( 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 ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.774 OF 200 APPEAL NO.774 OF 200 APPEAL NO.774 OF 2007 IN IN IN SUIT NO.1447 OF 1987 Nahar Spinning Mills Ltd. .. Appellants V/s Board of Trustees of the Port of Bombay .. Respondents Mr.V.J.Makhija i/by Mr.K.P.M.Nair for the Appellants. Ms.Kanizz Munjee i/by M/s.Motiwala & Co.for Respondents. CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. DATE : 14th February, 2008. DATE : 14th February, 2008. DATE : 14th February, 2008. P.C.: P.C.: P.C.: 1. Heard the learned Counsel for the parties. Appeal is admitted. The learned Counsel for the Respondents waives service. By consent Appeal is taken up for final hearing. 2. By this Appeal the Appellants are challeging the judgment and order dated 13th July, 2006 whereby the learned Single Judge has decreed the suit in terms of prayer clause (a), only on the ground of non filing of the Written Statement under Order VIII Rule 5(2) read with Order VIII Rule 10 of the Code of Civil Procedure. 3. Perused the judgment of the learned Single Judge. The judgments contains no reason. The only reason given is that the suit was filed in 1987 and even till 2006 no Written Statement was filed and all the averments in the Plaint were deemed to have been accepted and the decree ( 2 ) was passed. 4. The learned Counsel for the Appellant has referred to the decision of the Supreme Court in the case of Balraj Balraj Balraj Taneja & Another V/s.Sunil Madan and Another - (1999) 8 Taneja & Another V/s.Sunil Madan and Another - (1999) 8 Taneja & Another V/s.Sunil Madan and Another - (1999) 8 SCC 396, SCC 396, SCC 396, wherein, while dealing with the identical issue as involved in the present matter, the Supreme Court has observed as under:- "29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the Defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In case, specially where a written statement has not been filed by the Defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the Court’s satisfaction and therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8." "37. A perusal of the above judgment will indicate that the suit had been decreed only because of the failure of the defendants in filing the written ( 3 ) statement. This exhibits the annoyance of the Court which is natural as no court would allow the proceedings to be delayed or procrastinated. But this should not disturb the judicial composure which unfortunately is apparent in the instant case as the judgment neither sets out the facts of the case nor does it record the process of reasoning by which the court felt that the case of the plaintiff was true and stood proved." "42. ‘Judgment’ as defined in Secton 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. Under the aforesaid facts and circumstance of the case, and in the light of the aforesaid judgment of the Hon’ble Supreme Court we are inclined to set aside the judgment and order dated 13th July, 2006 passed by the learned Single Judge. Accordingly, the judgment and order dated 13th July, 2006 passed by the learned Single Judge is set aside and the suit is restored to file. 6. On the condition of the Appellants (being the original Defendants) paying the costs quantified at Rs.10,000/- to the Respondents herein, the Appellants (original Defendants) are permitted to file their Written statement in the suit within a period of four weeks from today. It ( 4 ) is made clear that the aforesaid payment of costs is a condition precedent. The office shall not take the Written Statement on record unless the aforesaid costs of Rs.10,000/- is paid by the Appellants (original Defendants) to the Respondents. 7. It is further made clear that in the event the Appellants (original Defendants) fail to pay the costs of Rs.10,000/-, and fail to file the Written Statement within the stipulated time of four weeks from today, this order shall automatically stand vacated and the judgment and decree of the learned Single Judge shall stand revived. 8. In the event of the Appellants (original Defendants) filing their Written Statement within a period of four weeks from today, the parties are directed to complete their discovery and inspection within a period of four weeks thereafter. 9. Hearing of the Suit is expedited. Parties are at liberty to move the learned Single Judge for a fixed date of hearing. 10. Appeal stands disposed of in the above terms. (ANOOP V.MOHTA, J.) (DR.S.RADHAKRISHNAN, (ANOOP V.MOHTA, J.) (DR.S.RADHAKRISHNAN, (ANOOP V.MOHTA, J.) (DR.S.RADHAKRISHNAN, J.) J.) J.)