1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 164 OF 2010 IN NOTICE OF MOTION NO. 2808 OF 2009 IN SUIT NO. 4633 OF 1997 Haroon Zamir Ahmed ....Appellant Versus M/s. S. B. Consultants and Ors. ....Respondents Ms.Bhavna Shah, Advocate for the Appellant. Mr. R. M. Haridas, Advocate for the Respondents. CORAM : F. I. REBELLO & R. V. MORE, JJ. DATE : 10TH JUNE, 2010. P.C.: The Appellant/Original Plaintiff has moved this Court against the order dated 30th November, 2009. The learned Single Judge held that the judgment passed was not a judgment under Order 8 Rule 5 or Rule 10 but an ex-parte judgment on an adjourned date of hearing and consequentially the provisions of Order 9 Rule 13 would be attracted. The learned Judge found that the evidence had been lead by way of examination-in-chief on 2 affidavit. The learned Judge further recorded that sufficient cause has been shown, however, saddled the defendant with cost quantified at Rs.15,000/-. The ex-parte decree was accordingly set-aside. It is this order, which is the subject matter of the present appeal. 2. On behalf of the Appellant, the learned Counsel submits that infact the judgment and decree were passed under Order 8 Rule 5 and Order 8 Rule 10 and consequentially an application for setting aside the judgment under Order 9 Rule 13 was not applicable. It is submitted that, what ought to have been filed was an appeal and consequentially the impugned order is liable to be set-aside. The learned Counsel during the course of hearing has invited our attention to the judgment of the Supreme Court in the case of Balraj Taneja & Anr. Vs. Sunil Madan & Anr. reported in A.I.R.1999 SC 3381 and the judgment of the learned Judge of this Court in Lachiram Chudiwala, H.U.F versus Bank of Rajasthan Limited reported 2007 (1) A.I.R. BOM R.606. It is submitted that these authorities support the contentions of the Appellant herein that the judgment passed was not under Order 9 but was a judgment passed in terms of Order 8. 3. We have heard learned Counsel for the parties. On the suit being filed, in terms of Order 8 Rule 1 before its amendment and on summons being served, the defendant had to file a written statement at the first 3 hearing of the suit, or on such date as the Court adjourns the matter for filing of the written statement. The position after the amendment is slightly different considering that there is now a time limit. In the case of Iridium India Telecom Ltd. Versus Motorola Inc. reported in A.I.R.2005 SC No. 514, the learned Supreme Court has more so considered, the view taken by this Court that if rules have been framed by this Court as a Chartered High Court, then, to that extent, the rules will prevail over the provisions as contained in the Code of Civil Procedure. We really are not concerned with that aspect today. Under Order 8 Rule 5 of the Code of Civil Procedure, 1908 on the date fixed for filing a written statement or on adjourned date, if the defendant has not filed the pleading, it is lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint except as against the person under disability, but the Court may at its discretion require any such fact to be proved. If on the date fixed for filing the written statement, the Court grants further time, then, in terms of Order 8 Rule 10, if the written statement is not filed within the time fixed by the Court, then, it is the discretion of the Court to pass judgment or make such order in relation to the suit as it thinks fit. In other words, if it chooses not to pass a judgment on the date fixed for filing a written statement and instead proceeds under Order 17 of the Code of Civil Procedure by adjourning the matter, the stage for passing a judgment under Order 8 Rule 5 or Rule 10 no longer subsists. It is thereafter open to the Court in terms of Order 9 to 4 proceed to pass an ex-parte judgment, in the event, defendant fails to appear. Even if the defendant appears on the adjourned date after an order is passed to proceed ex-parte, it is not open to the Court to permit the defendant to file written statement, unless an application is made for setting-aside the ex-parte order. 4. In the instant case, on facts, no judgment was pronounced either on the first date for filing written statement or on adjourned date. The matter was thereafter adjourned and brought up before this Court for final hearing after 10 years. On that date, the examination in chief by way of affidavit of the plaintiff was taken on record and the Court was pleased to pass the judgment and decree the suit. In our opinion, once the matter was adjourned, and evidence taken on record and the stage of Order 8 Rule 5 and Order 8 Rule 10 had passed, it will have to be held that the judgment passed is an ex-parte judgment and in such case, the only procedure for setting-aside the ex-parte judgment is under Order 9 Rule 13, unless the party aggrieved chooses to prefer an appeal on merits of the matter, in which event the Appellate Court would not be in position to consider, whether sufficient cause had been made out for the party not to appear on the day when the judgment was pronounced. 