The High Court held that the Single Judge could not dispose of a suit under Order VIII Rule 10 CPC without recording a judgment. The order was set aside and the suit remanded for proper adjudication, with no merit being decided.
Impugned order set aside; matter remanded to the learned Single Judge to deal with the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 761 OF 1999
IN
SUIT NO. 3423 OF 1991
Pra |
vinkumar Khimji ) |
|---|---|
resTejMat |
iding at 2nd Floor, Bhoj Mahal, )ookaya Park, Dr.B. Ambedkar Road, )unga, Bombay-400 019. ) .. Appellant |
1. |
V/sMrs. Hansa Kantilal alias Kalpana )Kantilal, of Bombay Indian Inhabitant)residing at Block F. Room No.25 & 26)Bhoj Mahal, Dr. B. Ambedkar Road, )Matunga, Bombay-400 019. ) |
2. |
Mrs. Kishori Pramodkumar )of Bombay Indian Inhabitant )residing at Block F. Room No.25 & 26)Bhoj Mahal, Dr. B. Ambedkar Road, )Matunga, Bombay-400 019. ) |
3. |
Messrs Ajanta Warehousing Company )a registered partnership of which )Plaintiffs Nos.1 & 2 are the only )partners having its Registered )Office at 545, Tejookaya Park, )Dr.B.A. Road, Matunga, )Bombay-400 019. ) |
4. |
Kantilal Khimji )of Bombay Indian Inhabitant )residing at 2nd Floor, )Bhoj Mahal, Dr. B. Ambedkar Road, )Matunga, Bombay-400 019. ) |
5. |
Pramod Khimji )of Bombay Indian Inhabitant )residing at 2nd Floor, )Bhoj Mahal, Dr. B. Ambedkar Road, )Matunga, Bombay-400 019. ) |
6. |
Mrs. Daulat Kumari Ramniklal Meckoni)of Bombay Indian Inhabitant, )residing at 3rd Floor, Meckoni House) |
Bhandarkar Road, Matunga, )Bombay-400 019. ) |
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7. Mrs. Urmila Shantilal Meckoni )of Bombay Indian Inhabitant, )residing at 4th Floor, Meckoni House)Bhandarkar Road, Matunga, )Bombay-400 019. ) |
|---|
8. Mrs. Chandan Pravin Shah )of U.S.A., Indian Inhabitant, )through Defendant No.2 as her duly )Constituted Attorney )residing at 2nd Floor, ) |
Bhoj Mahal, Dr. B. Ambedkar Road, )Matunga, Bombay-400 019. ) |
9(a) Pushpa Dhiraj Shah (wife) )(b) Mayur Dhiraj Shah (son) )(c) Amar Dhiraj Shah (son) )(d) Paras Dhiraj Shah (son) ) |
All of Bombay Indian Inhabitant, )residing at 2nd Floor, )Bhoj Terrace, Tejookaya Park, )Dr. B. Ambedkar Road, )Matunga, Bombay-400 019. ) |
10. The Court Receiver, High Court, )Bombay as Receiver appointed in )Testamentary & Intestate Petition )No.651 of 1989 and having his )office at Bank of India Building, ) |
M.G. Road, Bombay-400 023. ) .. Respondents |
Ms.R.C. Nichani for the Appellant.
Mr.Shailesh Shah i/b L.C. Tolat & Co. for Respondents
No.1 to 3.
CORAM : R.M.S. KHANDEPARKAR &
D.G. KARNIK, JJ.
DATE : 20TH APRIL 2007
ORAL JUDGMENT: (Per R.M.S. Khandeparkar, J.)
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1. Heard. This appeal arises from order dated 17th
March 1997 passed in Suit No.3423 of 1991. By the said
impugned order, the suit is purportedly disposed of in
exercise of powers under Order VIII Rule 10 of Code of
Civil Procedure. The impugned order reads thus:
" Mr.Birendra Saraf i/b M/s L.C. Tolat & Co.,
for the Plaintiffs. Defendants absent though
served, Advocate Mr.S.P. Jog, for Defendants
Nos.2 to 7(d) absent. Affidavit of service
dated 4th February, 1992 along with original
Writ of Summons is already in the proceedings.
Today, Mr.Saraf, appearing for the Plaintiffs
tenders original documents as per list, which
are taken on record and are marked Exhibit "A"
collectively.
. Heard Mr.Saraf for the Plaintiffs. Perused
the proceedings and original documents, and
accordingly, following order is passed:
. Decree in terms of prayer clauses (a), (b),
(d), (e), (g) and (i).
