Badrinarayan S/O Raghunath ... vs Suresh Nathamal Gothawal
2002 Latest Caselaw 692 Bom

JUDGMENT

N.V. Dabholkar, J.

1. Heard learned counsel for the parties. Rule. Rule made returnable forthwith for hearing by mutual consent.

2. Order passed by 4th Additional District Judge, Jalgaon, on 19-3-2001 in Misc. Civil Appeal No. 99/2000 is being challenged by original plaintiff.

3. Regular Civil Suit No. 228/1996 was filed by present revision petitioner against present respondent for possession of rented premises under the provisions

of Bombay Rent Act. The suit was decreed by judgment and order dated 16-3-1998 by Civil Judge (J.D.). Bhusawal. By Civil Miscellaneous Application No. 17/1998, respondent/defendant applied under Order 9, Rule 13 of Code of Civil Procedure for setting aside the judgment and decree passed on 16-3-1998 in the said suit. Second Joint Civil Judge (J.D.) & Judicial Magistrate (F.C.). Bhusawal, by his order dated 18-9-2000 dismissed the application observing that the said judgment and decree was passed under Order 8, Rule 5(2) of Code of Civil Procedure and, therefore, application under Order 9, Rule 13 was not the remedy available to defendant.

This order was challenged by Misc. Civil Appeal No. 99/2000 before District Judge, Jalgaon, by defendant / respondent. The miscellaneous appeal was allowed by 4th Additional District Judge, Jalgaon, by the impugned order. He held that the judgment and decree passed in RCS No. 228/1996 on 16-3-1998 was one under Order 9, Rule 6 r/w Order 17, Rule 2 of Code of Civil Procedure and consequently remedy under Order 9, Rule 13 for setting aside ex parte decree was available. Feeling that the medical certificate regarding illness of wife suffering from typhoid and jaundice from 1-3-1998 was sufficient cause for absence of defendant on 9-3-1998, the learned District Judge has allowed the application under Order 9, Rule 13 of Code of Civil Procedure thereby setting aside the judgment and decree passed on 16-3-1998 by Civil Judge (J.D.) Bhusawal, in RCS No. 228/1996.

4. Advocate Shri Dube has attacked the impugned order with two fold arguments. According to him the judgment and decree, that was sought to be set aside was a decree under Order 8, Rule 5(2) and the learned District Judge was at an error in observing that the same was a decree under Order 17, Rule 2 r/w Order 9, Rule 6 of Code of Civil Procedure. According to Shri Dube, therefore, remedy under Order 9, Rule 13 was not at all available to defendant.

Shri Dube also states that the finding of learned District Judge, that there was sufficient cause for absence of defendant is erroneous. He, therefore, prayed to quash and set aside the order passed by learned District Judge and restore the order passed by Civil Judge (J.D.), Bhusawal on 18-9-2000 thereby confirming the ex parte decree.

Shri Dube has relied upon observations of this High Court in the matter of Dhanwantrai v. Satish, 1998(3) Mh.L.J. 924. This was a judgment delivered by Division Bench in view of conflicting views on the issue whether a decree passed under Order 8, Rule 5 or 10 of Code of Civil Procedure can be set aside by filing an application under Order 9, Rule 13 of Code of Civil Procedure. The Division Bench has ultimately observed that remedy of an application under Order 9, Rule 13 of Code of Civil Procedure is not available in the matters of decrees under Order 8, Rule 5 or 10 of Code of Civil Procedure. The only remedy available is by way of an appeal against the said decree.

5. Advocate Shri Mukul Kulkami has not controverted this position, but his emphasis is upon the nature of the decree passed on 16-3-1998 that was sought to be set aside. According to Shri Kulkarni on the facts of the case that was a decree passed under Order 17, Rule 2 of Code of Civil Procedure and, therefore, all the consequences in Order 9 ought to follow. Impliedly, he urged that it is a decree passed ex pane and, therefore, remedy under Order 9, Rule 13

of Code of Civil Procedure was available to defendant. Shri Kulkarni also urged that when the sufficiency of cause is upheld by the District Judge on the basis of medical certificate regarding illness of wife of defendant from 1-3-1998 and when the judgment is delivered due to absence of defendant on 9-3-1998, this Court in its revisional jurisdiction may not upset that finding of fact.

