IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.709 OF 2007 NO.709 OF 2007 NO.709 OF 2007 IN NOTICE OF MOTION NO.4353 OF 2006 IN SHORT CASE SUIT NO.2735 OF 1984 The Malegaon Sahakari Sakhar Karkhana Ltd., being a Society registered under the provisions of Maharashtra Co-operative Society Act, 1960, and having its Registered Office at Malegaon BK. (Shivnagar), Taluka Baramuti, Dist. Pune. ... Appellant Vs. 1) Abdul Rehman Antulay of Bombay R/o A-1 Sabah, Netaji Subhash Road, Bombay - 400 002. 2) Ramrao Wamanrao Adik, residing at Udyan, N.Dabholkar Road, Malbar Hill, Mumbai - 400 006. 3) Rafiq Zakaria, M.P. M.H. No.41, Sea Land, Colaba, Bombay - 400 005. 4) R.R.Bhole, M.P. Shalaka, Karve Road, Bombay - 400 032. 5) Ajit Kerkar, Taj Mahal Hotel, Apollo Bunder, Bombay - 5. 6) P.G.Gavai, Lieutenant Governor, Union Territory of Delhi 7) Justice R.L.Agarwal, Rockey Hill Flats, N.Dabholkar Marg, Bombay - 400 032. 8) Justice B.A.Masodkar, Sarang, General Bhosale Marg, 2 Bombay - 400 032. 9) P.K.Sawant, Prashanti Mangaldham Cooperative Housing Society Ltd., Building No.4, 2nd Floor, Sion Trombay Road, Mumbai - 400 022. 10) Pramod Navalkar, M.L.C. Sheth Nauroji Street, Thakurdwar, Bombay - 400 002. 11) P.G.Salvi, 17, Yashodhan, Dinshaw Vaccha Road, Churchgate, Bombay - 400 020. 12) G.G.Kudalkar, Kudalkar’s Bunglow, Opp. Star Textiles Colony, Manpada, Dombivali (E), Dist. Thane. 13) D.B.Karnik, A-68, Adarsh Nagar, Worli, Bombay - 400 025. 14) N.M.Tidke, M.L.C. Spring Mill Compound, Naigaon, Mumbai - 400 014. 15) Ismail Kanga, Kalpataru, G.D.Deshmukh Marg, Mumbai - 400 026. 16) R.S.Gavai, C/o Pratibha Pratishthan, Industrial Assurance Building, 5th Floor, Churchgate, Mumbai - 400 029. 17) Dr.Jaywant Shamrao Patil, C-27, Indrapuri Cooperative Housing Society Ltd., Vile Parle, Mumbai - 400 057. 18) Sunil Dutt Sunrise, 24th Road, Bandra (W), Mumbai - 400 050. 19) Daji Bhatwadekar, Sir Bhalchandra’s Bunglow, 215, Raja Rammohan Roy Road, 3 Girgaum, Bombay - 400 004. .... Respondents. Mr.Shivajirao Satpute i/b Satpute & Co., for the Appellant. None for the Respondents. CORAM CORAM CORAM : R.M.S.KHANDEPARKAR & : R.M.S.KHANDEPARKAR & : R.M.S.KHANDEPARKAR & P.B.MAJMUDAR, P.B.MAJMUDAR, P.B.MAJMUDAR, JJ. JJ. JJ. DATE DATE DATE : 9TH JUNE, 2008 : 9TH JUNE, 2008 : 9TH JUNE, 2008 ORAL ORAL ORAL ORDER (Per R.M.S.Khandeparkar, J) ORDER (Per R.M.S.Khandeparkar, J) ORDER (Per R.M.S.Khandeparkar, J) :- 1) Heard. 2. The appeal challenges the order dated 11-09-2007 passed in the Notice of Motion No.4353 of 2006 in Suit No.2735 of 1984. The challenge to the impugned order is two fold. Firstly, that in view of order dated 13-11-2006 passed in Notice of Motion No.2509 of 2006, the Court could not have even entertain the Notice of Motion No.4353 of 2006 bearing in mind the principle of res-judicata and proviso in the Section 11 of Code of Civil Procedure Code. Secondly, since the suit was disposed of by decree dated 15-06-2006 under Order VIII Rule X of Code of Civil Procedure, no remedy other than appeal was available to the aggrieved party and therefore, the said decree could not have been set aside in the Notice of Motion by the 4 same Court. To lend credence to these contentions, reliance is placed in the decision of the Hon’ble Apex Court in the case of Dhanwantrai Dhanwantrai Dhanwantrai R. R. R. Joshi & Ors. V/s. Satish J. Dave & Ors., Joshi & Ors. V/s. Satish J. Dave & Ors., Joshi & Ors. V/s. Satish J. Dave & Ors., reported in 1998(3) Mh.L.J. 924. 3. The impugned order read thus : - 1. The facts in this Notice of Motion are identical to the facts in Review Petition No.30 of 2005 in Suit No.3088 of 1984. In view of the order dated 29-06-2006 in the said Review Petition, the Notice of Motion is made absolute in terms of prayers (a), (b) and (c) only in respect of the Defendant No.1 as this Notice of Motion is taken out only by the Defendant No.1. 