ORDER

1. This appeal has been preferred against the judgment and order dated 22.6.2005 of the High Court of Judicature at Bombay, passed in Appeal No.478 of 2005 in Notice of Motion No.503 of 2004 in Suit No.1924 of 1988.

2. Facts and circumstances giving rise to this appeal are :

A. That the appellant had purchased five Tata Diesel Vehicles from the respondent No.1 for a sum of Rs.9,58,913/-which was to be paid in 8 installments through respondent No.2 as per repayment schedule. The appellant alleges that eight Bills of Exchange were drawn by the respondent no.1 upon the respondent no.2 – banker of the appellant and by way of which the entire amount was paid. Respondent no.1 filed Suit No.1924 of 1988 on 2.6.1988 against the appellant as well as the banker for recovery of sum of Rs.5,66,000/-alongwith interest. Summons were served upon the appellant and he entered appearance through advocate to contest the suit. However, subsequently under the impression that the entire amount had already been paid, he did not file the written statement. The High Court decreed the suit vide judgment and decree dated 12.11.2003 under the provisions of Order VIII Rule 10 of the Code of Civil Procedure 1908, (hereinafter referred to as ‘CPC’) without considering any issue involved therein or taking note of the pleadings in the plaint itself.

B. Aggrieved, the appellant took out a Notice of Motion bearing no.503 of 2004 in the said suit for setting aside ex parte decree dated 12.11.2003, however, it stood rejected vide order dated 10.12.2004 holding it to be not maintainable in view of division bench judgment of the Bombay High Court wherein it had been held that any decree passed under Order VIII Rule 10 CPC could not be subjected to the application under Order IX Rule 13 CPC.

C. Aggrieved, the appellant filed the appeal which has been dismissed vide order dated 22.6.2005 concurring with the learned Single Judge.

Hence, this appeal.

3. We have heard Shri Prasenjit Keswani, learned counsel for the appellant and Shri Debmalaya Banerjee, learned counsel for respondent no.1 and perused the record.

4. This Court in Balraj Taneja & Anr. V. Sunil Madan & Anr., AIR 1999 SC 3381 dealt with the issue and held that even in such fact-situation, the court should not act blindly on the averments made in the plaint merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. Where a written statement has not been filed by the defendant, the court should be little cautious in proceeding under Order VIII, Rule 10, CPC. Before passing the judgment against the defendant it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly by 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 failed to file the written statement. However, 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 judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. The power of the court to proceed under Order VIII, Rule 10 CPC is discretionary. The court further held that judgment as defined in Section 2(9) CPC means the statement given by the Judge of the grounds for a decree or order. Therefore, the judgment should be self-contained document from which it should appear as to what were the facts of the case and 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 b