that the respondent was required to contest the matter up to Apex Court. 10 Hence, I pass the following order: i) The impugned Judgment and decree dated 11th March 2004 is quashed and set aside and the Special Civil Suit no.2 of 2002 is restored to the file of the trial Court. ii) The appellants shall pay costs of Rs.50,000/- to the respondent on or before 21st June 2011. The Payment of costs will be a condition precedent. If the amount of costs is not paid or is not deposited with 7 fa781.sxw the trial Court within stipulated time, the impugned decree for possession will stand and this Appeal will stand dismissed. iii) Parties are directed to appear before the trial Court on Monday 27th June 2011. On 27th June 2011, the trial Court will permit the appellants to file a written statement. No further time shall be granted to file the written statement. iv)The trial Court will appoint any of its officers or an Advocate as the Court Receiver of the suit property pending the suit. The appellants or any one of them shall be appointed as an agent of the Court Receiver to use and occupy the suit house. The Court Receiver will take a formal possession and will appoint the appellants or any one of them as agents to occupy the suit house. The agency will be subject to payment of royalty. The trial Court will fix the appropriate royalty amount payable per month after hearing both the parties. The trial Court shall fix the remuneration of the Court Receiver which shall be paid by the Appellants. The Royalty amount shall be deposited with the trial Court. While passing the decree, the trial Court shall pass appropriate order as regards withdrawal of the said amount by the parties or any one of them. v) Hearing of the suit is expedited. The trial Court shall endeavour to conclude the hearing on or before 30th April 2012. vi)All contentions of the parties on merits of the suit are kept open. vii)Appeal is partly allowed on above terms. viii)Parties and the trial Court to act upon an authenticated copy of this order. JUDGE