JUDGMENT - R.M. LODHA, J. :--- Heard Mr. Ingle, the learned Counsel for the applicant.

2. The only contention raised by Mr. Ingle is that the trial Court while rejecting the application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (for short, the C.P.C.) as not maintainable, has relied upon (State Bank of India v. Himalayan Tiles Marble Pvt. Ltd.)1, 1994(2) Bom. C.R. 399 and the judgement of this Court in S.B.I. v. Himalayan Tiles, is based on the judgement of this Court in (Rashtriya Chemicals v. Ota Kandla Ltd.)2, 1992(3) Bom. C.R. 381 Mr. Ingle submits that the judgement in the case of Rashtriya Chemicals Fertilizers v. Ota Kandla, is based on the judgement of this Court in (Manomal v. Gangadhar)3, 1982 Mah.L.J. 188 and the said judgement in Manomals case has been overruled by this Court in (Western Coalfields Limited v. Rajkumar Kanhiyalal Bhiwapurkar others)4, 1986 Mah.L.J. 525. Thus Mr. Ingle submits that the basis of all these judgements in State Bank of India and Rashtriya Chemicals case was Manomals case and Manomals case having been overruled by this Court in WCLs case, revision application may be admitted and referred to larger Bench to decide the correctness of the view expressed in State Bank of India v. Himalayan Tiles, (cited supra) and Rashtriya Chemicals v. M/s. Ota Kandla Limited, (supra).

3. The aforesaid controversy has arisen because in the civil suit filed by the plaintiff non-applicants against the applicant/defendant, the trial Court proceeded under Order 8, Rule 5(2) of C.P.C. and passed the decree on 26-3-91 against the applicant. According to the applicant, the said decree was ex-parte and he made an application under Order 9, Rule 13 C.P.C. for setting aside that decree. By the impugned order, the application under Order 9, Rule 13 C.P.C. has been rejected as not maintainable.

3-A. In (Shriram Surajmal v. Shriram Jhunjhunwalla)5, A.I.R. 1936 Bom. 285, Beaumont, C.J. on construction of the then Order 8, Rule 5 of C.P.C. observed that under Order 8, Rule 5, every allegation of fact in plaint must be taken as admitted unless stated to be not denied or admitted by the defendant and where there is no pleading of the defendant, there can be no denial or non-admission on his part and is bound by all the allegations in the plaint. Thus, the view taken by this Court had been emphatic that the provisions contained in Order 8, Rule 5 C.P.C. have to be construed strictly.

4. Beaumont, C.J. while sitting with Wassoodew, J., in (Vinayak Shreedhar Kulkarni v. Chintaman Vaman Kulkarni)6, A.I.R. 1938 Bom. 470, held as under :---

".....The plaintiff is a minor suing by his next friend to enforce an oral agreement for the payment of money. The defendant seems to have avoided service for about a year, but he was eventually served, and was directed to file a written statement by 12th June, 1935. He did not file a written statement but applied for further time, putting in a doctors certificate saying that he was ill. The learned Judge rejected that application, pointing out that although the defendant might be ill there was no reason why he should not have given instructions to his pleader on which a written statement could have been filed. The learned Judge thereupon made an order, "case is fixed for hearing ex parte". It is not uncommon to make an order of that nature where no written statement is put in, but such an order cannot be justified. The Judge should have directed that the case be fixed for hearing in default of written statement. A party is not bound to put 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. However, the order in this case seems to have been treated as meaning no more than that the suit would be heard in the absence of a written statement, because when the

Click Here to Read the rest of this document