* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 220 OF 2008 W I T H CIVIL APPLICATION NO. 266 OF 2008 IN APPEAL FROM ORDER NO. 220 OF 2008 Manoj Singh ...... Appellant V/s. Hemant K. Rajal .... Respondent ========= Mr.V.Y.Sanglikar a/w. Shri.K.N.Kandekar, adv.for appellant. Mr.Vipul Shukla, adv.for respondent. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 13TH OCTOBER, 2008. P.C. : 1. This appeal is directed against the order passed by the Bombay City Civil court dismissing Notice of Motion taken out by the appellant for setting aside judgement and decree passed in a Summary Suit. The respondent is the original plaintiff. The two questions that were required to be considered while * 2 * deciding the Notice of Motion, were whether the decree dated 3rd November, 2007 passed in Summary Suit No. 2612 of 2006 is an ex- parte decree, and whether the Notice of Motion taken out by the appellant under Order 9 Rule 13 of the the Code of Civil Procedure to set aside the decree, was maintainable. Both the questions have been answered by the City Civil Court in the negative. 2. The facts alleged by the respondent in the Summary Suit filed by him are that he had sold, supplied and delivered cattle feed to the appellant on 5th October, 2002 and 15th October, 2002 by Invoice No. 152A and 155 respectively for the total amount of Rs.67,591/-. The appellant had agreed to pay interest at the rate of 24% p.a., if the payment under the invoice was not made within a period of 45 days from the date of invoice. On 11th January, 2005 the appellant made payment of Rs.33,938/- by cheque leaving a balance due of Rs.40,254/-. After making several demands, the respondent sent Advocates' notice dated 22nd December, 2005 calling upon the appellant to make the balance payment. When that notice was also ignored, he filed Summary Suit for recovery of the amount . 3. After the appellant entered his appearance in the * 3 * Summary Suit, the respondent took out Summons for judgement. By the order dated 5th September, 2007 passed on the Summons for Judgement, the appellant was granted unconditional leave to defend the suit and directed to file his written statement within a period of 30 days from the date of the order. On the next date i.e. 4th October, 2007, the learned Judge presiding over the court was on leave and the board came to be discharged to 22nd October, 2007. On the adjourned date, neither the appellant nor his advocate attended the court. Therefore, the court ordered that the suit be proceeded with without written statement and adjourned the matter for hearing to 3rd November, 2007. On that date, the respondent filed his claim affidavit and the suit was decreed. Soon, thereafter i.e. on 15th November, 2007 the appellant took out Notice of Motion for setting aside the judgement and decree and for permission to file written statement. 4. In the affidavit-in-support of the Notice of Motion, the appellant contended that on 22nd October, 2007 his advocate was busy with some family function and hence could not attend the court. As far as the appellant is concerned, he had to return from the way to the court on receiving a call on his cell-phone about the illness of his mother. The mother underwent operation on 25th October, 2007. On 3rd November, 2007 the * 4 * appellant reached the court at about 12.30 p.m. and got the written statement affirmed. However, by the time he reached the court-room the decree had already been passed. 5. The respondent opposed the Notice of Motion, contending that the decree passed in the suit was not an ex-parte decree and Notice of Motion filed under Order 9 Rule 13 of the Code of Civil Procedure was not maintainable. The decree having been passed under Order 8 Rule 5 and 10 of the Code of Civil Procedure, according to the respondent, the only remedy available to the appellant was of filing an appeal against the judgement and decree. The respondent has not made any comments on the factual averments made in the affidavit-in- support of the Notice of Motion. It was contended before the learned judge, that the decree passed in the suit was an ex- parte decree and therefore an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the same was not maintainable. It was submitted in the alternative that, the Notice of Motion may be treated as an application under Order 37 Rule 4 of the Code of Civil Procedure. The learned judge rejected both the contentions and dismissed the Notice of Motion. 