1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.466 OF 2009 IN SUIT NO.1404 OF 1985 Mrs.Shanti Ramchand Bajaj of Bombay, Indian Inhabitant, carrying on business at C/o J.B.Metal Industries Pvt. Ltd., Saki Vihar Lane, Saki Naka, Bombay – 400 072. .... Appellant V/s. 1. Arjandas Teckchand Kashyap 2. Tarachand Arjandas Kashyap Both of Bombay, Indian Inhabitants, carrying on business at 175, Panjra Pole Lane, Bombay – 400 004. ..... Respondents WITH NOTICE OF MOTION NO.3881 OF 2009 IN APPEAL NO.466 OF 2009 IN SUIT NO.1404 OF 1985 Mrs.Shanti Ramchand Bajaj of Bombay, Indian Inhabitant, carrying on business at C/o J.B.Metal Industries Pvt. Ltd., Saki Vihar Lane, Saki Naka, Bombay – 400 072. .... Appellant V/s. 1. Arjandas Teckchand Kashyap 2. Tarachand Arjandas Kashyap 2 Both of Bombay, Indian Inhabitants, carrying on business at 175, Panjra Pole Lane, Bombay – 400 004. ..... Respondents Mr.A.S.Khandeparkar a/w Mr.S.J.Khera and Smt.Suchitra Patra, for the appellant. Mr.V.R.Dhond with Smt.Sonal, Mr.S.K.Srivastav, Smt.Abha Gupta, Ms.S.Shaikh i/by M/s.S.K.Srivastav & Co., for the respondents. CORAM :P.B.MAJMUDAR & R.C.CHAVAN, JJ. DATE : NOVEMBER 13, 2009 ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J. ) 1. Heard. 2. Admit. 3. The learned counsel for the respondents waive service on behalf of the respondents for admission of the appeal. With the consent of the parties, the appeal is taken up for final hearing today itself. 4. By way of this appeal, the appellant/original defendant has assailed the judgment and order passed by the learned Single Judge dated 11-08-2005, by which the learned Single Judge has passed a decree under Order 8 Rule 10 of the Code of Civil Procedure, as the claim of the respondent/original plaintiff in Suit No.1404 of 1985 was not contested by filing written statement. The learned Single Judge also directed that the suit is decreed with interest @ 9% p.a. from the dateof the suit till 3 payment. 5. The aforesaid order was passed by the learned Single Judge on 11-08-2005. The appellant thereafter, preferred this appeal along with a prayer for condonation of delay as it is the case of the appellant that the appellant was not aware for considerable time that the suit is decreed against him. 6. At the time of deciding the notice of motion for condonation of delay, the Division Bench of this Court found that even though the appellant had engaged the Advocate, the said Advocate was under the impression that he has returned case papers of this proceedings. In his affidavit before the Division Bench earlier, it is stated that case papers of this appeal was never returned back to the present appellant and therefore, he was still appearing in the matter and due to oversight he could not appear in the matter. Considering the said aspect, the Division Bench condoned the delay in filing the appeal and that is how this appeal has been placed before us for admission. 7. The learned counsel for the appellant/original defendant submitted that the appellant has already engaged an Advocate and necessary instructions were given given to him, but because of the circumstances referred to above, the appellant should not be allowed to suffer. He further submitted that the appellant has a arguable case on 4 merits as the appellant is not liable to make the payment in connection with the partnership deed. He submitted that in the original suit, principal claim of the plaintiff is for Rs.4,98,188.54. The learned counsel for the appellant submitted that he is willing to deposit the principal amount before the Court and requested that the appeal may be allowed and may be sent back to the learned Single Judge for hearing de novo. He further submitted that he is willing to abide by the payment of costs if any, awarded by this Court. 8. The learned counsel for the respondent, on the other hand, submitted that the appellant was not at all vigilant and he was not required to be sleep over her right. It is submitted that it was the duty of the appellant to monitor the proceedings regularly. It is further submitted by the learned counsel for the respondent that since the appellant is totally negligent and no written statement was filed for about 20 years at the time when the suit was taken up for hearing, the impugned order is not required to be interfered with by this Court. It is submitted that even otherwise the plaintiff is having good case on merits. 9. We have heard the learned counsel for the parties and have gone through the impugned order passed by the learned Single Judge. It is true that the learned Single Judge has found that since written statement is not filed for nearly 20 years, the decree is required to be 5 passed as per Order 8 Rule 10 of the Code of Civil Procedure. It is further required to be noted that in the instant case, the defendant had already engaged an Advocate, but because of the circumstances, he could not appear and defend the suit. So far as the defendant is concerned, it is no doubt true that she should have been more vigilant in connection with the suit proceedings. However, it cannot be said that the defendant was not interested in defending the suit as the defendant had already engaged an Advocate and gave necessary instructions in the matter. Even at the time of condonation of delay, the Division Bench condoned the delay of about 800 days and have given cogent reasons as to why the delay is required to be condoned. In our view, no party of the proceeding is required to sufer on the ground of mistake of the Advocate of such party. 