-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2046 OF 1997 WRIT PETITION NO.2046 OF 1997 WRIT PETITION NO.2046 OF 1997 Lachhiram Chudiwala, H.U.F. through its Karta/Manager Shri T.L.Chudiwala, 154/156 Mittal Tower, "B" Wing, 15th floor, Nariman Point, Mumbai-400 021. .. Petitioner Petitioner Petitioner. (Orig.Plff) Vs The Bank of Rajasthan Limited, a Banking Corporation constituted under the provisions of Mewar Companies Act, 1942, and deemed to have been incorporated under the Companies Act, 1956, at 195, Kalbadevi Road, 1st Floor, Mumbai -400 002. .. Respondents Respondents Respondents. (Orig.Defts) Mr Kishor Jain a/w Ms Sheetal S. Shah with Ms Shweta Shetty i/b M/s Mehta Girdharlal, for the petitioner/plaintiff. Mr R.D.Dave, i/b M/s N.N.Vaishnava & Co., for the respondents/defendants. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 29th September, 2006 DATE : 29th September, 2006 DATE : 29th September, 2006 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This writ petition under Article 227 of the Constitution of India is directed against the Judgment and order dated 31.8.1996, rendered by the learned Judge of the Small Causes Court at Bombay, by which Misc. Notice No.84 of 1996 in R.A.E.Suit No.57/106 of 1992 taken out by the respondents-defendants, hereinafter referred to as "the defendants", has been allowed. The -2- suit filed by the petitioner-plaintiff, hereinafter referred to as "the plaintiff", has been decreed in the absence of the defendants and their advocate vide judgment and order dated 17.10.1994, and this judgment has been set aside by the impugned order dated 31.8.1996. 2. The factual matrix, that is relevant and necessary to deal with the questions raised by the plaintiff, is as follows. The plaintiff had filed a suit against the defendants for a decree of eviction in respect of 400 sq.ft area out of the total area in their possession, admeasuring 1600 sq.ft., on the first floor of 195, Kalbadevi Road, Mumbai, hereinafter referred to as "the suit premises". The decree was sought on the grounds of arrears of rent, change of user, nuisance, wastage of property, unauthorised additions and alterations and nonpayment of municipal taxes, which are available under sections 12(1) and 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Rent Act"). The defendants were duly served with the suit summons on 6.2.1992. On 16.3.1992, the defendants’ Advocate Shri Mehta filed Vakalatnama. The facts set out in the petition reveal that the suit was adjourned from time to time at the request of the advocate for the defendants, who sought -3- the adjournments for filing their written statement. On 17.9.1993, once again an adjournment was sought on the very same ground and the matter was adjourned to 8.10.1993. However, on 8.10.1993 or thereafter, neither the defendants nor their advocate appeared and as a result of which the suit came to be decreed ex-parte in their absence vide judgment and order dated 17.10.1994. The defendants and their advocate claim that they came to know about the ex-parte decree on 22.1.1996 and immediately on 25.1.1996 they took out Notice No.84 of 1996 for setting aside the ex-parte decree dated 17.10.1994. That application has been allowed by the order dated 31.8.1996, impugned in the present writ petition. 3. I heard the learned counsel for the parties at great length and have gone through the entire material placed on record with their assistance. I do not propose to state in detail the submissions advanced by the learned counsel for the parties at this stage, since I will be making reference to their submissions little later at appropriate stage/s. However, let me make short reference to the submissions advanced and the questions raised by the learned counsel for the parties which I am called upon to address in the judgment. Mr Jain, learned counsel for the petitioners, challenged -4- the impugned order on three grounds: firstly, that the trial court lacked jurisdiction to entertain the application filed by the defendants for setting aside the decree. The only remedy open to the defendants was to file an appeal against the decree, it being a decree under Order 8, rule 5(2) of the Code of Civil Procedure (for short, "CPC"). The application under Order 9, rule 13 was not tenable for setting aside such decree. Secondly, he submitted that even if it is assumed that the decree is under Order 9, rule 6 of CPC, the defendants have not made out any case or have shown sufficient cause for setting it aside. On the contrary, the facts on record establish that the defendants had been grossly negligent, indifferent towards the process of court and there was total lack of diligence. And lastly, he submitted that the court below ought to have rejected the application as barred by limitation. In other words, the delay in filing the application had not been properly explained, no sufficient cause was shown to condone the delay and hence ought to have been rejected on that ground. 