Partly allowed

Mrs. Mini Munashwarnath Kaul v. Veena Kaul

Bombay HC4 Apr 2008FA/781/1982

Case brief

AI extract

What is this about?

Single Judge quashed a default decree passed in 1981 for non-submission to merits. Held that disposing of suit under Order VIII Rule 5 CPC requires application of mind to plaint facts per Section 2(9). Remanded to trial court with costs condition under time limit.

What did the court decide?

Impugned Judgment and Decree dated 27th March 1981 quashed; Suit remanded to trial court; Appellant to file written statement subject to payment of costs of Rs. 7,500.

Mrs. Mini Munashwarnath Kaul Vs Veena Kaul — Property and Title | Bombay HC (2008)

¶1

-1-

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.781 OF 1982

¶3

 Mrs.Mini Muneshwor Nath Kaul

¶4

 @ Mrs.Mini Umashankar Prasad Singh

¶5

...Appellant

¶6

vs.

¶7

Topeshwarnath Kaul
 (since deceased by his L.R.)
 Veena wd/o Topeshwarnath Kaul...Respondent

¶8

Mr.Anwar Landge with Mr.K.V.Kurup for the Appellant
 Ms Rekha Shukla for the Respondent No.1

¶9

CORAM: A.S.OKA,J.
DATE : APRIL 4, 2008.

¶10

ORAL JUDGMENT:

¶11

 1. The submissions of the learned counsel for the Appellant
 were heard on 26th March 2008. On account of paucity of time,
 the Judgment could not dictated immediately. Therefore, the
 Appeal was kept for dictation of the Judgment yesterday i.e on
 3rd April 2008. As the Record and Proceedings of the suit was
 sent back to the Department, the judgment could not be
 dictated and the Appeal was kept today for that purpose. On
 none of the earlier dates, the Respondent had appeared.
 Today, the learned counsel for the Respondent appeared. By
 way of indulgence, I have permitted her to make submissions.

¶12

 2. The challenge in the First Appeal is to the Judgment and
 Decree dated 27th March 1981 passed by the learned Judge of
 the City Civil Court, Bombay in a suit filed by the
 Respondent-Plaintiff. The appellant is the original

¶13

-2-

¶14

defendant.

¶15

3. The Respondent-plaintiff filed a suit for possession of

¶16

 the suit premises bearing room No.35 with rear balcony,
 sanitary block, store room and lobby forming part of the flat
 bearing room no.35-36 situated on the third floor of the
 building namely Ram Niwas at Dr.Ambedkar Road, Bombay 400 012.
 A prayer was also made for damages at the rate of Rs.25/- per
 month and also for mesne profits.

¶17

 4. The case made out in the plaint is that the Respondent was
 the tenant of the flat consisting room nos.35-36 as well as
 another flat consisting room nos.40-41 in the same building.
 Each flat consists of two rooms, bathroom, w.c. lobby and
 store room. It is the case of the Respondent that the tenancy
 in respect of the two flats stood in the name of the elder
 brother of the original plaintiff by the name Muneshwar Nath.
 It is stated that said Muneshwar Nath in the year 1961
 requested the landlord to transfer the tenancy in the name of
 the original plaintiff. However, the transfer of tenancy was
 not effected and the it is alleged that the tenancy of both
 the flats continued in the name of Umashankar in his capacity
 as the eldest member of the entire family. Said Muneshwar
 Nath Kaul died on 14th July 1969 and thereafter the tenancy of
 the two flats was transferred in the name of the original
 plaintiff.

¶18

-3-

¶19

5. The allegation in the plaint is that in the year 1968, the
 Muneshwar Nath had allowed the Appellant-defendant to stay
 with him as a guest in the flat bearing Nos.35-36. It is
 alleged that the member of the family of the original
 plaintiff had free access to the said flat no.35-36 as the
 same was interconnected to the other flat no.40-41. It is
 alleged that the joint family of the original plaintiff was
 paying the rent in respect of both the flats.

¶20

 6. By an Advocate’s letter dated 28th July 1969 the original
 plaintiff and his brothers called upon the Appellant-defendant
 to remove herself from the flat. Though there was no reply
 sent to the said notice, the Appellant-defendant filed a civil
 suit in the City Civil Court against the respondent-plaintiff
 and his brother contending that she was the widow of the said
 Muneshwar Nath and was staying with their alleged son Vikram
 Singh in the suit premisses. The allegation was that the
 Respondent-plaintiff was trying to oust her. It is alleged
 that the Appellant-defendant secretly locked the door of the
 suit flat.

