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2015 Supreme(Bom) 649
HIGH COURT OF JUDICATURE AT BOMBAY
ROSHAN DALVI, J.
Harikishan Vedprakash Agarwal & Another – Plaintiffs
Versus
Burjor Joshi & Others – Defendant
Notice of Motion Nos. 1002 of 2010, 2658 of 2012 In Suit No. 92 of 1982
Decided On : 10-04-2015
For the Plaintiffs:Amreen Mansuri, i/b. D.R. Jhuriya, Advocates.
For the Defendants:D7, Homi J. Chibber, Advocate.
The central legal point established in the judgment is the importance of natural justice and the defendant's right to present their case, including the right to cross-examine the plaintiff's witness.
Headnote:
Exparte Decree - Civil Procedure Code - Order 9 Rule 6(a), Order 8 Rule 5(2), Order 8 Rule 10 - The court discussed the provisions of CPC related to exparte decree, judgment based on plaintiff's evidence, and defendant's right to cross-examine. The court emphasized the importance of natural justice and the right of the defendant to present their case.
Fact of the Case:
The plaintiffs sought an exparte decree and refused the defendant the opportunity to cross-examine the plaintiff's witness. The defendants had appeared but not filed any written statement.
Finding of the Court:
The court found that the defendants had the right to cross-examine the plaintiff's witness and pronounced that an exparte decree is never passed when the defendant has appeared.
Issues: The main issue was whether the plaintiffs were entitled to an exparte decree and whether the defendants had the right to cross-examine the plaintiff's witness.
Ratio Decidendi: The court emphasized the importance of natural justice and the defendant's right to present their case, including the right to cross-examine the plaintiff's witness.
Final Decision: The court decided that the defendants had the right to cross-examine the plaintiff's witness and ordered the continuation of the cross-examination.
1. Counsel on behalf of the plaintiffs, upon instructions, applies for time four weeks time on the ground that the advocate for the plaintiff is bed ridden. The suit is of 1982. It would not be proper to adjourn this Notice of Motion for such length of time when the plaintiffs' own evidence is pending. It would be counterproductive to the rights of the plaintiffs themselves. The plaintiffs are informed that the Court may take up this matter on Monday, 13th April, 2015 so that counsel on behalf of the plaintiffs who appears today may address the court. However, the plaintiffs do not desire to have the matter argued on 13th April, 2015. Hence the Notice of Motion is required to be heard.
2. The plaintiffs have taken out the above Notices of Motion, in the suit which has been filed in 1982, for passing exparte decree and refusing opportunity to the defendant to cross examine the plaintiff's witness. The defendants having been served the writ of summons, have appeared but not filed any written statement. Defendant No.4 has expired. His heirs have been brought on record as defendants Nos.4(a) to 4(c). The other defendants have not filed any written statement. They claim that defendant No.4 filed written statement on behalf of all other defendants. The plaintiffs refute this contention. The defendants would be entitled to adopt the written statement of any other defendant instead of filing a similar written statement themselves. However, such application is not shown to have been made yet. Hence for want of their written statement the defendants, other than defendant No.8, would not be able to make out any case by themselves. Under such circumstances they would not be entitled to file their affidavit of evidence. However, since the defendants have appeared, the defendants have every right to cross examine the plaintiff's witness to show to the Court the truth or otherwise of the plaintiff's claim. That right of the defendants cannot be taken away by non-filing of their WS. The Court would have to see the case of the plaintiffs proved by the plaintiffs or unproved by the plaintiffs or disproved by the defendants for which the plaintiffs evidence would be required to be tested by their cross examination.
3. The plaintiffs have applied for exparte decree against defendant for want of WS. That would be passed upon seeing plaintiff's evidence including the plaintiff's cross examination, but without any further evidence of the defendant and without seeing any independent case of the defendants.
4. The plaintiffs have tendered a compilation of an earlier Notice of Motion of 2009 in this suit and orders passed in this suit as also in Contempt Petition as also some judgments. Hence the compilation of the plaintiff will have to be considered along side the law relating to recording of evidence.
5. To consider to grant the relief of exparte decree to the plaintiff or the judgment in favour of the plaintiff the provisions of CPC would have to be seen under Order 9 Rule 6(a) if the summons is duly served and the defendant fails to appear the Court may make an order that the suit may be heard ex-parte. This would be when the defendant never appears in Court upon the service of the writ of summons at all and never files his written statement. The court has no means of knowing what is the defence of the defendant. The Court would place the suit on board for exparte decree and pass the exparte decree upon uncontroverted averments in the plaint.
6. Under Order 8 Rule 5 (2) of the CPC, if the defendant has not filed a pleading (which is the written statement) the Court can pronounce judgment upon the facts contained in the plaint but, the Court may require such facts to be proved. This would be the case when the defendant appears upon the service of the writ summons but does not file any written statement. The Court can pronounce the judgment but the judgment may be pronounced upon the facts stated by the plaintiff being proved. To prove such f
