IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.03.2011 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.M.A.No.3700 of 2010 M/s Meenakshisundaram Textiles 1st Floor, Sona Towers 72, Millers Road, Bangalore-52 rep by its Managing Director .. Appellant/Petitioner/Defendant -vs- M/s Valliammal Textiles Ltd., No.50/1, Aandipalayam, Mangalam Road Tiruppur .. Respondent/Respondent/Plaintiff Memorandum of Grounds of Civil Miscellaneous Appeal under Order XLIII Rule 1(d) of Civil Procedure Code against the order and decretal order dated 26.8.2010 made in I.A.No.1776 of 2009 in O.S.No.16 of 2005 on the file of the Additional District and Sessions Judge cum Fast Track Court No.5, Tiruppur. For Appellant :: Mr.V.Raghavachari for Mr.AR.M.Arunachalam For Respondent :: Mr.S.K.Raghunathan JUDGMENT (Judgment of the Court was delivered by D.MURUGESAN, J.) By an ex parte judgment dated 8.7.2009 made in O.S.No.16 of 2005, the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tiruppur has ordered as follows:- "Suit for directing the defendant to pay the plaintiff the sum of Rs.1,12,25,770.00 with future interest from the date of suit till realisation at 18% per annum of Rs.85,72,500/- and for the costs of the suit. PW1 present from 10.30 A.M. till 5.30 P.M. The defendant was called and found absent. The counsel for the defendant also is not present. The evidence on record perused. Claims proved. Suit decreed with costs for Rs.1,12,25,770.00 with future interest on Rs.85,72,500.00 at 18% https://hcservices.ecourts.gov.in/hcservices/ from the date of the plaint till realisation. Pronounced by me in the open court, this the 18th day of July, 2009." 2. The question arises in this civil miscellaneous appeal is as to whether the aforesaid judgment could be termed to be a "judgment" in terms of Section 2(9) of the Code of Civil Procedure. 3. The following few facts are necessary for the disposal of this civil miscellaneous appeal. The respondent in this appeal is the plaintiff and the appellant is the defendant in O.S.No.16 of 2005 and they are referred to as the plaintiff and the defendant in this judgment. The plaintiff instituted the said suit for the relief as has been stated in the above judgment of the Court below. The defendant filed the written statement dated 16.8.2001. After filing the written statement, the defendant did not appear and was absent. Issues were framed on 24.2.2005 and thereafter the evidence was recorded, perused and the judgment was rendered on 8.7.2009. A decree was also passed on the basis of that judgment. The defendant filed I.A.No.1776 of 2009 to set aside the ex parte judgment and decree and for a consequential direction for hearing of the suit on merits. That application was resisted by the plaintiff on various grounds. Subsequently, while that interlocutory application was pending, the plaintiff filed I.A.No.2346 of 2009 seeking for a direction to receive the additional counter affidavit. The I.A.No.1776 of 2009 filed by the defendant was taken up by the learned Judge and the same was dismissed by the order dated 26.8.2010. In order to dismiss the said application, the learned Judge found that though the issues were framed as early as on 24.2.2005 and the case was listed for trial from 24.3.2005 and that the cross examination of P.W.1 was posted from 3.4.2009, the defendant did not cross examine P.W.1 in spite of several adjournments. The learned Judge also found that the defendant did not give any explanation for its failure to cross examine P.W.1 for a long period and therefore the defendant id not make out any grounds to set aside the ex parte judgment and decree. The said order is questioned in this civil miscellaneous appeal. 4. When the civil miscellaneous appeal was heard, the respective learned counsel for the plaintiff and the defendant had advanced their arguments on the justification or otherwise to set aside the ex parte judgment and decree on the basis of the averments made in the affidavits filed in support of the applications to set aside the ex parte judgment and decree and the counter affidavit. Nevertheless, as it is frequently noticed by this Court that whenever a judgment is rendered on the ground that the defendant did not appear, uniform format is being adopted by the Judicial Officers of the State to pass the judgment of the kind, which we have referred to above. Hence, we are inclined to consider the question as to whether such a judgment and the decree drawn on the basis of the said judgment could be sustained in the eye of law, particularly, within the definition of Section 2(9) of the Code of https://hcservices.ecourts.gov.in/hcservices/ Civil Procedure and within Section 33 read with Order XX of the Code of Civil Procedure relating to a judgment and decree. 5. We have heard the respective learned counsel on either side on the above question. Section 2(9) of the Code of Civil Procedure defines a "judgment" as meaning, the statement given by the judge on the grounds of a decree or order. In this context, Order XX Rules 4 (1) & (2) are also referable, which read as under:- "4. Judgment of Small Cause Courts.--(1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon. (2) Judgments of other Courts.--Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision." Order XX Rule 4(1) relates to the judgment of a Court of Small Causes. Inasmuch as the said judgment does not require more than the points for determination and that the decision thereon, a judgment of a Court of Small Causes shall not fall under Section 2 (9) of the Code of Civil Procedure. Insofar as the judgment of other Court is concerned, in terms of Order XX Rule 4(2), it shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision and therefore it shall fall under Section 2(9) of the Code of Civil Procedure and in that sense, all the ingredients contained in Order XX Rule 4(2) must be available in that judgment. This is more so in view of the provisions of Order XX Rule 5 relating to the duty of the Court to state its reasons on each issue. That Rule reads as under:- "5.Court to state its decision on each issue.-- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit." 6. In terms of the above provisions, every judgment should contain a concise statement of the case, the points for determination, decision thereon and the reasons for such decision. A judgment which does not contain the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to be called as "judgment". The judgment should contain the brief summary of the facts, the evidence produced by the plaintiff in support of his claim and the reasoning of the learned Judge either for decreeing the suit or its dismissal. The Civil Procedure Code does not say that the Court is bound to grant a decree in case the defendant is absent. Judgment means cognitive process of reading a decision or drawing conclusion. Judgment is the basic requirement for a court and it means a decison or conclusion reached after https://hcservices.ecourts.gov.in/hcservices/ consideration and deliberation. To put it differently, the basics of a judgment are to support by most cogent reasons that suggest themselves the final conclusion at which the Judge has conscientiously arrived. 7. In this context, the following judgments are relevant for consideration. In Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381, the Supreme Court has held that a Judge cannot merely say "Suit decreed" or "Suit dismissed". The Supreme Court in Swaran Lata Ghosh v. H.K. Banerjee, (1969) 1 SCC 709, indicated that adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. The relevant observation reads thus:- "6. Trial of a civil dispute in court is intended to achieve, according to law and the procedure of the court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest: it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the court has decided against him, and more so, when the judgment is subject to appeal. The appellate court will then have adequate material on which it may determine https://hcservices.ecourts.gov.in/hcservices/ whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just." 8. In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, (2003) 1 SCC 197, the Supreme Court observed that Order XX of the Code of Civil Procedure requires a judgment to contain all the issues and findings or decisions there on with the reasons therefor. The relevant paragraph reads thus: "10. ..........Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefor. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. Rules 9 to 19 of Order XX are illustrative of contents of decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the stage of execution." 9. The Supreme Court in State of Punjab v. Bhag Singh,(2004) 1 SCC 547, at page 549 indicated the necessity to show reasons in support of the judgment. The observation reads thus : "6. ...... Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute https://hcservices.ecourts.gov.in/hcservices/ subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of a sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance." 10. In M/s. Meditronics Corporation of India & Ors. v. Dr. Mrs. Salima A. Rais (AIR 2007 (NOC) 735)(Bom.), Division Bench of the Bombay High Court observed that irrespective of the fact that the defendant has not filed written statement or he remained ex parte, the Court has to write a judgment which must be in conformity with the provisions of the Code of Civil Procedure. 11. In State of T.N. v. S. Thangavel, (1997) 2 SCC 349, the Supreme Court observed that the judgment denotes the reasons which the Court gives for its decision. The observation reads thus: "6. .......A judgment means a statement given by a Judge of the grounds of a decree or order. Section 2(8) defines “Judge” to mean the presiding officer of a civil court. An officer, therefore, is appointed to preside and to administer the law in a court of justice and clothed with judicial authority. Judgment is the decision of a court of justice upon the respective rights and claims of the parties to an action in a suit submitted to it for determination. The word “judgment” denotes the reasons which the court gives for its decision." 12. The Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508, while considering the provisions of Order IX Rule 6 and Order VIII Rule 10 of the Code of Civil Procedure, observed that even if the suit proceeds ex parte under Order IX Rule 6, the necessity of proof by the plaintiff of its case cannot be dispensed with. Their Lordships observed as under:- https://hcservices.ecourts.gov.in/hcservices/ "33....But there is substance in the other limb of this submission made by the learned senior counsel for the defendant-appellant. Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the CPC is attracted and the Court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the trial Court would scrutinise the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination' and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence." 13. In the case of Sushil Kumar Sabharwal v. Gurpreet Singh and others, AIR 2002 SC 2370, the Supreme Court held as under:- "12. The provision contained in Order 9 Rule 6 CPC is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the court depending on the given situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the court is conferred with a discretion https://hcservices.ecourts.gov.in/hcservices/ to make an order that the suit be heard ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for not fault of his. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6 CPC, the case would not have proceeded ex parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation." 14. Similar view has been taken by the Allahabad High Court in the case of Commissioner of Income Tax v. Surendra Singh Pahwa and others, AIR 1995 All. 259, wherein the Court held as under:- "5. Having heard the learned counsel for the parties and having perused the judgment dated 5.1.1994, I am of the view that it cannot be sustained. Even an ex parte judgment should satisfy the description of 'judgment' as laid down in Order 20, Rule 4(2), C.P.C., which visualises that the judgment of a Court other than the Court of Small Causes "shall contain concise statement of the case, points for determination, decision and the reasons for such decision." A 'judgment' for its sustenance must contain not only findings on the points, but must also contain what evidence consists of, and how does not prove plaintiff’s case. A judgment unsupported by reasons is no judgment in the eye of law. It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex parte, did not by itself entitle the plaintiff to get a decree in his favour. The Court was under an obligation to apply its mind to whatever ex parte evidence or affidavit filed under Order 19 of the Code is on the record of the case, and application of mind must be writ large on the face of record. This is possible only if the https://hcservices.ecourts.gov.in/hcservices/ Court directs itself to whatever material is on record of the case, analyses the same and then comes to any conclusion on the basis of evidentiary value of the ex parte evidence or affidavit brought on record by the plaintiff....." 15. As against the requirement of a judgment, Section 2(14) of the Code of Civil Procedure relating to an "order" is also referable. In terms of that Section, an "order" means the formal expression of any decision of a Civil Court which is not a decree. When it comes to the judgment, it should state the grounds of a decree, which includes an order. Hence, there is a vast difference between a judgment, a decree based on such judgment and an order. 16. Code of Civil Procedure does not define either an ex parte judgment or an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex parte judgment and the decree drawn on the basis of that judgment is known as an ex parte decree. Hence, even for an ex parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the Court has applied its mind to the pleading, relief claimed thereunder, the evidence and the conclusion arrived at by the Court on the above. 17. Section 2(2) of the Civil Procedure Code defines a "decree" as follows: "2(2) "decree" means the 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 and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within * * * section 144, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; In order to bring a decree within the provisions of Section 2(2), the following essential elements are necessary. There must be a https://hcservices.ecourts.gov.in/hcservices/ suit, as such a decree could be given only in relation to a suit. There must be an adjudication of the dispute. Adjudication means the judicial determination of the matter in dispute. Adjudication, in other words, also would mean that the Court must have applied its mind to the facts of the case to resolve the matter in dispute. Such adjudication must be about any or all the matters in controversy in the suit. After adjudication, there must be a conclusive determination of the rights of the parties. Finally, in order to pass a decree, the Court must formally express its decision in the manner provided by law. In this regard, the provisions of Section 33 of Civil Procedure Code are also relevant to be kept in mind. That provision states that the decree shall follow on the basis of the judgment pronounced. 18. The whole process of reasoning has to be set out for deciding the case one way or the other. This is more so, as could be seen from Order XX Rule (6A), which was substituted by the Code of Civil Procedure (Amendment) Act, 1999 with effect from 1.7.2002, to the preparation of a decree, which reads as under:- "6-A. Preparation of decree.--(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cause to have the effect of a decree for the