The main legal point established in the judgment is that on the Original Side of the Bombay High Court, an ex parte decree cannot be passed following the provisions of the CPC. It can only be passed on a Motion under Rule 90 of the Bombay High Court (Original Side) Rules.

1. The application is under Order IX Rule 13 of the Code of Civil Procedure, 1908 (“CPC”) to recall an ex parte decree that I passed on 7th March 2014. After I passed the decree, Defendants Nos. 2 to 4 filed this Notice of Motion, on which an order was passed on 8th May 2015 (Mrs. RS Dalvi J) staying further execution; and then on 21st December 2016, the ex parte decree was recalled (KR Shriram J) on the basis that the Writ of Summons was not properly served. The packet were said to be have been returned with the remark “unclaimed”.

2. The order of KR Shriram J was carried in appeal and the Division Bench (RM Sawant & SV Kotwal JJ) on 10th November 2017 observed that the question of delay had not been considered while recalling the order. The Notice of Motion under Order IX Rule 13 was, therefore, restored to file and remanded for hearing afresh.

3. Today I have before me, therefore, a Notice of Motion to recall the ex parte decree that I passed and there is a delay of 150 days, which Mr. Tamboly for the Plaintiff says is wholly unexplained, in filing the Notice of Motion.

4. I believe I must allow this Notice of Motion and I must allow it immediately, condoning the delay in the process, not for reasons of service or on the question of whether the return of a packet with the remark ‘unclaimed’ is a good service or not. For, after the packets were returned unclaimed they were served afresh by the Bailiff by hand delivery on Defendant No. 2.

5. There is a more fundamental reason to recall the decree and this has to do with the Bombay High Court (Original Side) Rules and in particular Rule 90 which reads thus:

“R.90. Judgment for want of written statement.— Application for judgment for want of Written Statement shall be made by Notice of Motion, but no such Notice of Motion shall be issued before the date on which the Writ of Summons is returnable. On the filing of an affidavit of service of the Notice of Motion, the suit shall be set down on the daily board for the purpose of such application.” (Emphasis added)

6. This Rule evidently does not permit the passing of an ex parte decree without a Notice of Motion being filed for a judgment for want of a written statement. The provisions of the Code of Civil Procedure 1908 will not apply.

7. There is a jurisprudential history to this. This is apparent from the decision of a Division Bench of this court (RMS Khandeparkar and PB Majmudar JJ) in Nikita Trading v. Nirlon Synthetics Fibres & Chemicals Ltd & Ors. Order dated 29th April 2008 in Appeal No. 1136 of 2002. There, an ex parte decree was passed in a civil suit on the Original Side. The matter was carried in appeal. By the time the appeal came up for final hearing, the Supreme Court had delivered its decision in Iridium India Telecom Ltd v. Motorola Inc, (2005) 2 SCC 145 saying that the Rules of this Court framed under Clause 37 of the Letters Patent would prevail over the provisions of the CPC where there is a conflict. The Division Bench in Nikita Trading, therefore, set aside the ex parte decree. It is perhaps a delectable irony that both the ex parte decree in Nikita Trading and the Supreme Court decision in Motorola were both rendered by BN Srikrishna J. Therefore, on the Original Side of this court an ex parte decree cannot be passed following the provisions of the CPC. It can only be passed on a Motion under Rule 90.

8. Consequently, so long as that Rule remains and is not either deleted or amended, no ex parte decree on the Original Side is possible except by filing a Notice of Motion for a judgment for want of written statement.

9. The Division Bench in Nikita Trading said:

3. The impugned order is sought to be challenged on various grounds, however, in our considered opinion, it is not necessary to address to all those grounds. Suffice to refer to only one ground which relates to failure on the part of the Court to take into consideration the provisions of law those are applicable in cases where the Defendant fails to fi