¶21

 7. The case made out in the present suit by the
 Respondent-plaintiff is that even the room 36 was occupied by
 the Respondent. It is stated that after the demise of brother
 Muneshwar Nath, room nos.35-36 were kept closed. It is stated

¶22

-4-

¶23

that though the room no.36 was in possession of the
 respondent-plaintiff, room no.35 with rear balcony, sanitary
 block, lobby and the and store room continued to be occupied
 by the Appellant-defendant. The possession is sought in
 respect of the said room no.35 along with the rear balcony,
 sanitary block, lobby, store room. The allegation in the suit
 is that the Appellant-defendant is a trespasser. The
 contention of the Respondent-plaintiff is that the real name
 of the Appellant-defendant is Mrs.Mini Umashankar and the said
 fact was pointed out by the Respondent-plaintiff in the suit
 filed by the Appellant-defendant. It is stated that the
 Appellant defendant is the wife of One Umashankar P. Singh
 who is having a flat at Colaba, Bombay. It is stated that in
 the suit filed by the Appellant-defendant she obtained exparte
 injunction.

¶24

 8. By the impugned Judgment and Decree, the said suit was
 decreed in terms of prayer clause (a), (c) and (i). Prayer
 (a) is regarding decree for possession, prayer (c) is
 regarding determination of mesne profits and the prayer (i) is
 for costs.

¶25

 9. The submission of the learned Advocate for the Appellant
 is that the impugned decree has been mechanically passed in
 purported exercise of power under sub rule 2 of Rule 5 of
 Order VIII of the Code of Civil Procedure,1908 without

¶26

-5-

¶27

considering the merits of the case made out by the
 Respondent-plaintiff. He invited my attention to the decision
 of the Division Bench of this court in case of Principal
 Collector of Customs and another vs. M/s.Capital Colour Lab
 Pvt.Ltd. [2007 (6) Mh.L.J. page 225] and submitted that the
 impugned decree has been passed without any application of
 mind and the same deserves to be quashed and set aside.

¶28

 10. The learned counsel for the Respondent submitted that the
 Appeal was dismissed in default on two occasions and the same
 has been restored. She stated that before the restoration of
 the Appeal after the last dismissal, the decree has been
 executed. She pointed out several subsequent events which
 have taken place since then. She submitted that it will be
 unjust to set aside the decree passed in the year 1981 in the
 suit of the year 1969 especially when the Appellant has no
 right,title or interest in respect of the suit premises.

¶29

 11. I have carefully considered the submissions. The
 impugned Judgment reads thus :

¶30

"Written statement not filed.

¶31

Rent receipts dated 31st January 1970 taken on record and
marked (exhibit ‘A’). Copy of Advocate notice along with
acknowledgement taken on record Marked (exhibit ‘B’
colly).

¶32

-6-

¶33

.Decree in terms of payer (a), (c) and (i) under Order
VIII, rule 5 (2) of Civil Procedure Code. Future mesne
profits to be recovered on payment of necessary court
fees.

¶34

.The cost payable to the Plaintiff includes the cost of
the Receiver. Receiver to take possession from the
Defendant and hand over it to the Plaintiff. Court
Receiver discharged without passing accounts on payment
of his costs, charges and expenses if any."

¶35

 12. It will be necessary to refer to the decision of the
 Division Bench in case of Principal Collector of Customs and
 another (supra) where the Division Bench has considered the
 law relating to the disposal of the suits by invoking the
 provisions of Rule 5 or Rule 10 of Order VIII of the said
 Code. The Division Bench observed that even if the recourse
 is taken to sub rule 2 of Rule 5 of Order VIII of the said
 Code, the law contemplates that the court is required to
 pronounce the Judgment on the basis of the facts contained in
 the plaint. Division Bench held that the Judgment will have
 to be in consonance with definition of Judgment under section
 2(9) of the said Code. The Division Bench, therefore, held
 that the court while proceeding to pronounce the Judgment has
 to consider the facts stated in the plaint. The court has to

¶36

-7-

¶37

also consider whether those facts given in the plaint reveal
 any right in favour of the plaintiff to seek the relief
 claimed. The court has to also consider whether the law
 applicable to the facts disclosed in the plaint would entitle
 the plaintiff to seek prayers which are asked for. In
 paragraph 8 of the said decision, the Division Bench has held
 thus :

