-1- 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.781 OF 1982 APPEAL NO.781 OF 1982 APPEAL NO.781 OF 1982 Mrs.Mini Muneshwor Nath Kaul @ Mrs.Mini Umashankar Prasad Singh ...Appellant vs. Topeshwarnath Kaul (since deceased by his L.R.) Veena wd/o Topeshwarnath Kaul ...Respondent Mr.Anwar Landge with Mr.K.V.Kurup for the Appellant Ms Rekha Shukla for the Respondent No.1 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 4, 2008. : APRIL 4, 2008. : APRIL 4, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel for the Appellant were heard on 26th March 2008. On account of paucity of time, the Judgment could not dictated immediately. Therefore, the Appeal was kept for dictation of the Judgment yesterday i.e on 3rd April 2008. As the Record and Proceedings of the suit was sent back to the Department, the judgment could not be dictated and the Appeal was kept today for that purpose. On none of the earlier dates, the Respondent had appeared. Today, the learned counsel for the Respondent appeared. By way of indulgence, I have permitted her to make submissions. 2. The challenge in the First Appeal is to the Judgment and Decree dated 27th March 1981 passed by the learned Judge of the City Civil Court, Bombay in a suit filed by the Respondent-Plaintiff. The appellant is the original -2- defendant. 3. The Respondent-plaintiff filed a suit for possession of the suit premises bearing room No.35 with rear balcony, sanitary block, store room and lobby forming part of the flat bearing room no.35-36 situated on the third floor of the building namely Ram Niwas at Dr.Ambedkar Road, Bombay 400 012. A prayer was also made for damages at the rate of Rs.25/- per month and also for mesne profits. 4. The case made out in the plaint is that the Respondent was the tenant of the flat consisting room nos.35-36 as well as another flat consisting room nos.40-41 in the same building. Each flat consists of two rooms, bathroom, w.c. lobby and store room. It is the case of the Respondent that the tenancy in respect of the two flats stood in the name of the elder brother of the original plaintiff by the name Muneshwar Nath. It is stated that said Muneshwar Nath in the year 1961 requested the landlord to transfer the tenancy in the name of the original plaintiff. However, the transfer of tenancy was not effected and the it is alleged that the tenancy of both the flats continued in the name of Umashankar in his capacity as the eldest member of the entire family. Said Muneshwar Nath Kaul died on 14th July 1969 and thereafter the tenancy of the two flats was transferred in the name of the original plaintiff. -3- 5. The allegation in the plaint is that in the year 1968, the Muneshwar Nath had allowed the Appellant-defendant to stay with him as a guest in the flat bearing Nos.35-36. It is alleged that the member of the family of the original plaintiff had free access to the said flat no.35-36 as the same was interconnected to the other flat no.40-41. It is alleged that the joint family of the original plaintiff was paying the rent in respect of both the flats. 6. By an Advocate’s letter dated 28th July 1969 the original plaintiff and his brothers called upon the Appellant-defendant to remove herself from the flat. Though there was no reply sent to the said notice, the Appellant-defendant filed a civil suit in the City Civil Court against the respondent-plaintiff and his brother contending that she was the widow of the said Muneshwar Nath and was staying with their alleged son Vikram Singh in the suit premisses. The allegation was that the Respondent-plaintiff was trying to oust her. It is alleged that the Appellant-defendant secretly locked the door of the suit flat. 7. The case made out in the present suit by the Respondent-plaintiff is that even the room 36 was occupied by the Respondent. It is stated that after the demise of brother Muneshwar Nath, room nos.35-36 were kept closed. It is stated -4- that though the room no.36 was in possession of the respondent-plaintiff, room no.35 with rear balcony, sanitary block, lobby and the and store room continued to be occupied by the Appellant-defendant. The possession is sought in respect of the said room no.35 along with the rear balcony, sanitary block, lobby, store room. The allegation in the suit is that the Appellant-defendant is a trespasser. The contention of the Respondent-plaintiff is that the real name of the Appellant-defendant is Mrs.Mini Umashankar and the said fact was pointed out by the Respondent-plaintiff in the suit filed by the Appellant-defendant. It is stated that the Appellant defendant is the wife of One Umashankar P. Singh who is having a flat at Colaba, Bombay. It is stated that in the suit filed by the Appellant-defendant she obtained exparte injunction. 8. By the impugned Judgment and Decree, the said suit was decreed in terms of prayer clause (a), (c) and (i). Prayer (a) is regarding decree for possession, prayer (c) is regarding determination of mesne profits and the prayer (i) is for costs. 9. The submission of the learned Advocate for the Appellant is that the impugned decree has been mechanically passed in purported exercise of power under sub rule 2 of Rule 5 of Order VIII of the Code of Civil Procedure,1908 without -5- considering the merits of the case made out by the Respondent-plaintiff. He invited my attention to the decision of the Division Bench of this court in case of Principal Collector of Customs and another vs. M/s.Capital Colour Lab Pvt.Ltd. [2007 (6) Mh.L.J. page 225] and submitted that the impugned decree has been passed without any application of mind and the same deserves to be quashed and set aside. 10. The learned counsel for the Respondent submitted that the Appeal was dismissed in default on two occasions and the same has been restored. She stated that before the restoration of the Appeal after the last dismissal, the decree has been executed. She pointed out several subsequent events which have taken place since then. She submitted that it will be unjust to set aside the decree passed in the year 1981 in the suit of the year 1969 especially when the Appellant has no right,title or interest in respect of the suit premises. 