IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1136 OF 2002 IN SUIT NO.229 OF 1989 WITH NOTICE OF MOTION NO.3525 OF 2002 Nikita Trading ...Appellants Versus Nirlon Synthetics Fibres & Chemicals Ltd. & Ors. ...Respondents ...... Sarvasri Rohit Kapadia, Sr.Counsel with Zubin Behramkamdin & Vivek A.Vashi i/b Bharucha & Partners for Appellants. Sri Naushad Engineer i/b M.A.Shah for Respondents. ...... CORAM: SRI R.M.S.KHANDEPARKAR & CORAM: SRI R.M.S.KHANDEPARKAR & CORAM: SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ. SRI P.B.MAJMUDAR, JJ. SRI P.B.MAJMUDAR, JJ. DATED: APRIL 29, 2008. DATED: APRIL 29, 2008. DATED: APRIL 29, 2008. P.C. P.C. P.C. 1. Heard. 2. This appeal arises from the disposal of the Suit No.229/1989 by the learned Single Judge on 12th February 1998. The Order disposing the Suit reads thus: : 2 : "Affidavit of M.V.Parab dated 3rd July, 1990, proves service on Defendant No.2. Defendant No.2 had appeared through M/s Mehta and Girdharlal, a Firm of Advocates, who have subsequently obtained discharge on 12th October, 1992. This proves due service on the second Defendant, which has neither filed written Statement, nor appeared in Court today. Original documents tendered to Court, taken on record and marked collectively Exhibit ‘A’. There shall be a decree in favour of the Plaintiffs in the sum of Rs.1,35,27,081.78 together with interest at the rate of 18 per cent per annum on the principal sum of Rs.96,22,217.67 from the date of suit until payment of recovery. Plaintiffs shall be entitled to the costs of this suit. Advocate’s costs quantified at Rs.6,550/-." 3. The impugned order is sought to be challenged on various grounds, however, in our considered opinion, it is not necessary to address to all those grounds. Suffice to refer to only one ground which relates to failure on the part of the Court to take into consideration the provisions of law those are applicable in cases where the Defendant fails to file the written statement inspite of service of summons and when the matter : 3 : is placed before this Court on Original Side. The Law on the point is well settled by the decision of the Apex Court as well as of this Court and we can conveniently refer to only three decisions. One in the matter of Iridium India Telecom Ltd. vs. Iridium India Telecom Ltd. vs. Iridium India Telecom Ltd. vs. Motorola Inc. reported in (2005) 2 SCC 145 Motorola Inc. reported in (2005) 2 SCC 145 Motorola Inc. reported in (2005) 2 SCC 145 of the Apex Court, and two others of this Court to which one of us (R.M.S.Khandeparkar, J.) had been the party and they were in Tardeo Properties Pvt.Ltd. Tardeo Properties Pvt.Ltd. Tardeo Properties Pvt.Ltd. vs. Bank of Baroda reported in 2007 (5) BCR 557 vs. Bank of Baroda reported in 2007 (5) BCR 557 vs. Bank of Baroda reported in 2007 (5) BCR 557 and All India Central Bank Employees Congress & All India Central Bank Employees Congress & All India Central Bank Employees Congress & Ors. vs. Central Bank of India reported in 2007 Ors. vs. Central Bank of India reported in 2007 Ors. vs. Central Bank of India reported in 2007 (5) BCR 835 (5) BCR 835 (5) BCR 835. 4. This Court relying upon the Motorola’s case in Tardeo Properties matter (supra), had clearly held that the provisions of Order VIII of the Code of Civil Procedure are not applicable to the matters which arise on the Original Side of this Court and the Court has to follow in that regard the Original Side Rules. The same view was reiterated in Central Bank of India’s case (supra). In fact, the Delhi High Court in M/s.Printpak M/s.Printpak M/s.Printpak Machinery Ltd., New Delhi vs. M/s.Jay Kay Paper Machinery Ltd., New Delhi vs. M/s.Jay Kay Paper Machinery Ltd., New Delhi vs. M/s.Jay Kay Paper : 4 : Congeters, New Delhi reported in AIR 1979 Delhi 217 Congeters, New Delhi reported in AIR 1979 Delhi 217 Congeters, New Delhi reported in AIR 1979 Delhi 217 had held that the Original Side Rules are not an amendment made or a provision inserted in the Code of Civil Procedure and they always existed as a separate body of Rules. Similarly Division Bench of this Court in Shevaram Thadaram Jainsinghani vs. Shevaram Thadaram Jainsinghani vs. Shevaram Thadaram Jainsinghani vs. Indian Oil Corporation Ltd. reported in 1968 Indian Oil Corporation Ltd. reported in 1968 Indian Oil Corporation Ltd. reported in 1968 Mh.L.J. 748 Mh.L.J. 748 Mh.L.J. 748, had held that wherever rule has been made by the High Court for the benefit of the procedure to be followed on the Original Side, the provisions of the Code of Civil Procedure would not apply and it was held that the amended provision of Order VIII Rule 1 wold not apply to the Suits on the Original Side and such Suits will continue to be governed by the Original Side Rules. The said decision of the Division Bench was duly approved by the Apex Court. 5. Considering the law as above being well settled, plain reading of the above quoted order passed by the learned Single Judge while disposing the Suit cannot be sustained and is liable to be set-aside and matter is required to be remanded for disposal of the Suit in accordance with the : 5 : provisions of law and considering the Ruling of the Apex Court in Motorala’s case (supra), the Division Bench of this Court in Tardeo Properties’ case (supra) as well as Central Bank of India’s case (supra). Needless to say that the Suit relates to the year 1989 and therefore it would be necessary to expedite the hearing of the Suit and parties are required to cooperate with the Single Judge in that regard. We therefore request the learned Single Judge to dispose of the Suit as expeditiously as possible and possibly before 30th October 2008. 6. Parties to appear before the learned Single Judge for further proceeding in the matter on 5th June 2008. The learned Advocates appearing for the parties take note of the same. 7. Appeal accordingly stands disposed of with no order as to costs. 8. Notice of Motion No.3525/2002 stands disposed of in view of the above order. : 6 : P.B.MAJMUDAR, J. R.M.S.KHANDEPARKAR, J.