6. When a decree should be considered as a decree passed under Order 8, Rule 5 or 10 and when it should be termed as a decree under Order 9, Rule 6 amenable to remedy under Order 9, Rule 13, enough material is available in the form of observations of the Supreme Court in the matter of Sangram Singh v. Election Tribunal, Kotah and Anr., , which are borrowed by the Division Bench while deciding the matter of Dhanwantrai (supra). In fact, paragraphs 24 to 36 except paragraphs 34 and 35, are reproduced and borrowed by the Division Bench of this High Court and the contents of paragraphs 29 and 30, of the judgment of the Supreme Court in the matter of Sangram Singh read as follows :

"(29) We turn next to the adjourned hearing. That is dealt with in Order 17, Rule l(i) empowers the Court to adjourn the hearing and whenever it does so it must fix a day "for the further hearing of the suit" except that once the hearing of the evidence has begun it must go on from day to day till all the witnesses in attendance have been examined unless the Court considers for reasons to be recorded in writing that a further adjournment is necessary. Then follows Rule 2 -

"Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit".

Rule 2 of Order 17 is discussed in paragraph 30 of judgment of the Supreme Court reproduced as follows :

"(30) Now Rule 2 only applies when one or both of the parties do not appear on the day fixed for the adjourned hearing. In that event, the Court is thrown back to Order 9 with the additional power to make "such order as it thinks fit". When it goes back to Order 9 it finds that it is again empowered to proceed 'ex parte' on the adjourned hearing in the same way as it did or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed 'ex parte' is a right which accrues from day to day because at each adjourned hearing the Court is thrown back to Order 9, Rule 6."

7. In paragraph 11 of judgment of the Division Bench, the Court has relied upon the observations of the Supreme Court in the matter of Arjun Singh v. Mohindra Kumar, as follows :

"The Court has held that everything which is likely to happen in the trial Court vis-a-vis non-appearance of the Defendant at the time of hearing of the suit has been provided for in Order IX, Rule 7 and Order IX, Rule 13. Order IX, Rule 7 and Order IX, Rule 13 exhaust the whole gamut of situation that may arise during the course of trial. The Court has held that

in a case where the stage of first hearing is passed and hearing is fixed for disposal of the suit and on the date of hearing for disposal of the suit, if Defendant is not present on such date, the effect of proceedings is ex parte. The evidence of the Plaintiff might be taken and the judgment might be pronounced. In that case Order IX, Rule 13 would come in."

The Division Bench has drawn its conclusions regarding the decrees under Order 8, Rule 5 and under Order 9 in paragraphs 12 and 13 of the judgment, which are as follows :

"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, require 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."

In paragraph 13, regarding Order 9, it is observed :

"This means that suit is fixed for hearing and on the date of hearing if neither parties appears then the suit may be dismissed as provided under Order IX, Rule 3. If the Defendant fails to appear on the date of hearing, the Court is required to pass an order that the suit be heard ex parte and to proceed further with the hearing of the suit. This requires recording of evidence and to proceed with the matter. After recording evidence ex parte, the Court can pronounce judgment on the basis of the evidence which is brought by the Plaintiff. In such cases, the suit is not disposed of as provided under Order VIII, Rule 5 or Rule 10 on the basis of the averments made in the plaint."

8. Taking into consideration paragraphs 12 and 13 of the judgment, it is clear that in view of judgment of the Division Bench, a judgment delivered under the rule of 'non traverse' is a judgment delivered under Order 8, Rule 5 or Rule 10. In such matter, the Court decides the suit in favour of plaintiff sheerly on the basis of averments in the plaint, which are not controverted by a written statement of defendant either on the first day or in spite of sufficient opportunity. The affidavit of plaintiff to support the plaint is a mere formality and it is not evidence laid to prove the contentions in the pleadings. However, when the Court does not deliver a judgment immediately on failure on the part of defendant to file written statement of defence and calls upon plaintiff to lead evidence, it is obvious that the Court is not inclined to deliver a judgment in favour of plaintiff under rule of non traverse, but it proceeds to record the evidence of plaintiff and delivers the judgment in favour of plaintiff in the circumstance "non appearance". In one sentence, the judgment under the principle or rule of non traverse is one under Order 8, Rule 5 or 10 and a

judgment in favour of plaintiff due to non appearance of defendant is a judgment ex parte. The first one is not amenable to remedy under Order 9, Rule 13, whereas the latter is so amenable.

9. Advocate Shri Dube has relied upon the judgment of this High Court in the matter of Laxman v. Sushila, 1996(1) Mh.LJ. 67 and more particularly for the facts in the matter of Menomal v. Gangadhar earlier judgment of this High Court reported at 1982 Mh.LJ. 188 reproduced therein. The facts in the earlier reported judgment are relied upon in order to persuade this Court that facts in the present case and in the reported case are identical and hence this Court ought to hold that the judgment in the present matter was a judgment under Order 8, Rule 5. In the matter of Menomal, on three occasions adjournment was granted to the defendant to file written statement. Fourth time, he applied on 14-4-1981. The application was opposed by plaintiff and rejected by the Court, not only that Court further passed specific order on the plaint that since defendant had not filed written statement plaintiff was required to prove his case by affidavits. It was in these circumstances that the judgment was held to be one under Order 8, Rule 5. It is pertinent to note that in the matter relied upon by Advocate Shri Dube, the defendant was very much present in the Court and his prayer for adjournment for filing written statement was rejected.