2. Defendant No.1 waives service of the Writ of Summons. 4. A plain reading of the impugned order discloses that the learned Single Judge taking into consideration the order passed on 29-06-2006 in Review Petition No.30 of 2005 in Suit No.8088 of 1984, has passed the impugned order. Perusal 5 of the order dated 29-06-2006 in Review Petition No.30 of 2005 discloses that therein the learned Single Judge while hearing the Review Petition, treating the same as an application under Order 9 Rule 13 of C.P.C., had set aside the ex-parte decree in Suit No.8088 of 1984, taking into consideration the fact that the suit was sought to be disposed of and decreed, ignoring the fact that the defendant therein was not at all served with the summons. 5. In the case at hand, it is not in dispute that the defendants were not served with the summons. In those circumstances, applying the same which was followed in Suit No.8088 of 1984, the learned Single Judge has set aside the decree passed in the present suit and had ordered the service of summons upon the defendants by the impugned order. The order therefore, is apparently passed bearing in mind the principles behind Order 9 Rule 13 read with 151 of Code of Civil Procedure. Even otherwise, when there is any illegality disclosed to the Court in the matter of disposal of a suit, nothing would prevent the Court from passing an appropriate order in the interest of justice. The inherent powers are essentially meant to be 6 exercised whenever justice demands so. If the suit is disposed of even when summons to the defendants have not been served, it would apparently amount to injustice and when this fact is brought to the notice of the Court, it would not bar the Court from recalling the decree and passing the appropriate order giving proper opportunity to the defendants to defend the same. However, we do not find any illegality on the part of the learned Single Judge while passing the impugned order. 6. It is also to be noted that the original decree dated 15-06-2006 was apparently passed in exercise of powers under Order 8 Rule 10 of C.P.C. Undisputedly, the said decree was passed in the suit filed in Original Side of this Court. The provisions of Order 8 Rule 10 of Code of Civil Procedure, are not applicable to the original side prior to 21 years. The law on this point is well settled by a catena of decisions. The decision of the Division Bench in the case of Iridium India Iridium India Iridium India Telecom Telecom Telecom Ltd. V/s. Motorola Inc, reported in Ltd. V/s. Motorola Inc, reported in Ltd. V/s. Motorola Inc, reported in (2004) (2004) (2004) 1 Mh.L.J. 532 1 Mh.L.J. 532 1 Mh.L.J. 532 has been duly approved by the Apex Court in that regard and followed in various subsequent decisions by this Court. 7 7. There are specific provisions under Original Side Rules which are required to be followed by the Court in case the defendant fails to file written statement in spite of service of summons. In any case, considering the fact that the defendant in the case was not at all served and ignoring the said fact the decree was passed on 15-06-2006, there was no illegality committed by the Court by passing the impugned order and therefore, we do not find any case for interferance in the said order. The decision of the Division Bench in the case of Dhanwantrai R. Joshi (Supra) has no application to the facts of the instant case and hence, not at all attracted in the present case. In the circumstances, therefore, we find no case for interferance and the appeal is therefore, dismissed. ( R.M.S.Khandeparkar, J. ) R.M.S.Khandeparkar, J. ) R.M.S.Khandeparkar, J. ) ( P.B.Majmudar, J.) P.B.Majmudar, J.) P.B.Majmudar, J.)