4. On the other hand, the learned counsel for the defendants submitted that by no stretch of imagination it could be said that the decree passed was one under Order 8, rule 5 (2) of CPC. He submitted, it is clear -5- from the overall facts and circumstances that it was a decree under order 9, rule 6 of CPC and, therefore, it has rightly been set aside by exercising the powers under Order 9, rule 13. He also invited my attention to the material placed on record to contend that the sufficient cause was shown which prevented the defendants from appearing in the suit when it was called on for hearing. Insofar as the delay in filing the application under Order 9, rule 13 is concerned, he submitted that in the matter of condonation of delay, it is well settled that the courts are expected to take pragmatic view and condone the delay and offer fair opportunity to the parties to meet the challenge on merits. Both the learned counsel appearing for the parties made reference to several judgments of this court and of the Supreme Court to which I propose to make reference in the course of the judgment at appropriate stage/s. 5. At the outset, I propose to deal with the first submission advanced by Mr Jain, learned counsel for the petitioners. From the facts of the case and the submissions advanced by the learned counsel, the following question could be formulated : "whether a decree passed in the absence of the defendants and their advocate is a decree under Order 9, rule 6 or is a -6- decree passed under Order 8, rule 5(2) of CPC, in a suit where summons has admittedly been served on the defendants and where they appear and seek few adjournments through their advocate for filing written statement and fail to do so and then do not appear on the date when the suit was called on for hearing". In other words, "in a suit, where summons has been served, the defendant appears, engages the advocate, seeks few adjournments for filing written statement but fails to do so and then stops appearing and thereafter consistently remains absent and as a result of which the court proceeds to pass a decree, whether such decree is a decree passed under Order 9, rule 6 or under Order 8, rule 5 or 10 of CPC and whether application under Order 9, rule 13 for setting aside such decree would be maintainable". 6. This Court had several occasions to deal with the questions arising out of Order 8, rule 5 or 10, and Order 9, rule 6 and 13 of CPC while dealing with somewhat similar situation/s as has arisen in the present writ petition. For addressing the aforesaid question, it would be relevant to make reference to few judgments of this Court and the Supreme Court to find out the settled position in law. 7. In Rashtriya Chemicals and Fertilisers Ltd Vs. Rashtriya Chemicals and Fertilisers Ltd Vs. Rashtriya Chemicals and Fertilisers Ltd Vs. -7- Ota Kandla Pvt Ltd, 1992 Mh.L.J.1266 Ota Kandla Pvt Ltd, 1992 Mh.L.J.1266 Ota Kandla Pvt Ltd, 1992 Mh.L.J.1266, while dealing with the aforestated provisions of CPC, the learned Single Judge (N.D.Vyas,J.) has taken a view that where the defendant is served and represented by a counsel but fails to file his written statement despite the opportunities given to him, the decree passed against him would be one under the provisions of Order 8, rule 10 of CPC and an application under Order 9, rule 13 for setting aside such a decree is not maintainable. Though the facts were somewhat similar, one distinguishing factor needs to be taken note of. In that case, on the date of hearing of the suit, the advocate for the defendants was present in the court. In other words, the defendants were present on the date of decree through their counsel before the court. In Laxman Laxman Laxman Zingraji Adhau Vs Sushila Zinguji Thakre and others, Zingraji Adhau Vs Sushila Zinguji Thakre and others, Zingraji Adhau Vs Sushila Zinguji Thakre and others, 1995 (4) Bom. C.R. 677 1995 (4) Bom. C.R. 677 1995 (4) Bom. C.R. 677, another learned Single Judge (R.M.Lodha,J.), after referring to the judgment in Rashtriya Chemicals case Rashtriya Chemicals case Rashtriya Chemicals case (supra), also took a similar view. In short, it has been held in the said judgment that a decree which is passed in the absence of the defendant is an ex-parte decree. In other words, when the defendant is present or his advocate representing him is present, the decree passed is not strictly speaking an ex-parte decree as contemplated by Order 9 Rule 13 because the said provision contemplates absence -8- of the defendant. In both the aforesaid judgments, the view taken was that a decree under Order 8, rule 5 can only be passed in the presence of the defendants on account of failure to file the written statement. Yet another learned Single Judge (Palshikar, J.) in Manomal Manomal Manomal Kushaldas Sindhi Vs Gangadhar Pannalal Rai Kushaldas Sindhi Vs Gangadhar Pannalal Rai Kushaldas Sindhi Vs Gangadhar Pannalal Rai, Civil Revision Application No.489 of 1981 decided on 23.11.1981, took a similar view. However, Kapadia, J., as he then was, in Notice of Motion No.2810 of 1990 in Suit No.3418 of 1987, vide judgment dated 26.2.1993, took a view that a decree under Order 8, rule 5 can be passed even in the absence of the defendant. 8. In view of the divergence of views taken by different learned Single Judges of this Court, a reference was made by another learned Single Judge (S.S.Nijjar, J.) in Dhanwantrai R Joshi and Ors Vs Dhanwantrai R Joshi and Ors Vs Dhanwantrai R Joshi and Ors Vs Satish J Dave & ors Satish J Dave & ors Satish J Dave & ors, while dealing with Notice of Motion No.2956 of 1995 in Suit no.1557 of 1990 for deciding the following question. "Whether a decree passed in the absence of the defendant and his counsel is a decree passed under Order 9, Rule 6 or is it a decree passed under Order 8, Rule 5 if the same is also passed on the ground that the written statement has not been filed." It would be advantageous to reproduce the concluding paragraphs of the reference order to understand better -9- the background against which the reference was made. "Admittedly in the case decided by Justice Kapadia, defendant nos 6 and 7 were absent. But relying upon the judgment of Justice Vyas it has been held that when a decree is passed under Order VIII Rule 5 and Rule 10 then no application can be made under Order IX rule 13. A perusal of the facts on the basis of which Justice Vyas gave the earlier judgment in the case of Rashtriya Chemicals (supra) would show that therein the defendants were represented by the counsel. Thus it was held that the decree has been passed under Order VIII Rule 5 but in the case before Justice Kapadia, defendant nos 6 and 7 were absent. To my mind applying the ratio of this Court given in the case of Laxman Zingraji (Lodha,J.), Rashtriya Chemical (Vyas, J.) and Manomal (Palshikar, J.) it would have to it would have to it would have to be held that when a decree is passed in be held that when a decree is passed in be held that when a decree is passed in the absence of the defendants then it is the absence of the defendants then it is the absence of the defendants then it is a decree passed under Order IX Rule 6. a decree passed under Order IX Rule 6. a decree passed under Order IX Rule 6. Therefore, there seems to be divergence Therefore, there seems to be divergence Therefore, there seems to be divergence of opinion on the question as to when of opinion on the question as to when of opinion on the question as to when can a decree be said to be a decree can a decree be said to be a decree can a decree be said to be a decree passed under Order IX Rule 6 and the one passed under Order IX Rule 6 and the one passed under Order IX Rule 6 and the one passed under Order VIII Rule 5 passed under Order VIII Rule 5 passed under Order VIII Rule 5. Indeed the perusal of the decree passed in the present case would clearly show that it could easily fall under both the categories. With regard to defendant no.1 a decree has been passed as defendant no.1 was absent though he was served. But the decree has also been passed on account of the fact that the written statement has not been filed. On the other hand in paragraph 2 of the same decree the defendant nos 2 and 3 have been granted an adjournment in order to file the written statement. Even in the face of the above, Mr Gidwani, learned