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2012 DIGILAW 1555 (BOM)

Kailash Nath & Associates v. Girdhar Gopal Sureka

2012-08-16

D.Y.CHANDRACHUD, R.D.DHANUKA

body2012
Judgment : (R.D. Dhanuka, J.) The Appellants challenge the order of the learned Single Judge dated 18 June 2010 passing a decree against the Appellants under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908. The suit is decreed in terms of prayer clauses (a), (a)(i), (a)(ii), (b), (c) and (h) for want of written statement. 2. The present Appellants are original defendants in the suit. The respondent is the original plaintiff in the suit. The parties are described in this judgment as described in the plaint. 3. In the suit, the Plaintiff applied for specific performance of the Agreement dated 10 December 1984 (hereinafter referred to as “Suit Agreement”) and for a declaration that the purported agreement dated 10 January 1994 entered between the First Defendant and the Second Defendant was sham, bogus and not binding upon the Plaintiff and for declaration that the suit agreement was equally binding on the Second Defendant and for specific performance thereof. In the alternative, the Plaintiff also applied for damages in the sum of Rs.14,56,502/-. By an agreement entered into between the First Defendant and the Plaintiff, the First Defendant agreed to allot on ownership basis premises to the Plaintiff, Office No. 12, situated on the first floor of the building known as “Vindhya Commercial”, Plot No. 1, Sector II, CBD, Belapur (hereinafter referred to as “Suit Premises”) for the consideration of Rs.2,06,850/-payable in installments. According to the Plaintiff, the entire consideration amount was paid to the First Defendant save and except, the amount of last installment of Rs.20,685/-which was payable on or before the delivery of possession of the suit premises. According to the Plaintiff, the letter dated 23 August 1993 from the First Defendant, purporting to cancel the booking of the Plaintiff, was not served upon him. The Plaintiff impleaded the Second Defendant as party in the suit when the First Defendant informed the Plaintiff about the rights created by him in favour of the Second Defendant by Agreement dated 10 January 1994. 4. It is common ground that neither of the Defendants had filed a written statement in the said suit filed by the Plaintiff. 5. According to the Defendants, the written statement was ready on the first date fixed for hearing of the suit. The Defendants filed Notice of Motion on 10 March 2010 seeking condonation of delay of 5769 days. 4. It is common ground that neither of the Defendants had filed a written statement in the said suit filed by the Plaintiff. 5. According to the Defendants, the written statement was ready on the first date fixed for hearing of the suit. The Defendants filed Notice of Motion on 10 March 2010 seeking condonation of delay of 5769 days. By an order dated 30 March 2010 the learned Single Judge rejected the said Notice of Motion. The Defendants preferred an appeal challenging the said order dated 30 March 2010. The said appeal is admitted. 6. The suit appeared on the board of the learned Single Judge on 18 June 2010 for an exparte decree. The learned Single Judge proceeded to pass an exparte decree under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908 in terms of prayer clauses (a), (a) (i), (a) (ii), (b), (c) and (h) and directed the Court Receiver to hand over possession of the suit premises to the Plaintiff forthwith. The learned Single Judge rejected the application of the Defendants for an adjournment in view of the pendency of the appeal filed by the Defendants. 7. The learned counsel appearing for the Defendants submits as under: (i) Unless averments made in the plaint were established, an exparte decree under Order 8 Rule 5(2) or under Rule 10 of the Code of Civil Procedure could not have been passed by the learned Single Judge. The order passed by the learned Single Judge does not disclose the defence or does not refer to any documents sought to be produced by the Plaintiff. The impugned order does not express any adjudication and can not be termed as a Judgment as defined in section 2(9) of the Code of Civil Procedure. (ii) The appeal filed by the Defendants challenging the dismissal of the Notice of Motion for condonation of delay in filing the written statement has been admitted and thus the application for adjournment of the hearing of the suit was justified. 8. On the other hand the leaned counsel appearing for the Plaintiff submits that a written statement was not filed by the Defendants, though opportunities were given. 8. On the other hand the leaned counsel appearing for the Plaintiff submits that a written statement was not filed by the Defendants, though opportunities were given. As no stay of hearing of suit was granted by the Appeal Court, the learned Single Judge was justified in refusing the application for adjournment of the hearing of the suit and passing exparte decree under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure. 9. A Division Bench of this Court to which one of us (Dr. D.Y. Chandrachud,J.) was a party, in the case of Principal Collector of Customs and the Union of India Vs. Capital Colour Lab Pvt. Ltd. 2008 (1) Bom.C.R. 494 ) has held thus: “6. Order 8 Rule 5(1) of the Code of Civil Procedure provides that every allegation of fact 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 taken to be admitted except as against a person under disability, provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. Sub-rule (2) thereof provides that where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. Sub-rule (3) provides that in exercising its discretion under the proviso to Sub-rule (1) or under Sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. Sub-rule (4) provides that whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. 