1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 201 OF 2009 Pratima @ Rani Hemant Nagarale ) Age: 41 Yrs., Occ: Housewife, ) R/at: C/o. Prashant Dongare, ) A-504, Sarla Garden, Nehru Road,) Vakola Bridge, Santacruz (E), ) Mumbai – 400 055. ) ... ... Appellant. Versus Hemant Namdeorao Nagarale, ) Age: 46 Yrs., Off:Service, ) R/at: 1st Floor, Above Colaba ) Police Station, Colaba, ) Mumbai – 400 001. ) ... ... Respondent. Mr. R. S.Apte, Sr. Advocate with Mr. Vaibhav Patankar for the Appellant. Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. Ravi Prakash Sharma, Mr.S. S. Ghosh and Mr. Rahul Sinha i/by M/s. P. H. A. Advocates, for the Respondent. CORAM : A. M. KHANWILKAR and A. A. SAYED, JJ. DATED : 29TH JUNE, 2010. ORAL JUDGMENT (Per A. M. KHANWILKAR, J.): This appeal is filed against the judgment and order dated 5th October, 2009 2 passed by the Family Court at Mumbai, Bandra, in Misc. Application No. 21 of 2009. The said application was filed by the appellant wife/Original respondent purportedly under Order IX Rule 13 of the Code of Civil Procedure in M. J. Petition No. A-1118 of 2008 for setting aside the exparte decree passed in the said petition dated 2nd February, 2009. The background, in which the judgment and decree was passed by the Family Court on 2nd February, 2009 in M. J. Petition No. A-1118 of 2009 is as follows. 2. The appellant was duly served with the summons on 26th June, 2008. The appellant entered appearance before the Family Court on 3rd July, 2008. The parties were referred to the Marriage Counsellor on the same day. The Marriage Counsellor conducted meeting with the appellant and respondent and also the children who were present in Court. The matter was adjourned at the instance of the appellant as she wanted time to discuss with her lawyer and relatives. The matter was posted on 5th August, 2008. Thereafter, the appellant remained absent on the subsequent dates. It is not necessary to refer to all the dates on which the appellant failed to appear before the Family Court or the Marriage Counsellor. The fact that the appellant did not appear on the subsequent dates before the Court or the Marriage Counsellor after 3rd July, 2008 is not in dispute. It is also not in dispute that no written statement order was passed on 1st October, 2008, which was allowed to become final. It is in this background, the respondent husband took out an application before the Family Court praying to proceed in the matter without written statement of the appellant. That application was filed on 2nd 3 September, 2008 at Exh.13. The Family Court accordingly proceeded with the case without the written statement of the appellant. The Family Court proceeded to finally dispose of the petition by judgment and decree dated 2nd February, 2009 which has been impugned by the appellant independently by way of Family Court Appeal No. 47 of 2010. 3. In so far as the present appeal is concerned, that arises out of the judgment and order passed by the Family Court dated 5th October, 2009 on the application filed by the appellant purportedly under Order IX Rule 13 of the Code of Civil Procedure. In the first place, the Family Court has held that the said application was not maintainable considering the fact that the judgment and decree was passed without written statement of the appellant wife. It was not a case of exparte proceeding within the meaning of Order IX of the Code of Civil Procedure as such. The Family Court has then proceeded to consider as to whether the appellant made out sufficient cause for setting aside the exparte decree so as to give one opportunity to the appellant. Even on that count the Family Court answered the issue in negative against the appellant wife. As a result, the application purportedly made under Order IX Rule 13 came to be rejected by Judgment and order dated 5th October, 2009, which is impugned in this appeal. 4. According to the appellant, the Family Court has committed manifest error in assuming that the judgment and decree passed on 2nd February, 2009 was not an exparte decree which was susceptible to challenge by taking recourse to application under Order IX rule 13. It is then contended that assuming that the 4 Family Court was justified in taking a view that the application as filed was not maintainable considering the fact that the judgment and decree passed against the appellant was not an exparte decree but was a decree passed under Order VIII Rule 10 of the Code of Civil Procedure. Even so, the Family Court has exceeded its authority in examining the merits of the grounds stated in the application by the appellant while considering the issue of sufficient cause. According to the appellant, the Family Court having said that the application under Order IX Rule 13 was not maintainable, the Family Court should have refrained itself from examining any other issues raised either by the appellant or for that matter by the respondent. It is lastly contended that the conclusion reached by the Family Court that the appellant has not made out sufficient cause for setting aside the impugned judgment and decree is untenable and manifestly wrong. 5. In support of the above submissions, the appellant has placed reliance on the various decisions which form part of the two paper books filed on behalf of the appellant. However, during the course of argument, reliance was placed on the authorities to which we shall presently advert to at the appropriate stage. 