Roznama of the events that occurred in the Civil Suit No. 228/1996, out of which present revision petition arises, is available at paper book pages 23 and 24, which is part and parcel of Misc. Civil appeal No. 99/2000 and if abstracted, the same is as follows :

Date

Events

1) 12-12-1997

No WS

2)    7-1-1998

All present, CTO 28-1-1998 for no WS hearing.

3)   28-1-1998

All present, CTO, No WS hearing 11-2-1998

4)   11-2-1998

All present, CTO adjourned for no WS hearing 21-2-1998

5)   21-2-1998

Evidence of plaintiff recorded. Defendant and counsel absent. Adjourned for evidence of defendant 5-3-1998.

It further appears that since the Advocates were on token strike on 5-3-1998, the matter was adjourned for arguments on 9-3-1998 and ultimately the judgment was delivered on 16-3-1998 without hearing any arguments since on 9-3-1998, nobody was present.

10. Taking into consideration the facts of the case at hands, had the trial Court delivered the judgment on any of the dates from 12-124997 to 11-2-1998 only on the basis of affidavit of plaintiff, the judgment could have been termed to be judgment under Order 8, Rule 5. However, as is evident from subsequent event, the Judge not only recorded the evidence of plaintiff, but was also inclined to allow defendant to lead evidence, although without written statement. Not only that, ultimately on 9-3-1998, he has recorded that the evidence of defendant is dispensed due to his absence and the matter was ordered to proceed further under

Order 17, Rule 2 of Code of Civil Procedure. Advocate Shri Dube has taken an exception to this last endorsement saying that the Court has taken a total about turn. In fact, the same will have to be described that the Court has come to correct track only on 9-3-1998. If the Judge was inclined to deliver a judgment on the principle of non traverse, there was no necessity to adjourn the matter for hearing and invite the plaintiff to lead evidence. Since the plaintiff was so invited and ultimately the judgment was delivered, when the defendant was absent, it was a judgment, as rightly held by the District Judge; one under Order 9, Rule 6 read with Order 17, Rule 2 of Code of Civil Procedure and, therefore, remedy under Order 9, Rule 13 was available.

11. Shri Dube has relied upon observations in paragraph 9 in the matter of Laxman v. Sushila (supra) wherein the Court has observed that once the Court having proceeded under Order 8, Rule 5, it could not have jurisdiction to set at knot the provision of Order 8, Rule 5 because in so doing, the Court would be free to change its mind and allow the defendant to file written statement and proceed and if such course is permitted, the provisions of Order 8, Rule 5 will be rendered nugatory. In fact, on referring to Order 8, Rule 5 as also Order 8, Rule 10, it can be seen that in both the provisions, Court has inherent powers to make its power under Order 8, Rule 5(2) as also Rule 10, nugatory. This is evident from the existence of clause "but the Court may, in its discretion, require any such fact to be proved", as contained in Rule 5(2) and the phrase "or make such order in relation to the suit as it thinks fit" in Rule 10. Thus, although initially the word used is "shall", Court is not obliged to pronounce a judgment in favour of plaintiff, no sooner it finds that defendant has not filed written statement. It has discretion, either to pronounce judgment in favour of plaintiff or follow such other course as it may deem fit and proper in the facts and circumstances of the case and its discretion. In the present matter, the Court in spite of absence of written statement, had fixed the matter for no written statement hearing, invited the plaintiff to lead evidence and expected the defendant to adduce evidence. In these circumstances, the judgment delivered on 16-3-1998 must be considered to be judgment delivered in absence of defendant on 9-3-1998 and, therefore, a judgment under Order 17, Rule 2 read with Order 9, Rule 6 of Code of Civil Procedure.

12. The trial Court, having accepted medical certificate regarding illness of wife of defendant from 1-3-1998 as sufficient cause for his absence on 9-3-1998 and having had benefit to see the witnesses examined from the box, this Court, in its revisional jurisdiction. Finds it undesirable to interfere with that finding on fact, which cannot be said to be perverse.

13. For all these reasons, the order passed by 4th Additional District Judge, Jalgaon, suffers with no illegality or material irregularity. The revision petition is, therefore, dismissed. Rule discharged.