Allowed

Yeshwant Waman Patil, Mumbai. v. Vimal Bhaasker Karkera, Mumbai.

Bombay HC1 Sept 2010APP/127/2010

Case brief

AI extract

What is this about?

The High Court of Bombay allowed an appeal against an ex-parte decree passed under Order VIII Rule 10 CPC. The court set aside the judgment and decree for failing to disclose the process of reasoning despite references to documents, relying on Balraj Taneja vs Sunil Madan.

What did the court decide?

Impugned judgment and decree were set aside on the ground of not disclosing the process of reasoning; no order as to costs.

Yeshwant Waman Patil, Mumbai. Vs Vimal Bhaasker Karkera… — Property and Title | Bombay HC (2010)

APP 127.2010

mst

I N THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.127 OF 2010 IN

SUIT NO.601 OF 2005

Yeshwant Waman Patil

Appellant

versus

Vimal Bhaskar Karkera Respondent

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Mr.Virag V. Tulzapurkar, Sr.Counsel i/by M/s.Shelke & Co. for appellant.

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Mr.S.G.Deshmukh with Mr.M.S.Kumtekar and Mr.S.S.Kudalkar for respondent.

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CORAM : MOHIT S. SHAH, C.J. AND DR.D.Y.CHANDRACHUD, J.

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Date : 01^st September, 2010.

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P.C.

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The appeal is admitted and taken-up for final disposal by consent of learned counsel for the parties.

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The appeal is directed against the judgment and decree dated

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25th September 2008 passed by the learned Single Judge in a suit seeking a declaration of title with a further declaration that the defendants are not entitled to interfere with the plaintiff's use,, occupation and possession and an injunction for protection of

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APP 127.2010

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possession. The respondent-plaintiff prayed for an ex-parte decree only against the present appellant-original defendant no.1 and names of original defendant nos.2 and 3 were deleted on the ground that they had expired prior to filing of the suit. The learned Single Judge has also noted that no written statement has been filed by defendant no.1.

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Thereafter the learned Single Judge adverted to the following reasons for passing an ex-parte decree against defendant no.1. :-

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"2. The Plaintiff has produced original documents, including the registration certificate for the garage which is the suit property and the NA order dated 21.78.1990 showing the land on which the garage is situate. Since the Written Statement is not filed, the Plaintiff's averments are not controverted. Hence the Suit is decreed in terms of prayers (a), (b) and (c). The original documents are taken on record and marked Exhibit-A (Collectively)."

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The learned counsel for the appellant-original defendant no.1 submitted that even though no written statement has been filed by the defendant no.1, the learned Single Judge was required to deliver a judgment which should be a self contained document from which it should appear as to what were the facts of the case and

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3 APP 127.2010

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what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. 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 ex-parte, or is a case in which the written statement is not filed and the case is decided under Order VIII, Rule 10 of Code of Civil Procedure, 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. Relying on the aforesaid principles laid down by the Apex Court in Balraj Taneja Vs. Sunil Madan (AIR-1999-SC-3381) as followed by the Division Bench of this Court in Meditronics Corporation of India and others Vs. Salima A. Rais (Dr). (2006[6]-Bom.C.R.-72) the learned counsel for the appellant submitted that since the judgment impugned in present appeal does not disclose the process of reasoning by which the Court came to the ultimate conclusion and decreed the suit, the impugned judgment deserves to be set aside.

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The learned counsel for the respondent-original plaintiff

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supported the judgment and submitted that reference to the crucial documents on record including the registration certificate for the garage which is the suit property and the N.A. order dated 21st August 1990 showing the land on which the garage is situate, is sufficient to indicate the application of mind on the part of learned Single Judge. He further contended that the appellant-original defendant no.1 has no locus to file present appeal.

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Having heard the learned counsel for the parties we are of the view that a mere reference to the documents on record in the judgment and decree is not sufficient to satisfy the principles laid down by the Apex Court in case of Balraj Taneja Vs. Sunil Madan ( supra). The very fact that the plaintiff came to the Court for the reliefs claimed in the suit makes it clear that there was a case requiring trial and, therefore, even if the defendant no.1 had not filed his written statement, as indicated in the judgment of Apex Court in case of Balraj Taneja Vs. Sunil Madan ( supra), the judgment must reflect the process of reasoning by which the Court came to the ultimate conclusion.

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Without going into the merits of the appeal and the appellant's

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locus to file present appeal we have entertained the appeal only because the appellant was the only party defendant against whom reliefs were sought in the suit as the plaintiff deleted the names of defendant nos.2 and 3 who were dead on the date of filing of the suit. The very fact that the plaintiff sought the decree only against defendant no.1 by deleting the names of defendant nos.2 and 3 is sufficient to entitle him to file a suit.

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The judgment impugned in the appeal has not disclosed the process of reasoning. Therefore, we are inclined to set aside the impugned judgment and decree only on that ground without going into the merits sought to be raised in this appeal. We make it clear that setting aside the impugned judgment and decree shall not, by itself, confer any right on the appellant-original defendant no.1 to file written statement. The appeal is accordingly allowed in the aforesaid manner with no order as to costs.

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( CHIEF JUSTICE)

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(DR.D.Y.CHANDRACHUD, J.)

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APP 127.2010

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I N THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO.1509 OF 2010 IN APPEAL NO.127 OF 2010 IN SUIT NO.601 OF 2005

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