¶38

 "8.Plain reading of Rule 5 as well as 10 of Order VIII 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 Judgment 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 mattes in controversy in the suit. Obviously,
therefore, the Court while proceeding to pronounce a

¶39

-8-

¶40

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.
 In paragraph 11 of the decision, the Division Bench has held
 thus :

¶41

 "11.Disposal of a suit, either under Rule 5 or Rule 10 of
Order 8, has essentially to be based on the facts
disclosed in the plaint. The impugned order discloses
the consideration of law which could entitle the
plaintiff to seek relief in the form of prayer clauses
(a) and (d) on the basis of the facts stated in the
plaint or even on the documents which are stated to have
been pronounced by the plaintiffs. Apparently, the
impugned order has been passed mechanically without
application of mind."

¶42

 13. In the present case, the decision of the Division Bench
 will squarely apply as there is no consideration of the
 averments made in the plaint as well as the documents relied

¶43

-9-

¶44

upon by the original plaintiff. As held by the Division
 Bench, the impugned Judgment cannot be read as a valid
 Judgment. The impugned Judgment is completely contrary to the
 principles laid down by the Division Bench in the aforesaid
 cases.

¶45

 14. Therefore, the result is inevitable. Decree will have to
 set aside and an order of remand will have to be passed. It
 is true that the consequence of passing such an order will be
 very harsh especially when the suit is of the year 1969.
 However, the law laid down by the Division Bench will have to
 be followed and the matter will have to be taken to the
 logical end. As the Appellant now wants to defend the suit,
 suitable conditions will have to be imposed as regards payment
 of costs so that the Respondent-plaintiff can be compensated.
 I propose to quantify the costs in the sum of Rs.7,500/-.
 After remand, the suit will have to be disposed of in a time
 bound schedule.

¶46

 15. The learned counsel for the Respondent-plaintiff tried to
 argue on the basis of certain subsequent events. However,
 those events cannot be considered while deciding this Appeal
 and after the order of remand, it will be open for the
 Respondent-plaintiff to apply for appropriate interim relief
 in the suit.

¶47

-10-

¶48

16. Hence, I pass the following order :

¶49

i) Impugned Judgment and Decree dated 27th March 1981 is quashed and set aside and the S.C.Suit No.7549 of 1969 is restored to the file.

¶50

ii) Parties are directed to appear before the learned Principal Judge of the City Civil Court on 3rd July 2008 at 11.00 a.m.

¶51

iii) The learned Principal Judge will assign the suit to the appropriate court.

¶52

iv) It will be open for the Appellant-defendant to file the written statement on or before 8th July 2008 subject to condition of paying costs of Rs.7,500/- to the Respondent on or before 1st July 2008. Deposit of the amount in the trial court within stipulated time will be treated as a sufficient compliance. It is made clear that if the Appellant fails to comply with the order regarding payment of costs, written statement of the Appellant shall not be accepted. It is also made clear that even if compliance is made regarding order of payment of costs, the trial court will not permit the Appellant to file the written statement after the date fixed by this court.

¶53

-11-

¶54

v) It will be open for the Respondent-plaintiff to apply for appropriate interim relief.

¶55

The trial court will decide the suit as expeditiously as possible and in any event on or before 31st December 2008.

¶56

vii) All contentions of the parties on merits of the suit are expressly kept open.

¶57

 viii) Appeal is partly allowed in above terms.

¶58

ix) The parties and the trial court to act upon an authenticated copy of this Judgement.

¶59

The learned Advocate for the Respondent seeks stay of this order. The operation of this order will remain stayed till 30th June 2008.

¶60

JUDGE

Mrs. Mini Munashwarnath Kaul v. Veena Kaul

Case brief

What is this about?

What did the court decide?

Mrs. Mini Munashwarnath Kaul v. Veena Kaul

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Maharashtra Vs Shri Ragho Janu Chimane and Others

Everest Advertising Pvt. Ltd. Vs Media Entertainment Co.P.Ltd.

M/S Set Telecom Limited Vs the O. L. of Set Telecom Ltd.(Provisional Liquidator)

Prime Properties Pvt. Limited Vs ---------------------------------------

The State of Maharashtra and Anr. Vs Shrimant Govindrao Narayanrao Ghorpade.

Shrimant Govindrao Narayanrao Ghorpade. Vs State of Maharashtra and Anr.