6. The respondent, on the other hand, contends that no fault can be found with the opinion recorded by the Family Court either on the issue of maintainability of the application filed by the appellant or for that matter on the factual matrix as to whether the appellant had made out sufficient cause for non- appearance during the proceeding. 7. The first question, which needs to be addressed, is whether the application 5 as filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure was maintainable. For that we will have to examine the background in which the judgment and decree came to be passed by the Family Court on 2nd February, 2009. It is well established that if the order is ascribable to power exercised by the Family Court under provisions of Order VIII of the Code of Civil Procedure, it would necessarily follow that the remedy of Order IX Rule 13 for setting aside the decree will be unavailable. That is the settled legal position. However, if the said judgment and decree is held to be one passed by the Family Court in exercise of power under Order IX of the Code of Civil Procedure, the situation may be different. In that case, the application under Order IX Rule 13 for setting aside exparte decree as filed by the appellant would be maintainable. 8. As aforesaid, after the appellant was duly served on 26th June, 2008, as per the date notified in the summons, she personally appeared before the Family Court on 3rd July, 2008. On the same day the Family Court directed the parties to appear before the Marriage Counsellor. It is also not in dispute that the parties appeared before the Marriage Counsellor along with their children. It is common ground that the appellant asked for time to enable her to discuss the matter with her advocate and relatives. Later on, the appellant failed to appear either before the Court or before the Marriage Counsellor. The matter was posted on different dates on and from 5th August, 2008 until the judgment and decree was passed against the appellant dissolving the marriage on the ground of cruelty. The matter appeared before the Court at least on eight different occasions on and after 5th 6 August, 2008 but the appellant did not appear herself, except on 2nd September, 2008, when her relative made appearance and presented an application for adjournment. Sufficient opportunity was given to the appellant to file her written statement which was not availed of. As a result, the respondent took out application on 2nd September, 2008 to proceed with the matter without written statement of the appellant. Thereafter the Court proceeded with the matter as without written statement of the appellant and pronounced the judgment and decree on 2nd February, 2009. The Family Court relying on the case made out by the petitioner (respondent herein), which were supported by the material filed by the respondent, proceeded to pass judgment and decree dated 2nd February, 2009. 9. As aforesaid the appellant has independently challenged the said Judgment and Decree dated 2nd February, 2009 by a substantive appeal being Family Court Appeal No. 47 of 2010. That appeal was heard along with the present appeal. We are allowing the said appeal by separate judgment today and remanding the matter to he trial Court for reconsideration for reasons mentioned therein. In that sense, the present appeal would not survive for consideration. 10. Be that as it may, the question is: whether the impugned judgment and decree can be said to be exparte decree within the meaning of Order IX of the Code of Civil Procedure or is one under Order VIII of the Code of Civil Procedure. Learned Counsel for the appellant has placed reliance on the decision of the Division Bench of our High Court in the case of Dhanwantrai R. Joshi v/s Satish J. Dave, (1998) 100(3) BLR 884. The said decision of the Division Bench was on 7 the reference made by the learned Single Judge to answer the question as to whether a decree passed in the absence of the defendant and his Counsel is a decree passed under Order IX Rule 6 or is it a decree passed under Order VIII Rule 5 if the same is also passed on the ground that the written statement had not been filed. The Division Bench after considering the various judgments has answered the reference and concluded that the application under Order IX Rule 13 is not maintainable when the Court passes a decree under Order VIII Rule 5 or Rule 10 of the Code of Civil Procedure. Both sides have relied on the same judgment in support of their respective stand. The respondent contends that the order passed in the present case is an order passed by the Court in exercise of power under Order VIII Rule 10 of the Code of Civil Procedure. We may briefly refer to the discussion of this judgment. At the outset, the Division Bench has approved and followed the view taken in the case of Rashtriya Chemicals and Fertilizers Ltd. v/s Ota Kandla Pvt. Ltd., 1992 Mah. L. J. 1266. In the said decision, the Court had noted that where the defendant is served and represented by Counsel, but fails to file his written statement despite opportunity given to him, the decree passed against him would be one under the provisions of Order VIII Rule 10 of the Code of Civil Procedure. For setting aside such decree, an application under Order IX Rule 13 is not maintainable. That view was upheld by the Division Bench of our High Court consisting of P. D. Desai, the Chief Justice and S. H. Kapadia, J. (as they then were). It is also noticed that the said decision in Rashtriya Chemicals and Fertilizers Ltd. was referred to by the another