5 5. In the case of Balraj Taneja & Anr.(Supra), the Apex Court after considering the scheme of the act itself has observed that in both situations that when the written statement has not been filed by the defendant, it will be open to the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. The Court held that it is also to its discretion either to pronounce a judgment against the defendant and make such order in relation to the suit as it thinks fit. These words are of immense significance in as much as they give a discretion to the Court not to pronounce judgment against the defendant and instead pass such order as it thinks fit in relation to the suit. The learned Supreme Court referred to the judgment in the case of Sangram Singh Versus Election Tribunal Kotah & Anr. Reported in AIR 1955 SC 425. We may gainfully reproduce paragraph nos. 32 and 33 of the said judgment: “(32) We have already seen that when a summons is issued to the defendant it must state whether the hearing is for the settlement of issues only or for the final disposal of the suit (O.5, R.5). In either event, O.8, R.1 comes into play and if the defendant does not present a written statement of his defence, the Court can insist that he shall; and if, on being required to do so, he fails to comply- “the Court may pronounce judgment against him, 6 or make such order in relation to the suit as it thinks fit.” (O.8, R.10). This invests the Court with the widest possible discretion and enables it to see that justice is done to ‘both’ sides; and also to witnesses if they are present: a matter on which we shall dwell later. (33) We have seen that if the defendant does not appear at the first hearing, the Court can proceed ‘ex-parte’, which means that it can proceed without a written statement; and O.9 Rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences entailed by O.8, R.10 must be suffered. What those consequences should be in a given case is for the Court, in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice; an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.” 7 6. There was a conflict, between the learned Single Judge of this Court as to when a judgment can be said to be a judgment under Order 8 and when it can be said to be an ex-parte judgment under Order 9. The matter was considered by a learned Division Bench of this Court in the case of Dhanvantrai R. Joshi & Ors. Vs. Satish J. Dave & Ors. reported in 1998 (4)ALL MLR 509. The learned Division Bench observed that considering the scheme of Order 8 Rule 5 or Rule 10 as well as Order 9, it is apparent that both operate in different fields. The learned Division Bench noted that if judgment passed under Order 8 Rule 5(4) on failure to file written statement or interms of Order 8 Rule 10 on failure to file written statement, within time fixed, the Court can pronounce judgment. If the judgment is pronounced, the decree is required to be drawn up and such a decree cannot be considered as ex-parte decree as contemplated under Order 9 Rule 6. In so far as Order 9 is concerned, the Court observed that Order 9 Rule 1 provides that on the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future date fixed by the Court. Even on adjourned date, if neither party appears, the suit may be dismissed as provided under Order 9 Rule 3. If the defendant fails to appear on the date of hearing, the Court is required to pass an order that the suit be heard ex-parte and to proceed further with the hearing of the 8 suit. This requires recording of evidence and to proceed with the matter. After recording evidence ex-parte, the Court may pronounce judgment. In such case, the suit is not disposed of as provided under Order 8 Rule 5 or Rule 10. 7. In our opinion, considering the facts of this case, the learned judge was right in holding that the suit was proceeded under Order 9 and the judgment was not a judgment under Order 8 of the Code of Civil Procedure, 1908. Once the judgment was passed ex-parte, it was open to Respondent herein to move under Order 9 Rule 13. 8. In such case, the only question that the Court must address itself to, is whether the parties seeking to set-aside the judgment make out a case of sufficient cause. In the instant case, after examining the record, the learned Court came to the conclusion that sufficient cause had been shown and exercised its discretion to set-aside ex-parte judgment by imposing costs. Once discretion is exercised and that discretion has been exercised properly, it is not for the Appellate Court even if it is of the view that a different view could have been taken to interfere in the exercise of the discretion. 9 9. In our opinion therefore, there is no merit in the Appeal, which is accordingly dismissed. Each party to bear their own costs. (R. V. MORE, J.) (F. I. REBELLO, J.)