Hems Apparels vs Rashtriya Banijya Bank And Ors.
2008 Latest Caselaw 57 Bom

JUDGMENT

S. Radhakrishnan, J.

1. Heard the learned Counsel for the Appellant. None appears for the Respondents-original plaintiffs-Bank though served. Affidavit of service dated 12th June, 2006 has already been filed. It clearly indicates that proceedings have been duly served on the Respondents-plaintiffs and they have been informed that the Appeal will come up for final hearing on 12th June, 2006 or any day thereafter. Inspite of the same, no-one is appearing on behalf of the original Plaintiffs.

2. By this Appeal, the Appellant is challenging the Judgment and Decree dated 7th March, 2003 passed by the learned Single Judge. The learned Single Judge has by a cryptic order granted a decree as prayed on the ground that no written statement is filed and accordingly under Order VIII, Rule 5 read with Rule 10 of Code of Civil Procedure, a decree has been passed in terms of prayers (a) and (b). From the judgement and decree, we find that even the original documents have not been tendered and no evidence has been led on behalf of the Plaintiffs. Even the basic issues have not been considered in the said judgement and decree.

3. The learned Counsel for the Appellant has brought to our notice the judgment of the Supreme Court in Balraj Taneja and Anr. v. Sunil Madan and Anr. , wherein the learned Supreme Court has considered the very issue and has observed as under:

29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10, CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgement without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in Sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.

43. Learned Counsel for respondent No. 1 contended that the provisions of order 20, Rule 1(2) would apply only to contested cases as it is only in those cases that "the points for determination" as mentioned in this Rule will have to be indicated, and not in a case in which the written statement had not been filed by the defendants and the facts set out in the plaint are deemed to have been admitted. We do not agree. Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8, Rule 10, the Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved.

44. An attempt was made to contend that the definition of judgment as set out in Section 2(9) of the Code would not be applicable to the judgement passed by the Delhi High Court in its original jurisdiction wherein the proceedings are regulated by the provisions of the Delhi High Court Act, 1966. It is contended that the word 'judgment" used in the Delhi High Court Act, 1966 would not take its colour from the definition of "judgment" contained in Section 2(9) of the Code of Civil Procedure. We do not intend to enter into this controversy, fortunately as it is not contended that the Code of Civil Procedure does not apply, but we cannot refrain from expressing that even if it were so, the Delhi High Court is not absolved of its obligation to write a judgment as understood in common parlance. Even if the definition were not contained in Section 2(9) or the contents thereof were not indicated in Order 20, Rule 1(2), CPC, the judgment would still mean the process of reasoning by which a Judge decides a case in favour of one party and against the other. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. This infirmity in the present judgment is glaring and for that reason also the judgment cannot be sustained.

4. In the above Suit, no original documents were tendered, no evidence was led and no specific issues were considered. The learned Counsel for the Appellant also points out that written statement of defendant No. 2 was in fact sworn and declared on 3.4.2003.

5. Having regard to the facts and circumstances of the case, we are inclined to set aside the impugned judgment and decree dated 7th March, 2003, in the light of the aforesaid judgment of the Supreme Court. The Appeal is allowed accordingly. However, there shall be no order as to costs. Office is directed to take the written statement dated 3.4.2003 of defendant No. 2 on record and keep the same in the original proceedings viz. Suit No. 2664/1988.