7. Sub-rule (4) provides that whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. 7. The Rule 10 of Order 8 of the Code of Civil Procedure provides that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. 8. Plain reading of Rule 5 as well as 10 of Order 8 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 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. ….......... …. 10. …................................ ….......... …. 10. …................................ Rule 5 specifically refers to the facts stated in the plaint and does not refer to the documents sought to be produced by the party. In the case in hand, the plaintiffs were allowed to place the documents on record and on perusal of such documents, the suit was decreed. Such an exercise is not permissible either under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure.............. 16. While exercising the powers either under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure, or even under Order 9 thereof against some of the defendants, it is absolutely necessary for the Court to ascertain whether there is an independent cause of action disclosed against such defendants. When the cause of action is stated to be joint and several, the court has to ascertain from the pleadings whether such cause of action in relation to the defendants, against whom the ex parte decree is sought to be issued, can be said to have arisen independently or not. The impugned order nowhere discloses any such exercise having been done by the Learned Single Judge while disposing the suit.” 10. The Supreme Court in the case of Balraj Taneja and another Vs. Sunil Madan and another (1999) 8 Supreme Court Cases 396) has held thus: “27. …............. it is clear that the Court, at no stage, can act blindly or mechanically. While enabling the Court to pronounce judgment in a situation where no Written Statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit. 31. …................... In a suit for specific performance it is mandatorily required by Section 16 of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of the contract. The Court, before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether all the requirements, specially those indicated in Section 16 of the Specific Relief Act, have been complied with or not. The Court, before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether all the requirements, specially those indicated in Section 16 of the Specific Relief Act, have been complied with or not. Readiness and willingness of the plaintiff to perform his part of the contract is a condition precedent to the passing of a decree for specific performance in favour of the plaintiff. 42. "Judgment" as defined in Section 2(9) of the CPC means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20, Rule 4(2) which says that a judgment: "shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.” 11. Perusal of the plaint in the case in hand discloses that, in the suit, the Plaintiff seeks decree for specific performance of the suit agreement and in the alternative prayed for the damages. The facts also disclose that the Plaintiff had not paid the entire consideration to the First Defendant. The First Defendant had already created third party rights in favour of the Second Defendant in respect of the suit premises. The Plaintiff has also claimed damages at the rate of Rs.12,000/-per month from the date of filing of the suit till vacant and peaceful possession of the suit premises is handed over to the Plaintiff. 12. The Appeal arising out of the order passed by the learned Single Judge dismissing the Notice of Motion for Condonation of delay in filing the written statement has been admitted and the same is pending. The impugned order, nowhere discloses the consideration of the facts mentioned in the plaint or the documents. The learned Single Judge has granted relief not only of the specific performance of the suit agreement but has at the same time also granted alternative relief for damages. The impugned order, nowhere discloses the consideration of the facts mentioned in the plaint or the documents. The learned Single Judge has granted relief not only of the specific performance of the suit agreement but has at the same time also granted alternative relief for damages. Though according to the Plaintiff, part of consideration was still payable by him to the First Defendant, the learned Single Judge has passed an exparte decree without making any provision for the same. In our view, whether the case is contested or decided exparte, or whether the written statement is filed or not, the Court has to write a judgment in conformity with the provisions of Code of Civil Procedure, 1908 or at least must set out the reasons based on which the controversy is resolved. We are therefore, of the view that the impugned order passed by the learned Single Judge is totally contrary to Order 8 Rule 5(2) and Rule 10 as also Section 2(9) read with Order 20, Rule 4(2) of the Code of Civil Procedure. In our view, grant of alternative relief for damages in addition to the decree for specific performance of the suit agreement, on the face of it is erroneous. Both the reliefs could not have been granted by the learned Single Judge at the same time. We, therefore, pass the following order: (a) The Appeal is allowed. (b) The impugned order is set aside. (c) The matter is remanded to the leaned Single Judge for disposal of the suit in accordance with the provisions of law. (d) There shall be no order as to costs.