1992 ALLMR ONLINE 422

N.D. VYAS, J.

RASHTRIYA CHEMICALS AND FERTILIZERS LTD Vs. OTA KANDLA PVT. LTD

Notice of Motion No. 1735 of 1990

28th April, 1992

Petitioner Counsel: Y. V. Divekar Company
Respondent Counsel: D. D. Madon, M/s. Mulla and Mulla, C. B. and C

Civil P.C. (1908),O. 9,O. 8 Civil P.C. (1908),O. 9,O. 8

JUDGMENT

JUDGMENT :- By the present notice of motion, the defendants are praying that the decree passed on 6th July 1990 be set aside. The question which arises for consideration is :

"Whether a decree passed under Order VIII, Rule 10 of Code of Civil Procedure for want of written statement can be set aside by resorting to an application under Order IX, Rule 13 of the Code of Civil Procedure?"

2. The relevant facts giving rise to the present notice of motion are as follows :

The plaintiffs filed the present suit in May 1984 for recovery of Rs. 82,592.64 with interest from the defendants. On 26th June 1985, directions were given in the suit, inter alia, directing the defendants to file their written statement within four weeks. As written statement was not filed within the period stipulated and even thereafter, the plaintiffs took out a notice of motion being Notice of Motion No. 2212 of 1988 praying for judgment for want of written statement in August 1988 and the same was served on the defendants in August 1988 itself. No affidavit-in-reply was filed by defendants. On 6th June 1990, the same reached hearing and on application of the defendants made through their counsel, this Court (Agarwal, J.) was pleased to adjourn the matter till 25th June 1990 to enable the defendants to file their written statement after granting costs of Rs. 500/- to the plaintiffs as condition precedent to filing of written statement. From 25th June 1990 onwards, the said notice of motion appeared on the daily board of Agarwal, J. but reached hearing only on 6th July 1990. Neither costs ordered to be paid as condition precedent were paid by the defendants nor written statement filed on 6th July 1990. Defendants were represented by a counsel on that day. This Court (Agarwal, J.) was pleased to pass the following order :

"On the 6th June 1990, the defendants were granted time to file written statement till 25-6-1990. This was by way of last opportunity. The adjournment was granted on condition of the defendants paying costs quantified at Rs. 500/- as condition precedent. Neither the written statement has been filed nor was the costs paid. In the circumstances, the notice of motion is made absolute in terms of prayer clauses (a) and (b)."

Hence, the present notice of motion. The main prayer thereof is -

"That the ex parte decree and order dated 6th day of July 1990 passed by His Lordship Justice Agarwal in Suit No. 1976 of 1984 be set aside."

The affidavit-in-support is made by one Ketan M. Dave, a clerk working in the office of Messrs. Mulla and Mulla and Craigie, Blunt and Caroe. On behalf of the plaintiffs, an affidavit-in-reply is filed opposing the present notice of motion mainly on the ground that the present notice of motion was not maintainable. The defendants have not filed any rejoinder. Thus, the defendants have not filed any affidavit in rejoinder. Thus, the defendants have not filed any affidavit, whatsoever, in the present notice of motion. As far as the costs to be paid as condition precedent are concerned, the same were sent to the plaintiffs' attorneys after the order dated 6th July 1990 and the same were returned by the plaintiffs.

3. Mr. D. D. Madon, the learned counsel for the defendants, submitted that the notice of motion was maintainable as the decree sought to be set aside is an ex parte decree; that since the defendants' office is at Kandia. Gujarat, though the draft written statement was ready, the same could not be finalised and accordingly could not be tendered when the matter came up for hearing on 6th July 1990 and that the clerk of the attorneys, being unaware of the order as to costs, did not inform his masters about the same and, thus, the same were not paid. In support of his contention, Mr. Madon relied on N. Jayamman vs. M/s. Glaxo Laboratories India Ltd., reported in AIR 1981 Madras 258.

On the other hand, Mr. Divekar, the learned counsel for the plaintiffs, submitted that the notice of motion is not maintainable inasmuch as that the decree passed is under Order VIII, Rule 10 read with Order VIII, Rule 5 and in the presence of a counsel representing defendants and, therefore, it was not an ex parte decree and cannot be set aside in the present proceedings; that the only remedy available to the defendants is, by way of an appeal and that in any view of the matter the conduct of the defendants was such as to disentitle them to the relief sought. Mr. Divekar relied on the decision of a Single Judge of this Court in Menomal Kushaldas Sindhi vs. Gangadhar Pannalal Rai, reported in 1982 MH.L.J. 188. More about the abovementioned decisions little later.

4. Thus, the questions which are required to be answered are - (i) Whether the present notice of motion is maintainable? and (ii) Whether the defendants have, in any view of the matter, made out a case for setting aside the order and decree dated 6th July 1990?

5. In order to appreciate the rival contentions, and answer the questions posed above, the relevant provisions of the Code of Civil Procedure are reproduced below :

ORDER VIII, RULE 5 :

(1) 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.

(2) 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.

(3) 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.

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.