counsel for the plaintiff, submits that the decree has been passed under Order VIII Rule 5; -10- the first line in the judgment is superfluous; it can have no legal effect because it merely records that the defendant no.1 is absent although he has been served. This argument of Mr Gidwani could well be accepted if the first line in paragraph one and the second paragraph of the decree did not exist. If the decree against defendant no.1 had been passed purely for the reason that no written statement has been filed, then the same decree could have been passed against defendant nos 2 and 3 also. These defendants also did not file the written statement. The only difference between the situation of defendant no.1 on the one hand and defendant nos 2 and 3 on the other hand was that defendant no.1 was absent and defendant nos 2 and 3 were present. Thus, in my opinion, the decree against Thus, in my opinion, the decree against Thus, in my opinion, the decree against defendant no.1 has been passed under defendant no.1 has been passed under defendant no.1 has been passed under Order IX Rule 6. Prima facie, I am of Order IX Rule 6. Prima facie, I am of Order IX Rule 6. Prima facie, I am of the view that the application under the view that the application under the view that the application under Order IX Rule 13 would be maintainable. Order IX Rule 13 would be maintainable. Order IX Rule 13 would be maintainable. As narrated above, Palshikar, J., Vyas, As narrated above, Palshikar, J., Vyas, As narrated above, Palshikar, J., Vyas, J and Lodha, J. have taken the view J and Lodha, J. have taken the view J and Lodha, J. have taken the view that a decree under Order VIII Rule 5 that a decree under Order VIII Rule 5 that a decree under Order VIII Rule 5 can only be passed in the presence of can only be passed in the presence of can only be passed in the presence of the defendant, on account of failure to the defendant, on account of failure to the defendant, on account of failure to file written statement. Justice Kapadia file written statement. Justice Kapadia file written statement. Justice Kapadia holds that a decree under Order VIII holds that a decree under Order VIII holds that a decree under Order VIII Rule 5 can be passed even in the absence Rule 5 can be passed even in the absence Rule 5 can be passed even in the absence of the Defendant. Mrs Justice K.K.Baam of the Defendant. Mrs Justice K.K.Baam of the Defendant. Mrs Justice K.K.Baam in the present case has passed a decree in the present case has passed a decree in the present case has passed a decree noticing that the defendant is absent noticing that the defendant is absent noticing that the defendant is absent and the written statement is also not and the written statement is also not and the written statement is also not filed filed filed. The defendant claims it to be a decree under Order IX Rule 6. The plaintiff claims it to be a decree under Order VIII Rule 5. In view of the divergence of views of this court as explained above it is necessary that the matter may be settled authoritatively by a larger Bench of this Court." (emphasis supplied) The reference was decided by a Division Bench (M.B.Shah, -11- C.J. and Y.S.Jhahagirdar, J.) vide judgment dated 30.9.1998 and 8.10.98 reported in 1998 (4) All 1998 (4) All 1998 (4) All Maharashtra Reporter 509. Maharashtra Reporter 509. Maharashtra Reporter 509. This judgment is hereinafter referred to as "Dhanwantrai’s case". 9. The Division Bench in Dhanwantrai’s case has endorsed the view taken by the learned Single Judge in Rashtriya Chemicals’ case (supra). The said view of the learned Single Judge was also confirmed in appeal by a Division Bench of this Court consisting of P.D.Desai, C.J.and S.H.Kapadia, J.,as they then were. The said view was also referred by another Division Bench of this Court consisting of Ms Sujata Manohar, C.J. & Dr.B.P.Saraf, J., as they then were, in appeal No.169 of 1994, decided on 31.3.1994, and held that there was no reason to take a different view from the one taken by the learned Single Judge (N.D.Vyas,J.). The Division Bench in Dhanwantrai’s case considered the scheme of the relevant provisions and also a landmark Judgment of the Supreme Court in Sangram Singh Vs. Election Tribunal Sangram Singh Vs. Election Tribunal Sangram Singh Vs. Election Tribunal Kotah and anr, AIR 1955 SC 425 Kotah and anr, AIR 1955 SC 425 Kotah and anr, AIR 1955 SC 425. It