. As far as prayer (b) is concerned, Plaintiffs
to deposit with the office of the Prothonotary
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and Senior Master, High Court, Bombay an amount
of Rs.48,338/- within a week’s time.
. Mr.Saraf for the Plaintiffs prays that he may
be permitted to withdraw the original documents.
Permission granted, on the Plaintiffs’ Advocate
giving an undertaking that the original
documents will be produced as and when required
and on his furnishing the xerox copies of the
original documents, duly certified as true
copies.
. Prothonotary to act on the copy of the
minutes of this order, certified and
authenticated by the Court Receiver."
2. Plain reading of the above order would disclose
that the suit was sought to be disposed of in exercise
of powers under Order VIII Rule 10 of the Code of Civil
Procedure. However, the learned Single Judge has not
passed any "judgment" within the meaning of the said
expression under Order VIII Rule 10 read with Section
2(9) of the Civil Procedure Code. The law on this point
is well settled in view of the decisions in the matter
of:
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(i) Balraj Taneja & Anr. v. Sunil Madan & Anr.
reported in (1999) 8 SCC 396,
(ii) All India Central Bank Employees Congress &
Ors. v. Central Bank of India - delivered on
17th January 2007 in Appeal No.901 of 2006,
(iii) Municipal Corporation of Greater Mumbai & Ors.
v. Azharali Anwarali Sambhalwala - delivered
on 30th March 2007 in Appeal No.152 of 2007
Therefore, in view of the reasons recorded in two of the
above judgments delivered by this Court, the impugned
order cannot be sustained. Whenthe Court proceeds to
exercise powers under Order VIII Rule 10 of the Code of
Civil Procedure, it is necessary for the Court to
deliver a judgment and the judgment would imply reasons
to be recorded by the Court for granting the reliefs
asked for. Undoubtedly, such exercise can be done
solely on the basis of the facts stated in the plaint.
However, consideration of the facts stated in the plaint
would include application of mind to the aspect as to
whether the Plaintiff is entitled for the relief asked
for on the basis of the facts disclosed in the plaint.
The Court is also required to consider the provisions of
law applicable to the facts disclosed in the plaint.
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Having no such exercise done by the learned Single Judge
while disposing of Suit No.3423 of 1991 even though the
matter was sought to be disposed of in exercise of Order
VIII Rule 10 of the Code of Civil Procedure, the
impugned order cannot be sustained and is liable to be
set aside and the matter is required to be remanded to
the learned Single Judge to deal with the suit in
accordance with the law.
3. It is made clear that we have not expressed any
opinion on any of the issues on merits sought to be
raised in the matter and all contentions of the parties
are kept open.
4. In the result, the appeal succeeds on the above
limited ground and the impugned order is set aside and
the matter is remanded to the learned Single Judge to
deal with the suit in accordance with the law. No order
as to costs.
(R.M.S. KHANDEPARKAR, J.)
(D.G. KARNIK, J.)
2 issues framed by the court
Whether an order purportedly passed under Order VIII Rule 10 of the Code of Civil Procedure without a recorded judgment satisfies the requirements of Section 2(9) of the Civil Procedure Code.
Whether the High Court can sustain an order disposing of a suit under Order VIII Rule 10 without applying its mind to the provisions of law applicable to the facts in the plaint.
Colour shows how this judgement treated each authority
Balraj Taneja & Anr. v. Sunil Madan & Anr.Explained¶24
Balraj Taneja & Anr. v. Sunil Madan & Anr. (1999) 8 SCC 396 · Who else cites this
All India Central Bank Employees Congress & Ors. v. Central Bank of IndiaApplied¶24
All India Central Bank Employees Congress & Ors. v. Central Bank of India - delivered on 17th January 2007 in Appeal No.901 of 2006
Municipal Corporation of Greater Mumbai & Ors. v. Azharali Anwarali SambhalwalaApplied¶24
Municipal Corporation of Greater Mumbai & Ors. v. Azharali Anwarali Sambhalwala - delivered on 30th March 2007 in Appeal No.152 of 2007
2 provisions across 1 enactments
Pravinkumar Khimji
Mrs. Hansa Kantilal alias Kalpana Kantilal
Mrs. Kishori Pramodkumar
Messrs Ajanta Warehousing Company
Kantilal Khimji
Pramod Khimji
R.M.S. Khandeparkar
D.G. Karnik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court