ORDER VIII, RULE 10 :

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 upon such judgment, a decree shall be drawn up.

ORDER IX, RULE 6 :

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;

(b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

ORDER IX, RULE 13 :

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit :

Provided that where the decree is of such a nature that it cannot be set aside against all or any of the other defendants also :

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

Explanation -Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.

6. Order VIII deals, as heading thereto suggests, with written statement set off and counter-claim. Rule 5(1) provides for the consequences of not specifically denying in the written statement, an allegation of fact. The consequence is that the allegation of fact in the plaint shall be deemed to be admitted. More significant for the present purpose are sub-rules (2), (3) and (4) of Rule 5 introduced by 1976 amendments to the Code of Civil Procedure. Discretion is given to Court to pronounce a judgment on the basis of the facts contained in the plaint, where the defendant has not filed a written statement,- and further, provision is made for drawing up of a decree in accordance with the judgment. The pronouncement of judgment under sub-rules (2) to (4) is on the basis of non-denial of statements of facts contained in the plaint. Now, coming to Order VIII, Rule 10, the same provides for the consequences of not filing a written statement by any party from whom a written statement is required under Rule 1 or Rule 9, i.e., it applies to the original defendant as per Rule 1 as well as to the plaintiff in the event of a set off or counter-claim made by the defendant as per Rule 9. The consequence is, pronouncement of judgment by the Court and drawing up of a decree in accordance therewith. It can be easily observed that neither of the Rules 5 or 10 speak of attendance of the defendant. This would mean that the emphasis is on the filing of the written statement.

7. On the other hand. Order IX deals with "appearance of parties and consequences of non-appearance" as the heading to the said order suggests. In short, the suit is dismissed when summons is not served or when plaintiff is absent when the suit is called out for hearing. As far as the defendant is concerned, under Rule 6 when the plaintiff appears and the defendant does not appear, if it is proved that summons has been duly served, the Court is empowered to order the suit to be heard ex parte. However, Order IX, Rule 13 provides that in a case where a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside "and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing", the decree passed against him will be set aside. The ex parte decree under Order IX, Rule 6 is passed when defendant, despite being duly served, is absent. The same decree is set aside if the Court is satisfied that either the defendant was not duly-served or that he was prevented from remaining present by any sufficient cause. Significantly, Order IX, Rule 6 deals with consequences of non-appearance and is not concerned with whether written statement is filed or not. It is, thus, apparent from the wordings of Order IX, Rule 6 and Order IX, Rule 13 that when defendant is absent although duly served, an ex parte decree can be passed against him and the same can be set aside on an application by defendant when he satisfies the Court that he was not duly served or that he was prevented by a sufficient cause from appearing. The reference in Order IX, Rule 13 to a decree passed ex parte can be only to such a decree passed under Order IX, Rule 6. Looking at it from a different angle, it would appear that when a judgment is pronounced under Carder VIII, Rule 5 or Rule 10, the reasons which prevented the defendant (or the plaintiff under Rule 9) from filing a written statement are the only reasons which are necessarily gone into. Only after considering the reasons mentioned, an order is passed. Now, how can the Court under Order IX, Rule 13 go again through the same reasons? Even the very wordings of Order IX, Rule 13 prevent such exercise. The power to set aside an ex parte decree can be exercised only on two grounds. Firstly, if the defendant is not served and, secondly, when the defendant is prevented by a sufficient cause. These two considerations are the only considerations mentioned in Order IX, Rule 13 and these are gone into for the first time at the hearing of the application under Order IX, Rule 13.

8. In these circumstances, on the plain reading of the above reproduced provisions of law, I have no hesitation in coming to the conclusion that the present notice of motion is not maintainable. The decree sought to be set aside is passed under Order VIII, Rule 10 in the presence of the counsel representing the defendants. A Division Bench of this Court (Beaumont, C. J. and Wassoodew, J.), the case of Vinayak Shreedhar Kulkarni vs. Chintaman Vaman Kulkarni reported in AIR 1938 Bombay 470, while refusing to set aside an order passed for want of written statement in view of the fact that the defendant was represented, inter alia, observed-

"A party is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint; for instance that the plaint discloses no cause of action, or that the claim is time barred.................. But we are satisfied that inasmuch as the defendant was represented at the hearing by his pleader, if he had really had any reason to advance-why the plaintiff's claim should not be decreed, he would have advanced it."

From the above observations it is clear that when the defendant is present or his counsel representing him is present, the decree passed is not strictly speaking an ex parte decree as contemplated by Order IX, Rule 13 because the said provision contemplates absence of the defendant. In the case before me, it is not a decree passed under Order IX, Rule 6, and, therefore, procedure provided under Order IX, Rule 13 is not available to the defendants. I find support for my view in the decision of a learned Single Judge (Palshikar, J.) of this Court (Nagpur Bench) in Menomal Kushaldas Sindhi vs. Gangadhar Pannalal Rai, reported in 1982 Mh.L.J. 188, and relied by Mr. Divekar, the learned counsel for the plaintiffs.