Division Bench of this Court 8 consisting of Ms. Sujata Manohar, the Chief Justice and Dr. B. P. Saraf, J. (as they then were) in Appeal No. 169 of 1994 decided on 31st March, 1994. In the present decision of the Division Bench in the case of Dhanwantrai (supra), the view so taken by the earlier two Division Benches has been followed. The Court then proceeded to examine the efficacy of Order IX and Order VIII of the Code of Civil Procedure. In paragraph 10 on analyzing the provisions, it proceeded to hold that the word “exparte” as mentioned in Order IX Rule 13 has a definite connotation to mean a decree which has been passed after following Order IX Rule 6 of the Code of Civil Procedure. In paragraph 12, the Court has clearly opined that considering the scheme of Order VIII Rule 5 or Rule 10 as well as Order IX, it is apparent that both operate in different fields. It may be relevant to reproduce the extract of paragraph 12, which deals with the said aspect, which reads as under: “12. In our view, considering the scheme of Order VIII Rule 5 or Rule 10 as well as Order IX, it is apparent that both operate in different fields. Order VIII Rule 5 specifically provides that if Defendant fails to file Written Statement as contemplated therein, the Court may pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, or the Court may in its discretion, enquire any such fact to be proved. If the judgment is pronounced on the basis of the facts contained in the plaint, decree is to be drawn in accordance with Order VIII Rule 5(4). Similarly, if a party from whom Written Statement is required under Order VIII Rule 10, fails to present the same within the time permitted or fixed by the Court, the Court is entitled to pronounce judgment against such party, or make such order in relation to the suit as it thinks fit. If the judgment is pronounced, the decree is required to be drawn up. Such decree pronounced on non filing of Written Statement cannot be considered to be an ex-parte decree as contemplated under Order IX Rule 6. These types of decrees are passed because of failure to file 9 Written Statement. Further, in a case where Written Statement is not filed and at the time of hearing even if the Defendant is present, the Court is entitled to pronounce the judgment and pass decree. If the Defendant is absent and the Written Statement as required is not filed, the Court is also entitled to pronounce judgment on the basis of the averments made in the plaint.” (emphasis supplied) 11. Considering the above, the real question is as to whether the judgment and decree passed on 2nd February, 2009 is in exercise of power under Order VIII of the Code of Civil procedure or under Order IX of the Code of Civil Procedure. The fact that the appellant having once appeared after service of suit summons but fails to appear in the proceeding on the subsequent dates does not mean that the Court is proceeding exparte against the party. In such a case, the Court proceeds against the party without the written statement in terms of Order VIII. 12. In the present case, the fact that after service of summons the appellant made appearance before the Court and participated in the proceeding is not in dispute. The appellant was given sufficient time to file written statement but did not avail of the said liberty. It is in this backdrop the Court had no option but to proceed against the appellant without written statement of the appellant. That discretion is available to the court in exercise of powers under Order VIII Rule 5 or Rule 10 of the Code of Civil Procedure. Reliance is also placed on the decision of the learned Single Judge of our High Court in the case of Lachhiram Chudiwala v/s Bank of Rajasthan Ltd., 2006(6) Bom.C.R. 559. In that case the fact situation was that the Defendants were duly served with the suit summons. After service they engaged advocate to represent them in the suit. The suit was 10 adjourned from time to time at the request of the advocate for the defendants who sought adjournment for filing written statement. Inspite of the indulgence shown by the Court, no written statement was filed. On 8th October, 1993 neither the Defendants nor their advocate appeared and as a result the suit came to be set down exparte in their absence and finally disposed of by judgment and order dated 17th October, 1994. While considering the controversy, the learned Single Judge of this Court has essentially placed reliance on the discussion in paragraphs 12 to 15 in Dhanwantrai's case (supra). In paragraph 10 of the said decision, it is noted that where the defendant fails to appear on the date of hearing, under Order IX Rule 6(1)(a), the Court is empowered to pass an order that the suit be heard exparte and then to proceed with the hearing of the suit on the adjourned date. Further, if on the adjourned date of hearing also the defendant fails to appear, the Court after recording of evidence exparte can pronounce the judgment on the basis of the evidence which is brought by the plaintiff. 