: 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.1775 OF 2007 FIRST APPEAL NO.1775 OF 2007 FIRST APPEAL NO.1775 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.4158 OF 2005 CIVIL APPLICATION NO.4158 OF 2005 CIVIL APPLICATION NO.4158 OF 2005 1.Praful Vasani . 2.Suresh Vasani . both residing at Khairani Road, . Saki Naka, Mumbai - 400072. ...Appellants V/s. 1.Mohammed Yunus Khan, Deceased, Thru’ 1(a).Sehrunnissa Mohd. Yunus Khan 1(b).Mohamed Khalid Yunus Khan 1(c).Mohamed Amir Yunus Khan 1(d).Rifa Mohd. Yunus Khan 1(e).Arfa Mohd. Khalid Yunus Khan 1(f).Shabana Mohd. Khalid Yunus Khan 1(g).Sahista Mohd. Yunus Khan 1(h).Shagufta Mohd. Yunus Khan 1(i).Sabista Mohd. Yunus Khan 1(j).Razia Mohd. Yunus Khan 1(k).Sultan Mohd. Yunus Khan all residing at C/1, Ashiyana Society, Tilak Nagar, Link Road, Saki Naka, Mumbai - 400072Respondents 2.Chittaranjan C. Sharma 3.Narottam C. Sharma both residing at Prem Kutir, Near I.I.T. Powai, Mumbai-400076. Mr.D.V. Merchant with Mr.P.S. Shah, Advocates, i/b. Sheetal Chhalria, for the Appellants. Mr.Suresh Dubey, Advocate, for Respondent Nos.3 (not present). CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 29TH JANUARY, 2008. DATE : 29TH JANUARY, 2008. DATE : 29TH JANUARY, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard the Counsel appearing for the : 2 : appellants. On 29th November, 2007, a notice for final disposal at the admission stage was issued to the respondents. The office noting shows that the respondent No.3 is represented by an Advocate and the respondent No.1(f) and 2 are duly served. Moreover, there is an affidavit of service filed by the Advocate for the appellants stating therein that the respondent Nos.1(a) to 1(e) have been served with the private notice. In view of statement in the affidavit of service, the Appeal is taken up for final disposal. 2. The appellants are the original defendant Nos.3 and 4. The respondent Nos.1(a) to 1(k) are the legal representatives of the original plaintiffs. The challenge in this Appeal is to the judgment and decree dated 11th April, 2002 passed by the Trial Court. By the impugned judgment and decree, a decree of perpetual injunction has been passed against the appellants. The decree has been passed under Rule 10 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). 3. The submission of the learned Counsel appearing for the appellants is that no reasons have been recorded for passing a decree. It is submitted that under Rule 10 of Order VIII of the said Code, the : 3 : Trial Court is required to consider the merits of the case made out by the plaintiffs and has to pronounce a judgment. It is submitted that as the decree has been passed without considering the merits of the case made out by the plaintiffs, the same deserves to be quashed and set aside. 4. I have carefully considered the submissions. It will be necessary to refer to the impugned judgment and order which reads thus:- "11.4.2002 Coram : His Honour Judge Shri S.J. Shah. Mr.S.K. Dubey, Advocate, for the Plaintiff, Defendants and Advocate absent. Mr.Dubey states that today’s intimation was sent to the Defendant’s advocate vide letter dated Nil sent on 1.3.2002 under Certificate of Posting taken on file. Since the Defendants have failed to file their written statement and failed to appear before this Court. in view thereof, Mr.Dubey is pressing for decree under Order-8, Rule 10 of the Civil Procedure Code for want of written statement. Though Defendants have waived the service of writ of summons on 19.4.1995, since then they have not filed any written statement. Per Coram: Suit decreed under Order-8, Rule 10 of the Civil Procedure Code in terms of prayer (a) with no order as to costs. Decree to be drawn accordingly." 5. A true copy of the Roznama of the proceedings has been annexed to the Appeal compilation. The : 4 : Roznama shows that the present appellants and the other two defendants were represented by an Advocate. Ad-interim injunction was granted by the learned Trial Judge. Ultimately on 28th August, 1995, the ad-interim order was vacated and Notice of Motion taken out by the original plaintiffs was dismissed. Order dated 26th February, 2002 shows that the defendants in the suit waived service of writ of summons through their respective Advocates. The order dated 14th March, 2002, recorded in the Roznama discloses that the Advocate for the plaintiffs was supposed to give intimation of the date fixed to the defendants. The Trial Court ordered that the said Advocate shall give intimation that the suit is fixed for passing ex-parte decree on 26th March, 2002. On 26th March, 2002, the suit could not be taken up as the board was discharged. The impugned decree has been passed on 11th April, 2002 without considering merits of the case made out by the original plaintiffs. The Trial Court has simply observed that since the defendants have not filed written statements, a decree was being passed under Rule 10 of Order VIII of the Code of Civil Procedure. 6. It will be necessary to refer to Rule 10 of Order VIII of the said Code. Rule 10 contemplates : 5 : that where any party from whom a written statement is required, and such party fails to file a written statement within the stipulated time, the Court shall pronounce the judgment against him, or make such order in relation to the suit as it thinks fit. Thus under Rule 10 of Order VIII, the Court has a discretion either to pronounce the judgment against a party who has not filed written statement or to make such order in relation to the suit as it thinks fit. Therefore, the law contemplates that once the Court finds that written statement is not filed by the defendants, the Court has to apply its mind to the facts of the case. In a given case the Court can direct the plaintiffs to lead evidence. The other course open is to pronounce a judgment. Thus, while invoking Rule 10 of Order VIII of the said Code, the Court has to pronounce a judgment. Therefore, the Court has to apply its mind to the facts set out in the plaint and to the documents produced by the plaintiffs and thereafter after applying the relevant law, if the plaintiff makes out a case for passing a decree, the Court has to pronounce a judgment against the concerned defendants. Sub-Rule 2 of Rule 4 of Order XX of the said Code provides that a Judgment must contain a concise statement of the case and reasons for decision. The impugned order cannot be said to be a : 6 : judgment by any stretch of imagination. The impugned order does not show that the Trial Court applied its mind to the facts of the case as pleaded by the plaintiffs and to the documents produced by the plaintiffs. The decree has been mechanically passed without adverting to the merits of the case made out by the plaintiffs and without coming to the conclusion that the plaintiffs are entitled in law to the decree which was sought. Therefore, the only course open is to set aside the decree and to remand the suit to the Trial Court. 7. The appellants waived service of writ of summons on 26th February, 2002, but thereafter did not file written statements. An opportunity deserves to be granted to the appellants to file written statements. 8. Hence, I pass the following order:- "O R D E R" "O R D E R" "O R D E R" (a). The impugned judgment and decree dated 11th April, 2002 is quashed and set aside and the S.C. Suit No.2134 of 1995 is restored to the file of the Trial Court. : 7 : (b). The parties are directed to appear before the Trial Court on 24th March, 2008 at 11:00 a.m. The appellants will file the written statements on the said date and the Trial Court will not grant any further time to the appellants to file written statement. (c). The Trial Court will decide the suit in accordance with law. The hearing of the suit is expedited. (d). All contentions of the parties on merits of the suit are expressly kept open. (e). The Appeal is partly allowed in the above terms with no order as to costs. (f). Parties and concerned Court to act upon authenticated copy of this judgment. 9. In view of the aforesaid Judgment, Civil Application does not survive and the same is disposed of accordingly. : 8 : [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]