9. In the said matter (1982 Mh.L.J. 188), summons to the defendant having been issued, the defendant appeared on 12th September 1980 and applied for time to file written statement. Time was granted and the case was adjourned to 13th October 1980. On that date again another application for grant of time for filing written statement was made and the same was also granted and the case was adjourned to 11th November 1980.A third application for the same purpose was made on 11th November 1980 and it was also granted and the case was fixed for 26th November 1980. The defendant, without filing written statement, raised a plea under Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971, praying for dismi-ssal of the suit. However, on 13th March 1981, the defendant filed an application to the effect that he did not want to press his application for dismissal of the suit and the case was adjourned to 13th April 1981. On that date again the defendant came up with an application for time to file written statement which application was resisted by the plaintiff praying that the application for grant of time be dismissed and the suit be decreed under Order VIII, Rule 5 of the Code of Civil Procedure. Thus, the Court rejected the defendant's application for grant of time and passed an order on the plaint that the defendant had not filed written statement and the plaintiff was required to prove his case by affidavit and the case was adjourned to 30th April 1981. In the meanwhile, on 20th April 1981 the defendant filed an application under Order IX, Rule 7 of the Code of Civil Procedure for setting aside the earlier alleged ex parte order and the trial Court, coming to the conclusion that the order passed on 13th April 1981 was an ex parte order, allowed the defendant to file written statement and the same was admitted on record. This last order was challenged by the plaintiff by way of a revision and in the revision the learned Single Judge of this Court held that the order passed by the trial Court on 13th April 1981 clearly showed that the Court had proceeded under Order VIII, Rule 5 of the Code of Civil Procedure, the trial Court could not treat its earlier order as ex parte and that such an order for proceeding ex parte against the party to the appeal was contemplated by Order IX, Rule 6 of the Code of Civil Procedure and that order under Order IX, Rule 6 is because of the failure of a party to appear on a particular day. It was further held that not only the defendant was duly served to appear but he appeared whenever the case was called on for hearing and applied for time to file written statement and, in these circumstances, the order which was passed by the trial Court could not be called an ex parte order. It was further held that Court, having proceeded under Order VII, Rule 5, could not have jurisdiction to set at naught the provisions of Order VIII, 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 VIII, Rule 5 will be rendered nugatory.

10. In the present case, as discussed earlier, the decree passed by Agarwal, J. is under Order VIII, Rule 10 and that is for want of written statement. For the same reasons given by the learned Single Judge in the case cited above, to allow the present application which is filed under Order IX, Rule 13 would mean to "set at naught" what has been done by Agarwal, J. Further, neither I have the jurisdiction nor I intend to arrogate to myself by making the present notice of motion absolute inasmuch as that I will have to rejudge the reasons which were given before Agarwal, J. when the last application for adjournment for filing written statement was rejected and the notice of motion was made absolute. In the affidavit in support of the notice of motion before me which is purportedly under Order IX, Rule 13, none of the grounds which are available in order to enable a party to take resort to such provisions of Order IX, Rule 13 are mentioned. In fact, they could not have been mentioned in view of the fact that it is not the defendants' case that they were absent on 6th July 1990. With the result, I am of the opinion that the present notice of motion is not maintainable. I must also mention that.Mr. Madon, the learned counsel' for the defendants, cited the Division Bench decision of the Madras High Court in the case of N. Jayaroman (supra) in support of his contention that even though the decree which he seeks to have set aside was passed under Order VIII, Rule 10, the application is permitted under Order IX, Rule 13 and that Order IX, Rule 13 when it appears of an ex parte decree would also include a decree passed for want of written statement. With respect to the Division Bench of the Madras High Court, I cannot agree with the said view. It is implicit in the Division Bench decision of this Court in the case of Vinayak Shreedhar Kulkarni (supra) that the decree passed for want of written statement cannot be equated with ex parte decree as contemplated by Order IX, Rule 13.

11. Although I have come to the conclusion that the present notice of motion is not maintainable, even assuming for the sake of argument that it is maintainable, the facts disclose gross negligence on the part of the defendants. The defendants were served as far back as in 1984 and directions for filing written statement were given on 26th June 1985. Despite such a long time available to the defendants and despite the fact that as required in law a notice of motion for want of written statement was also taken out for judgment for want of written statement, on the day the decree impugned herein was passed, that is, 6th July 1990, the defendants had not filed any written statement. Neither there was any affidavit-in-reply filed by the defendants in the earlier notice of motion taken out by the plaintiffs for want of written statement, viz., Notice of Motion No. 2212 of 1988, nor in the present one. No explanation, whatsoever, is given as to why written statement remained to be filed for so many years. Even in the present notice of motion the affidavit-in-support is not made by the defendants but by a clerk of their attorneys. Even that affidavit does not mention as to why written statement remained to be filed for so many years. In these circumstances, on record there is no explanation forthcoming, leave aside any sufficient cause being made out by the defendants, for enabling this Court to "set at naught" what was done by Agarwal, J. of this Court.

12. In these circumstances, the notice of motion taken out by the defendants requires to be and is hereby dismissed with costs.

Notice of motion dismissed.