1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.137 OF 2008 IN SUIT NO.2519 OF 1990 Rashmin Kantilal Pattani Appellant (Orig.Deft.No.10) vs. 1. Suresh Gole & ors. Respondents (Nos. 1 to 9-orig. Deft Nos.1 to 9 No.10-orig.Plff.) Mr.P.B. Shah i/b.Mr.Rajeev Matkar for the Appellant. Mr.Ramakant R. Arolkar for Respondent No.10. CORAM : DR.S.RADHAKRISHNAN & ANOOP V. MOHTA,JJ. DATED : 18th March, 2008 P.C. Heard the learned counsel for the Appellant-original Defendant No.10 and the learned counsel for the Respondent No.10-original Plaintiff. 2. Appeal is admitted. By consent, the Appeal is taken up for hearing. 3. The learned counsel for Respondent No.10 waives service. 4. The presence of Respondent Nos. 1 to 9 is not necessary in the above Appeal. Since the present 2 Appellant is Defendant No.10 is challenging the exparte Decree granted against him by the impugned Order dated 28th June, 1996 whereby the learned Single Judge had decreed the Suit mainly on the ground that Defendant No.10 had not filed the written statement and on that basis it was construed that the statements in the plaint are not controverted and accordingly the Suit was decreed in terms of prayer (c). It appears that Defendant No.7 by the time the matter came up before the learned Single Judge had disposed of the said property in favour of defendant No.10 and effectively the Decree will be operating against Defendant No.10. 5. The learned counsel appearing for the Appellant brought to our notice the judgment of the Hon’ble Supreme Court in Balraj Taneja & anr. Vs. Sunil Madan Balraj Taneja & anr. Vs. Sunil Madan Balraj Taneja & anr. Vs. Sunil Madan & Anr. (1999) 8 S.C.C. 396, Anr. (1999) 8 S.C.C. 396, Anr. (1999) 8 S.C.C. 396, wherein the Supreme Court has observed as under:- "27. In view of the above, it is clear that the court, at no stage, can act blindly or mechanically. While enabling the court to pronounce judgment in a situation where no written statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the court can either pronounce judgment against the defendant or pass such order as it may think fit. 3 28. Having regard to the provisions of Order 12 Rule 6, Order 5 Rule 8, specially the proviso thereto, as also Section 58 of the Evidence Act, this Court in Rozia Begum case observed as under: . "In this connection, our attention was called to the provisions of Rule 6 of Order 12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff. These provisions have got to be read along with Rule 5 of Order 8 of the Code with particular reference to the proviso which is in these terms: . "Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." . The proviso quoted above, is identical with the proviso to Section 58 of the Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted." The Court further observed: . "Hence, if the Court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the Court, in pursuance of the terms of Section 42 of the Specific Relief Act, decides, in a given case, to insist upon clear proof of even admitted facts, the court could not be said to have exceeded its judicial powers." 40. Unfortunately, the High Court did not consider this fact and proceeded almost blindly to pass a decree in 4 favour of the plaintiff merely because written statement had not been filed in the case. Learned Single Judge, who passed the decree, did not consider any fact other than the conduct of the defendants in seeking adjournments of the case for purposes of filing written statement. So also, the Division Bench did not consider any fact other than the fact that the defendants had been trying to prolong the proceedings by seeking adjournments and, that too, by changing their counsel. The Division Bench also took into consideration the fact that the appeal filed by the defendants against the decree passed by the Single Judge was beyond time which again indicated their negligence. No other fact was taking into consideration and the decree passed by the Single Judge was affirmed. 41. There is yet another infirmity in the case which relates to the "judgment" passed by the Single Judge and upheld by the Division Bench. 42. "Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment . "shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision". . It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment." 5 6. In the light of the above judgment of the Hon’ble Supreme Court, the learned Single Judge while passing the above judgment has not given any concise statement of the case and even the points for determination, the decision therein ought to have been supported by reasons. 7. The learned counsel for Respondent No.10 is also unable to controvert the said position. Under the facts and circumstances of the case and in the light of the aforesaid judgment of the Hon’ble Supreme Court, the aforesaid judgment of the learned Single Judge cannot be sustained in law. Accordingly the judgment and decree of the learned Single Judge dated 28th June, 1996 stands set aside against Defendant No.10 only, who is the present Appellant. Appeal is accordingly allowed. 8. The learned counsel for the Appellant seeks four week’s time to file written statement in the above Suit. Almost 18 years have lapsed, still written statement is not ready. Under these circumstances, we direct the Appellant-Defendant No.10 to pay the costs quantified at Rs.5,000/- to Respondent No.10 as a condition precedent within a period of two weeks from today and file the aforesaid written statement within 6 a period of four weeks from today. Both the Respondent No.10 and Appellant herein being Defendant No.10 shall complete the discovery and inspection within a period of four weeks thereafter and hearing of the above Suit is expedited. The parties are liberty to the parties to move the learned Single Judge for fixing the date of early hearing of the Suit. The Appeal stands disposed off, in the above terms. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.] [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, J.] J.] J.]