The Bombay High Court recently held that on its original side, an ex parte decree can be passed in a notice of motion filed only under Rule 90 of the Original Side Rules and not under Order VIII of the Code of Civil Procedure.
Justice GS Patel followed the judgments of the Supreme Court as well as two division benches of the high court in the application for recall of an ex parte decree passed by him on March 7, 2014.
Case Background
After the ex parte decree was passed by Justice Patel in a suit filed by plaintiff Madhu Gupta, on March 7, 2014, the defendants filed a notice of motion on which an order staying execution of the earlier order was passed by Justice (retd) Roshan Dalvi. Then, in an order dated December 21, 2016, Justice KR Shriram recalled the ex parte decree on the grounds of non-service of writ of summons.
Justice Shriram’s order was appealed against, and the division bench of Justice RM Sawant and Justice SV Kotwal on November 10 this year observed that the question of delay had not been considered while recalling the order. Thus, the notice of motion was restored to file and came up before the current bench.
Justice Patel noted that there was a delay of 150 days and then went on to observe the following-
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. 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.
The court relied on the judgment of the Supreme Court in Iridium India Telecom Ltd v Motorola Inc and the judgment of division benches of the Bombay High Court in Nikita Trading v Nirlon Synthetics Fibres & Chemicals Ltd & Ors and Tardeo Properties Pvt Ltd v Bank of Baroda in order to substantiate the following:
On the original Side of this court, given the extant Rules, a Court cannot exercise jurisdiction under Order VIII of the Code to pass an ex parte decree. That can only be done on a Notice of Motion filed under Rule 90 of the OS Rules, and not otherwise.
Thus, the ex parte decree was recalled.