ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.2263 OF APPEAL NO.2263 OF APPEAL NO.2263 OF 2007 2007 2007 M/s.Standard Plastics, ...Appellants. (Orig.Defendants) Vs. M/s.Quality Brush Company, ... Respondents. (Orig.Plaintiffs) Mrs.V.N.Bangera for the Appellants. None for the Respondents. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 4th June, 2008 : 4th June, 2008 : 4th June, 2008. P.C. P.C. P.C. . By order dated 26/10/2007, this Court has issued notice to the Respondents indicating that this appeal would be disposed of finally at the admission stage. Though served, none appeared for the Respondents. 2. The basic contention raised in the present matter is that no opportunity whatsoever, was given to the Appellants- Orig.defendants and therefore, the impugned order granting the relief in terms of prayer clauses (a) to (f) is unjust and against the principle of natural justice. 3. On going through the judgment, the relevant portion to set aside the impugned judgment is as ( 2 ) under:- . "The defendant though represented have failed to file their written statements. The defendants as well as their advocates have been given notice of the hearing of the suit. The defendants advocate has withdrawn his appearance for want of instructions. The averments in the plaint are not controverted. The plaintiffs are entitled to a decree under the provisions of Order-8, Rule 5 & 10(2) of the Code of Civil Procedure." 4. Therefore, admittedly from the record one thing is clear that the defendants’ advocate withdrew his appearance for want of instructions and therefore no one represent the defendants on the date when the impugned ex-parte judgment and decree has been passed. The defendants would not be punished in this background as the advocate for the defendants, for want of instructions, withdrew his appearance. Whatever may be the circumstances, including default of defendants to instruct his advocate but still it remains that the defendants, at the relevant time, not represented to contest the matter. ( 3 ) 5. The second facet is that there is no written statement is filed still based on the material available on record. The defendants and his advocate have full rights to participate in the proceedings, that also admittedly not granted as on the date itself the decree was granted in terms of prayer clauses (a) to (f). 6. The submission that such decree ought not to have been passed on the available material on record is of no consequence. In view of above findings as I am convinced that the case is made out by the Appellants to interfere with the impugned Judgment and order. 7. In the result, the first appeal is allowed. The decree and Judgment of the suit dated 28th September, 1999 is quashed and set aside. The matter is remanded back to the City Civil Court at Bombay. The City Civil Court after hearing both the parties in this background, dispose of the suit as early as possible, considering the order of the matter. 8. The Appeal is accordingly allowed. ( 4 ) . No costs. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)