13. However, in the present case no written statement order is passed vide order dated 1st October, 2008, and the Court decided to proceed against the appellant for want of written statement. The fact that the Defendant or his advocate remained present or absent before the Court on later dates would make no difference. That would not extricate the suit from the application of scheme of Order VIII and the Code. In fact, discretion is bestowed on the Court in terms of Rule 5 and Rule 10 in particular, of Order VIII, to proceed against the defendant without written statement. The Court is duty bound to proceed in the matter 11 under the said provision and pass judgment and order on the basis of which decree has to be drawn up. Absence of the Defendant or the advocate does not mean that the suit is proceeded exparte as such. 14. In matters where no written statement order is passed, just because the Defendant after having appeared in the proceedings on subsequent dates fails to appear personally or through Advocate, that does not mean that the suit would necessarily proceed “exparte” within the meaning of Order IX. That argument cannot be countenanced. We may usefully refer to the decision of the Division Bench of our High Court in the case of Vinayak Shreedhar Kulkarni v/s Chintaman Vaman Kulkarni , AIR 1938 Bombay 470. In that case the defendant initially avoided service for about a year but was eventually served. He was directed to file written statement by 12th June, 1935. The defendant failed to file written statement but applied for further time on the ground of illness. The said application was rejected by the trial court and instead made an order “case is fixed for hearing exparte”. Further, the Judge heard evidence on behalf of the Plaintiff and then passed a decree. Referring to the said facts, the Division Bench has observed as follows: “... It is not uncommon to make an order of that nature where no written statement is put in, but such an order cannot be justified. The Judge should have directed that the case be fixed for hearing in default of written statement. A party is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint; for instance that the plaint discloses no cause of action, or that the claim is time barred. However, the order in this case seems to have been treated as meaning no more than that the suit would be heard in the absence of a written 12 statement, because when the suit was called on, the defendant's pleader was present, and he put in an application that he might be allowed to withdraw. No order was made upon that, but it is quite clear that neither the defendant nor his pleader was in any way prevented from addressing the Court. The learned Judge heard evidence on behalf of the plaintiff, and passed a decree, and then an application was made under O.9, R.13, to have the decree set aside. That application was rejected, and from that order an appeal was summarily dismissed by Macklin J. from whose decree the present appeal is brought. We think there is no case for setting aside the exparte decree. The most we should be prepared to do would be to direct that the defendant be at liberty to be heard on the basis that no written statement had been put in. But we are satisfied that in as much as the defendant was represented at the hearing by his pleader, if he had really had any reason to advance why the plaintiff's claim should not be decreed, he would have advanced it. As I have said, there is nothing whatever to suggest that the Judge prevented him from addressing the Court. In the circumstances, therefore, we think there is no ground for interfering with the order. The appeal is dismissed with costs.” (emphasis supplied) 15. Reverting back to the case of Dhanwantrai (supra) in paragraph 12, the Division Bench has clearly noticed that if the defendant is absent and the written statement as required is not filed, the court is still entitled to pronounce judgment. This statement of law clearly pre-supposes that the power of the Court under Order VIII does not get exhausted merely because the defendant fails to appear on the subsequent dates. The Judgment pronounced in such a situation is no more than the suit being heard in absence of a written statement. In that situation the Court has power coupled with the duty to proceed with the suit in terms of Order VIII Rule 10 of the Code of Civil Procedure. In the present case, the appellant initially appeared in the proceeding after service of suit summons and also participated in the hearing before the Marriage Counsellor and made request for time to file written statement through her relative. It necessarily follows that 13 the stage referable to Order IX had worked out. In our opinion, in the fact situation of the present case, the judgment and decree passed by the Family Court on 2nd February, 2009 is ascribable to Order VIII Rule 10. If it is so, the remedy under Order IX Rule 13 is unavailable. 16. We are in agreement with the view taken by the Family Court that the application as filed by the appellant was not maintainable. At the same time, we are in agreement with the criticism of the appellant that the Family Court having held that the application presented by the appellant was not maintainable under Order IX Rule 13, should not have dealt with the merits of the arguments which were relevant to invoke power under Order IX Rule 13 of the Code of Civil Procedure. We hold that the reasons recorded by the trial Court for rejecting the plea of sufficient cause be treated as effaced from the record. For the same reason, it is not necessary for us to burden this judgment with the grounds put forth by the appellant to justify non-appearance on the relevant dates or for setting aside the judgment and decree on the assumption that the same is an exparte decree. 17. In the circumstances, there is no merit in this appeal and the same should fail. Hence, this appeal is dismissed with the above observations. Sd/- Sd/- (A. A. SAYED, J.) (A. M. KHANWILKAR, J.)