6. The appellant contends that the learned judge * 5 * misdirected himself on the facts of the case and the law applicable. He erred in holding that on grant of leave to defend the suit, the same stood transferred to the list of long causes. It is further contended that the learned judge overlooked the provisions of Order 37 Rule 4 of the Code of Civil Procedure. According to the appellant, the learned trial judge ought to have held that the decree dated 3rd November, 2007 was an ex-parte decree which ought to have been set aside in view of the genuine difficulties faced by the appellant in attending the court on 22nd October, 2008. During the course of the hearing however, Mr.Sanglikar, the learned counsel of the appellant has fairly conceded that on grant of leave to defend, the suit would stand transferred to the list of long causes. He also conceded that the Notice of Motion taken out by the appellant cannot fall within the ambit of Order 37 Rule 4 of the Code of Civil Procedure. In the circumstances, the only aspects this court is required to look into are the nature of the decree and maintainability of the Notice of Motion taken out by the appellant. For the reasons stated hereinafter, both the aspects have to be decided against the appellant. 7. Mr.Sanglikar, relying upon a decision of our High Court in the case of Principal Collector of Customs & anr. V/s. * 6 * Capital Colour Lab Pvt.Ltd reported in 2008(1) Bom.C.R. page 494, s ubmits that the impugned judgment cannot be said to be a judgment within the meaning of the said expression under Order 8 Rule 5 or Rule 10 read with section 2(9) of the Code of Civil Procedure. He submits that there is a vast difference between a decree passed under Order 9 Rule 6 of the Code of Civil Procedure and that under Order 8 Rule 10 CPC. He has further submitted, that for the judgment to be under Order 8 Rule 10 the Code of Civil Procedure, it was necessary for the learned judge to call upon the respondent to lead evidence in support of the claim in his evidence. Since, there is no evidence recorded in the matter, the decree cannot be said to be that under Order 8 Rule 10 of the Code of Civil Procedure. Our Division Bench after discussing the facts of the case before it and provisions of Order 8 Rule 5 and/or Rule 10 expressed its opinion as to what should be, in law, the contents of a judgment under Order 8 Rule 5 and 10 of the Code of Civil Procedure. The observations at para-8 of the judgment reads as follows :- “8. Plain reading of Rule 5 as well as 10 of Order 8 would disclose that in case the defendants 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 * 7 * 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 judge 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 matters in controversy in the suit. Obviously, therefore, the court while proceeding to pronounce a 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.” 8. Applying the above observations to the facts of the instant case, I have no hesitation to hold that the decree passed in the suit is under Order 8 Rule 5 and 10 of the Code of Civil Procedure. On failure of the respondent to file written statement, the court directed that the suit be proceeded with, * 8 * without the written statement and adjourned it for hearing on 3rd November, 2007. On that date, the respondent filed his claim affidavit, i.e., his evidence on the affidavit. The learned judge considered the statements in the claim affidavit and noted that, in that affidavit, the respondent has specifically stated that on 5th October, 2002 and 15th October, 2002 the respondent sold supplied and delivered cattle feed to the appellant. On 10th January 2005, the appellant made payment of Rs.33,938/- leaving a balance amount due of Rs.40,254/- as the principal amount with the claim of interest thereon. With that, the amount due from the appellant was of Rs.48,878/-. The learned judge has opined that on perusal of the claim affidavit and the documents, the claim of the respondent is correct. Thus, it is seen that the judgment and decree dated 3rd November, 2007 satisfies the requirement of Order 8 Rule 5 and 10 of the Code of Civil Procedure. A judgment and decree under Order 8 Rule 5 and 10 of the Code of Civil Procedure is an appealable decree. Such decree cannot be set aside by resorting to Order 9 Rule 13 of the Code of Civil Procedure. The learned judge has properly appreciated this legal aspect of the matter to hold that the Notice of Motion taken out by the appellant is not maintainable and dismissed the same. There is no reason to interfere with that order. Hence, the Appeal from order is * 9 * dismissed in limine. 9. With the dismissal of the Appeal from order, the Civil Application does not survive. The same is accordingly disposed off. [SMT.R.P.SONDURBALDOTA,J]