would be advantageous to reproduce the relevant observations made by the Division Bench after considering the scheme of the relevant provisions and the judgment of the Supreme Court in Sangram Singh case. The relevant paragraphs 12 to 15 read thus : -12- "12. In our view, considering the scheme of Order VII Rule 5 or Rule 10, as well as Order IX, it is fields apparent that both operate in different. Order VIII Rule 5 specifically provides that if Defendant fails to file Written Statement as contemplated therein the Court may pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, or the Court may in its discretion, require any such fact to be proved. If the judgment is pronounced on the basis of the facts contained in the plaint, decree is to be drawn in accordance with Order VIII Rule 5(4). Similarly, if a party from whom Written Statement is required under Order VIII Rule 10, fails to present the same within the time permitted or fixed by the Court, the Court is entitled to pronounce judgment against such party, or make such order in relation to the suit as it thinks fit. If the judgment is pronounced, the decree is required to be drawn up. Such decree pronounced on nonfiling of Written Statement cannot be considered to be an exparte decree as contemplated under Order IX Rule 6. These types of decrees are passed because of failure to file Written Statement. Further, in a case where Written Statement is not filed and at the time of hearing, even if the Defendant is present, the Court is entitled to pronounce the judgment and pass decree. If the Defendant is absent and the Written Statement as required is not filed, the Court is also entitled to pronounce judgment on the basis of the averments made in the plaint. 13. As against this, under Order IX, the Court is required to follow different procedure. Order IX Rule 1 provides that on the day fixed in the summons for the Defendant to appear and answer, the parties shall be in -13- attendance at the Court house and suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. This means that suit is This means that suit is This means that suit is fixed for hearing and on the date of fixed for hearing and on the date of fixed for hearing and on the date of hearing if neither parties appears then hearing if neither parties appears then hearing if neither parties appears then the suit may be dismissed as provided the suit may be dismissed as provided the suit may be dismissed as provided under Order IX Rule 3. If the Defendant under Order IX Rule 3. If the Defendant under Order IX Rule 3. If the Defendant fails to appear on the date of hearing, fails to appear on the date of hearing, fails to appear on the date of hearing, the Court is required to pass an order the Court is required to pass an order the Court is required to pass an order that the suit be heard exparte and to that the suit be heard exparte and to that the suit be heard exparte and to proceed further with the hearing of the proceed further with the hearing of the proceed further with the hearing of the suit. This requires recording of suit. This requires recording of suit. This requires recording of evidence and to proceed with the matter. evidence and to proceed with the matter. evidence and to proceed with the matter. After recording evidence exparte, the After recording evidence exparte, the After recording evidence exparte, the Court can pronounce judgment on the Court can pronounce judgment on the Court can pronounce judgment on the basis of the evidence which is brought basis of the evidence which is brought basis of the evidence which is brought by the Plaintiff. In such cases, the by the Plaintiff. In such cases, the by the Plaintiff. In such cases, the suit is not disposed of as provided suit is not disposed of as provided suit is not disposed of as provided under Order VIII Rule 5 or Rule 10 on under Order VIII Rule 5 or Rule 10 on under Order VIII Rule 5 or Rule 10 on the basis of the averments made in the the basis of the averments made in the the basis of the averments made in the plaint plaint plaint. 14. Further under Order IX Rule 13, the Defendant is entitled to file application for setting aside exparte decree on two grounds, namely (i) that the summons was not duly served and (ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. This also indicates that the suit is required to be fixed for hearing and on the date of hearing the defendant is absent. 15. In this