: 1 : Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2092 OF 2007 FIRST APPEAL NO.2092 OF 2007 FIRST APPEAL NO.2092 OF 2007 IN IN IN B.C.C.C.S.C. SUIT NO.4265 OF 2002 B.C.C.C.S.C. SUIT NO.4265 OF 2002 B.C.C.C.S.C. SUIT NO.4265 OF 2002 1.Shree Hari Co-operative Housing . Society Ltd., Mumbai . situated on the plot of land bearing . CTS No.111/1, House No.12, . Municipal Ward No.K 11975(1), . Ramkrishna Mandir Marg, . Village : Kondevita, . Taluka : Andheri (East), Mumbai-400059 . 2.FM India Holdings, . Thru’ Fatesh Mirchandani, . 9, Laxmi Mahal, Off : Turner Road, . Bandra (West), Mumbai - 400050 ...Appellants V/s. 1.Ajitha Mohan Kumar Nair, . 204, Shalimar Building, Lala . Nikam Road, Colaba, Mumbai-400005 . 2.Anugrugha Builders Pvt, Ltd. . 1/75/03, New Heaven, Sector No.4, . Nerul, Navi Mumbai . 3.M.B.P. Bhushan, Managing Director, . Anugruha Builders Pvt. Ltd., . 1/75/03, New Heaven, Sector No.4, . Nerul, Navi Mumbai. ...Respondents Mr.S.D. Patil, Advocate, for the Appellants. Mr.E.A. Sasi, Advocate, for the Respondents. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 24TH JANUARY, 2008. DATE : 24TH JANUARY, 2008. DATE : 24TH JANUARY, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. The submissions of the learned Advocates : 2 : appearing for the parties were heard on the last date. Considering the nature of the impugned judgment and decree, the Appeal was taken up for final disposal at the admission stage. 2. The 1st respondent is the original plaintiff. The 1st respondent filed a suit for declaration and mandatory injunction. The present appellants are the defendant Nos.3 and 4. By the impugned judgment and decree dated 8th April, 2004, the suit was decreed. 3. The submission of the learned Advocate for the appellants is that the learned Trial Judge could not have invoked provisions of Rule 10 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). He submitted that no reasons have been recorded for passing the decree. It is submitted that even in a case where Rule 10 of Order VIII of the said Code can be invoked, the Court is under an obligation to consider the merits of the case and to pronounce a judgment on merits. He has placed reliance on certain decisions of the Apex Court as well as this Court. 4. The submission of the learned Counsel for the 1st respondent-plaintiff is that sufficient reasons : 3 : have been recorded by the learned Trial Judge while passing the decree. It is submitted that after perusing the material on record, the learned Trial Judge found merit in the case of the 1st respondent and therefore he has pass a decree by invoking provisions of Rule 10 of Order VIII of the said Code. 5. I have given careful consideration to the submissions. The roznama of the suit has been annexed to the Appeal compilation. Roznama dated 8th April, 2004 shows that the suit was dismissed for default on that day as the 1st respondent failed to comply with Court’s direction dated 25th March, 2004. On the same day, an oral application was made by the Advocate for the 1st respondent for restoration. The Advocate for the 1st respondent stated that he had intimated the date fixed in the suit to the defendants in the suit by sending notice under a certificate of posting. The Advocate for the 1st respondent tendered the certificate of posting on record and learned Judge restored the suit. The order passed by the learned Trial Judge thereafter reads thus:- "Mr.Sasi is pressing for decree under O-8 R-10 of CPC for want of written statement. I have perused the roznama, earlier : 4 : N/M No.3071/02 was made absolute in terms of prayer (a) only. As premises was not ready, in view thereof prayer (b) of that N/M for appointment of Receiver was not granted. Now, plaintiff states that premises is ready and the same is lying vacant. He has produced the photographs showing the construction of entire building. The photograph taken on file. P.C.: Suit decreed in terms of prayer (b) and (c). However, there will be no order as to costs. Before execution of this order, the plaintiff shall communicate today’s order to the defendants within one week from today and thereafter execute the said order." 6. Perusal of the said order shows that the learned Judge has invoked Rule 10 of Order VIII of the said Code. A Division Bench of this Court in the case of All India Central Bank Employees Congress & Ors. V/s. Central Bank of India, [2007 (3) Mh.L.J. 534] had occasion to consider the scope of the power of the Court under Rule 10 of Order 8 of the said Code. The Division Bench considered the law laid down by the Apex Court in the case of Balraj Taneja & Anr. V/s. Sunil Madan & Anr., AIR 1999 SC 3381. Paragraph No.8 of the decision of the Division Bench reads thus:- "8. Rule 10 of Order VIII of the Code provides that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time : 5 : permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. The provisions of law comprised under Rule 10 of Order VIII of the Code, therefore, clearly provide that failure on the part of any party to file written statement in spite of the due service of the summons would empower the Court to pronounce judgment against such defendant or to make such order in relation to the suit as it may think fit. It also provides that on pronouncement of such judgment, a decree should be passed. Obviously therefore, when a suit is to be decreed under Order VIII, Rule 10, it has to be by way of pronouncement of judgment. The term "judgment" has been defined under section 2(9) of the Code to mean the statement given by the Judge on the grounds of a decree or order. The judgment to be pronounced in relation to the suit in exercise of the power under Order VIII, Rule 10 of the Code therefore should disclose the grounds which could sustain the reliefs which can be granted in exercise of the power under the said provision of law." (Emphasis added). 