10. Considering the aforesaid aspect of the matter, in our view, it would be just and proper to direct the appellant to deposit a sum of Rs. 5,00,000/- with the Prothonotary and Senior Master of this Court within a period of four weeks from today and the appellant shall pay a cost of Rs. 30,000/- to the present respondent as a condition precedent for setting aside the impugned order and the matter is remanded back to the learned Single Judge for hearing de novo. 11. The learned counsel for the appellant has also relied upon a judgment of the Supreme Court in the case of Balraj Teneja and Anr., V/s. 6 Sunil Madan and Anr., (1999) 8 SCC 396, wherein it is held that the Court is not required to decree the suit automatically moment the written statement is not filed. The observations of the Supreme Court in this behalf, reads as under : - 9. The scheme of this rule is largely dependent upon the filing or non-filing of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that any fact stated in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be treated as admitted. Under Rule 3 of Order 8, it is provided that the denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and therefore, the denial, if it is not denifite, positive and unambiguous, the allegations of facts made in the plaint shall be treated as admitted under this rule. 10. The provisio appended to this rule is important in the sense that though a fact stated in the plaint may be treated as admitted, the court may, in its discretion, still require such “admitted fact” to be proved otherwise than by such admission. This is an exception to the general rule of evidence that a fact which is admitted need not be proved. 11. Sub-rule (2) provides that if the defendant has not filed his written statement, it would be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint. The rule further proceeds to say that notwithstanding that the facts stated in the plaint are treated as admitted, the court, though it can lawfully pass the judgment, may before passing the judgment require such fact to be proved. The rule is thus, in consonance with the proviso which also requires the fact, even though treated as 7 admitted, to be proved. Thus, the proviso and sub- rule (2) read together indicate that where (i) an allegation of fact made in the plaint is not denied specifically, or (ii) by necessary implication, or (iii) stated to be “not admitted” in the pleading of the defendant, or (iv) the defendant has not filed the written statement, such allegations of facts shall be treated as admitted. The Court in this situation can either proceed to pronounce judgment on such admitted facts or may require the plaintiff, in spite of such admission, or prove such facts. 12. In view of what has been stated above, in our view, even if the appellant may be negligent to some extent in not finding out as to what happened to said proceedings, it would not be just and proper to deny an opportunity to the appellant to defend the suit, as the Advocate was already engaged by the appellant and necessary instructions was given by the appellant to defend the suit and because of genuine difficulty on the part of the Advocate, the appellant could not defend the suit. 13. Considering the aforesaid aspect, this appeal is allowed by setting aside the order of the learned Single Judge and the matter is sent back to the learned Single Judge to decide the same de novo. The appellant is directed to deposit a sum of Rs.5,00,000/- and Rs.30,000/- as indicated in this order, as the respondent is required to suffer for no fault on his part. The learned Single Judge thereafter, may allow the appellant to file written statement within a period of two weeks from the deposit of 8 a sum of Rs.5,00,000/- and Rs.30,000/- with the Prothonotary and Senior Master and may thereafter try to dispose of the suit within a period of six months. The learned counsel for the appellant states that his client will not ask for any adjournment in the suit and will not ask for any extension of time to deposit the money in this behalf and will file written statement as indicated in this order. In case the aforesaid amount is not deposited by the appellant within the stipulated time, the appeal shall stand dismissed. On deposit of the said amount by the appellant, the Prothonotary and Senior Master is directed to invest the amount in a Nationalized Bank initially for a period of six months. In case the suit is not decided within the stipulated period, such deposit may be renewed accordingly. 14. It is pointed out to the Court that some of the properties of the appellant are under the attachment towards the decretal dues. The said attachment to continue during the pendency of the suit. However, it will be open to the appellant to request the learned Single Judge to raise such attachment. This aspect is left at the discretion of the learned Single Judge. The appeal is accordingly allowed to the aforementioned extent. 15. In view of the disposal of the appeal, the notice of motion No.3881 of 2009 does not survive and the same is disposed of accordingly. ( R.C.CHAVAN, J. ) ( P.B.MAJMUDAR, J.)