11. I have carefully considered the submissions. The impugned Judgment reads thus : . "Written statement not filed. . Rent receipts dated 31st January 1970 taken on record and marked (exhibit ‘A’). Copy of Advocate notice along with acknowledgement taken on record Marked (exhibit ‘B’ colly). -6- . Decree in terms of payer (a), (c) and (i) under Order VIII, rule 5 (2) of Civil Procedure Code. Future mesne profits to be recovered on payment of necessary court fees. . The cost payable to the Plaintiff includes the cost of the Receiver. Receiver to take possession from the Defendant and hand over it to the Plaintiff. Court Receiver discharged without passing accounts on payment of his costs, charges and expenses if any." 12. It will be necessary to refer to the decision of the Division Bench in case of Principal Collector of Customs and another (supra) where the Division Bench has considered the law relating to the disposal of the suits by invoking the provisions of Rule 5 or Rule 10 of Order VIII of the said Code. The Division Bench observed that even if the recourse is taken to sub rule 2 of Rule 5 of Order VIII of the said Code, the law contemplates that the court is required to pronounce the Judgment on the basis of the facts contained in the plaint. Division Bench held that the Judgment will have to be in consonance with definition of Judgment under section 2(9) of the said Code. The Division Bench, therefore, held that the court while proceeding to pronounce the Judgment has to consider the facts stated in the plaint. The court has to -7- also consider whether those facts given in the plaint reveal any right in favour of the plaintiff to seek the relief claimed. The court has to also consider whether the law applicable to the facts disclosed in the plaint would entitle the plaintiff to seek prayers which are asked for. In paragraph 8 of the said decision, the Division Bench has held thus : "8. Plain reading of Rule 5 as well as 10 of Order VIII would disclose that in case the defendant fails to file written statement, the court is empowered to dispose of the suit by pronouncing a judgment. Rule 5 specifically says that such pronouncement of a judgment could be on the basis of the facts contained in the plaint. However, in both the cases, there has to be a judgment. The term "judgment’ has been defined in section 2(9) of the Code of Civil Procedure to mean a statement given by the Judgment on the ground of a decree or order. The term "order" has been defined under section 2(14) to mean the formal expression of any decision of a Civil Court which is not a decree, and a decree in terms of section 2(2) signifies a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the mattes in controversy in the suit. Obviously, therefore, the Court while proceeding to pronounce a -8- judgment has to consider the facts stated in the plaint, whether those facts reveal any right in favour of the plaintiff to seek relief claimed for, or whether the law applicable to the facts disclosed in the plaint would entitle the plaintiff to seek prayers asked for, and on consideration of the facts disclosed in the plaint and applying the law relevant to the matter, the Court can proceed to pronounce the judgment and only on pronouncement of such judgment, a decree can be drawn up. In paragraph 11 of the decision, the Division Bench has held thus : "11. Disposal of a suit, either under Rule 5 or Rule 10 of Order 8, has essentially to be based on the facts disclosed in the plaint. The impugned order discloses the consideration of law which could entitle the plaintiff to seek relief in the form of prayer clauses (a) and (d) on the basis of the facts stated in the plaint or even on the documents which are stated to have been pronounced by the plaintiffs. Apparently, the impugned order has been passed mechanically without application of mind." 13. In the present case, the decision of the Division Bench will squarely apply as there is no consideration of the averments made in the plaint as well as the documents relied -9- upon by the original plaintiff. As held by the Division Bench, the impugned Judgment cannot be read as a valid Judgment. The impugned Judgment is completely contrary to the principles laid down by the Division Bench in the aforesaid cases. 14. Therefore, the result is inevitable. Decree will have to set aside and an order of remand will have to be passed. It is true that the consequence of passing such an order will be very harsh especially when the suit is of the year 1969. However, the law laid down by the Division Bench will have to be followed and the matter will have to be taken to the logical end. As the Appellant now wants to defend the suit, suitable conditions will have to be imposed as regards payment of costs so that the Respondent-plaintiff can be compensated. I propose to quantify the costs in the sum of Rs.7,500/-. After remand, the suit will have to be disposed of in a time bound schedule. 15. The learned counsel for the Respondent-plaintiff tried to argue on the basis of certain subsequent events. However, those events cannot be considered while deciding this Appeal and after the order of remand, it will be open for the Respondent-plaintiff to apply for appropriate interim relief in the suit. -10- 16. Hence, I pass the following order : i) Impugned Judgment and Decree dated 27th March 1981 is quashed and set aside and the S.C.Suit No.7549 of 1969 is restored to the file. ii) Parties are directed to appear before the learned Principal Judge of the City Civil Court on 3rd July 2008 at 11.00 a.m. iii) The learned Principal Judge will assign the suit to the appropriate court. iv) It will be open for the Appellant-defendant to file the written statement on or before 8th July 2008 subject to condition of paying costs of Rs.7,500/- to the Respondent on or before 1st July 2008. Deposit of the amount in the trial court within stipulated time will be treated as a sufficient compliance. It is made clear that if the Appellant fails to comply with the order regarding payment of costs, written statement of the Appellant shall not be accepted. It is also made clear that even if compliance is made regarding order of payment of costs, the trial court will not permit the Appellant to file the written statement after the date fixed by this court. -11- v) It will be open for the Respondent-plaintiff to apply for appropriate interim relief. vi) The trial court will decide the suit as expeditiously as possible and in any event on or before 31st December 2008. vii) All contentions of the parties on merits of the suit are expressly kept open. viii) Appeal is partly allowed in above terms. ix) The parties and the trial court to act upon an authenticated copy of this Judgement. . The learned Advocate for the Respondent seeks stay of this order. The operation of this order will remain stayed till 30th June 2008. JUDGE JUDGE JUDGE