7. In paragraph Nos.9 and 10, the Division Bench observed thus:- "9. The very expression "Judgment" discloses that the Court will have to take into consideration the facts pleaded in the plaint and to ascertain the provisions of law applicable to those facts in order to find out whether the relief claimed on the basis of those facts can be granted or : 6 : not. Merely because there is no denial of the facts stated in the plaint, it will not be imperative for the Court to decree the suit in exercise of the power under Order VIII, Rule 10 of the Code, without even application of the mind and without even ascertaining as to whether in the facts and circumstances disclosed from the plaint and the law applicable thereto, the plaintiff would be entitled to seek the relief asked for or not. 10. The decision in Dhanwantrai R. Joshi’s case (supra).................. . Evidently the power under Order VIII, Rule 10 of the Code is in the nature of discretion given to the Court to pronounce judgment on the basis of the facts contained in the plaint. Obviously, therefore, a judgment on the basis of the facts contained in the plaint would require consideration of the facts contained in the plaint. Consideration of the facts in the plaint has to be accompanied by ascertainment of the provisions of law which could justify grant of relief on the basis of the facts stated in the plaint. Merely because the facts are not denied, the Court cannot proceed to grant relief asked for. Relief must be legally available to the plaintiff on the basis of the facts stated in the plaint and in order to ascertain the same, the Court will have to apply its mind to those facts and ascertain the law applicable thereto. Entire exercise in that regard should be revealed from the judgment to be passed under Order VIII, Rule 10 of the Code. It is pertinent to note that the provisions of law comprised under Order VIII, Rule 10 of the Code specifically provide that when the Court proceeds to pronounce judgment, then consequent to the pronouncement of such judgment, the decree has to be : 7 : passed. This very provision which is in the nature of discretion given to the Court on account of failure on the part of the defendants to file written statement discloses an obligation on the part of the Court to exercise its discretion judiciously and not as a matter of course. Even in a case where the pleadings of the parties to the suit disclose that the parties are not at issue on a question of law or fact, undoubtedly in terms of Order 15 Rule 1 the suit can be disposed of, but the same has to be on pronouncement of judgment and not otherwise. Similar is the case in relation to an admission made by the parties to the suit, based on which, that the issue covered by admission can be disposed of by pronouncing judgment under Order XII, Rule 6 of the Code. However, disposal of the suit under all these provisions has to be by way of "pronouncement of judgment" and the judgment as seen above, in terms of section 2(9) is a statement of the Judge on the grounds of a decision or order and further under Order XX, Rule 4, it is clarified that it shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Even in case of small causes, though there need not be statement of the case and details about the reasons for the decision, but there cannot be a judgment without points for determination and the decision thereon." (Emphasis added) 8. In the light of pronouncement of law made by the Division Bench, it will be necessary to refer to the impugned judgment and order which runs only into one paragraph containing 14 lines. The learned Trial Judge has referred to the order passed in the Notice : 8 : of Motion for interim relief. The learned Judge has recorded statement of the learned Advocate for the 1st respondent that suit premises was ready and was lying vacant. The learned Judge took photographs tendered by the 1st respondent on record and straightway proceeded to pass a decree in terms of prayer clauses (b) and (c). Prayer (b) is for declaration regarding validity of the agreement dated 24th January, 2002 and for mandatory injunction for handing over possession of the suit premises. Prayer (c) is also for mandatory injunction. No reasons have been recorded by the learned Trial Judge as regards proof of the entitlement of the 1st respondent to the drastic reliefs which are granted. There is no consideration of the merits of the case made out by the 1st respondent. The law contemplates pronouncement of judgment when Rule 10 of Order 8 of the said Code is invoked. The Trial Court was required to take into consideration the facts pleaded in the plaint and to ascertain after considering the relevant provisions of law as to whether the reliefs as prayed could be granted. The said exercise has not been done by the Trial Court. The Judgment and Order of the Trial Court is very cryptic and shows complete non application of mind. : 9 : 9. Only on this ground, the impugned judgment and decree deserves to be quashed and set aside and the suit deserves to be remanded to the Trial Court. The submission of the learned Advocate for the appellants is that the appellants be permitted to file written statement. The suit is of the year 2002. Therefore, the appellants will have to pay reasonable costs to the original plaintiffs. The cost is quantified at Rs.7,500/-. Hence, I pass following order:- "O R D E R" "O R D E R" "O R D E R" (a). The impugned judgment and decree dated 8th April, 2004 is quashed and set aside. (b). S.C. Suit No.4265 of 2002 is restored to the file. (c). Parties are directed to appear before the learned Trial Judge on 10th March, 2008 at 11:00 a.m. It will be open for the appellants to file written statement on the said date subject to condition of the appellants paying or depositing with the Trial Court, a sum of Rs.7,500/- within a period of six weeks from today by way of costs payable to the 1st respondent. : 10 : (d). It is clarified that interim order which was in operation during the pendency of the suit is also restored. It will be open for the 1st respondent to apply for further interim relief, if any. (e). The Trial Court will decide the suit as expeditiously as possible. (f). All contentions of the parties on merits of the suit are expressly kept open. (g). Appeal is partly allowed in the above terms. (h). Parties and Trial Court to act upon authenticated copy of this order. 10. In view of this judgment, the Civil Application, if any, does not survive and the same is disposed of accordingly. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]