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Documents citing Dhanwantrai R. Joshi & Others vs Satish J. Dave & Others on 30 September, 1998

Remedial Resolutions Advisors Pvt. ... vs One Square Investmentltd. (Formerly ... on 6 March, 2020

12. To bolster up the submission that an application under Order IX Rule 13 is not tenable where a decree is passed under Order VIII, Rule 10, the learned Senior Counsel placed a strong reliance upon a Division Bench judgment of this Court in the case Dhanwantrai R. Joshi & Ors. Vs. Satish J. Dave & Ors. 1. In the said case, after adverting to the provisions contained in Order VIII and Order IX of the Code and the previous pronouncements, this Court held that Order VIII Rule 5 or Rule 10 and Order IX operate in different fields. Thus, an application under Order IX Rule 13 is not maintainable when the Court has passed a decree under Order VIII Rule 5 or Rule 10 of the Code. There is no provision in Order VIII for setting aside a decree passed under Rule 5 or Rule 10 thereof for non-filing of written statement. The only remedy in such cases is to file an appeal against 1 1998(3) Mh.L.J. 924 Shraddha Talekar PS ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:35 ::: 16/38 nms-1910-2019-COMS-39-2012 F-7-3.doc the said decree.
Bombay High Court Cites 27 - Cited by 1 - N J Jamadar - Full Document

The Steamship Mutual Underwriting ... vs Thakur Shipping Company Limited & Ors. on 25 September, 2000

9. From the above, is it possible to say that decree passed is a decree under Order VIII Rule 5(2). I need not delve at length with the case law as in my opinion, it is discussed in the judgment of the Division Bench of this Court in Dhanwantrai R. Joshi v. Satish J. Dave. One important aspect however which has to be noted is that in so far as ex parte decrees are concerned, the suit can be decreed ex parte, only on recording evidence. At the highest, the normal procedure of framing issues can be dispensed with, if the Defendants at the first hearing of the suit makes no defence as contemplated under Order XIV Rule 1(6). What is material, therefore, is that evidence must be recorded. Unlike an ex parte decree, in so far as Order VIII Rule 5(2) is concerned, the Court can proceed to pass decree on the basis of facts as pleaded in the plaint. There is, however, discretion in the Court which may call on the Plaintiff to prove any fact. Order VIII Rule 5(2) comes into play on failure of the Defendants to comply with the Order VIII Rule (1). Order VIII Rule 1 as amended by this Court reads as under:
Bombay High Court Cites 14 - Cited by 4 - F I Rebello - Full Document

Lachhiram Chudiwala, H.U.F. Through ... vs The Bank Of Rajasthan Limited, A Banking ... on 29 September, 2006

15. In yet another judgment, in Gaurang V Merchant and Ors v. adhliso & Co Pvt Ltd and Ors. 2004 (2) All MR 737, the learned Single Judge of this Court (D.G.Karnik, J.) had an occasion to deal with the very same provisions and to meet almost similar situation. After considering the judgment of this Court in Dhanwantrais case and Balraj Taneja and Anr v. Sunil Madan and Anr. , the learned Single Judge has taken a view that merely because the defendant has not filed written statement it cannot be said that the decree passed is one under rule 5 or rule 10 of Order 8 and not under Order 9 rule 6 of CPC. That has to be seen on the basis of the facts of each case. In short, it is held that if the facts of the case show that the decree was not passed only on the basis of facts set out in the plaint but after framing an issue and upon recording of evidence, it could be treated as one under Order 9, rule 6 of CPC. I do not find any reason to differ from the view taken by N.V. Dhabholkar, J. and D.G.Karnik, J. the learned Judges in the respective cases referred to above.
Bombay High Court Cites 22 - Cited by 3 - D B Bhosale - Full Document

M/S. Clinirx Research Private Limited vs Bilcare Limited, Thr.Its ... on 14 November, 2017

12. The principles laid down by the Division Bench in Dhanwantrai (supra) have been followed and reiterated in all subsequent judgments relied upon by the learned Sr. Counsel Shri Thorat. Hence it is not necessary to make a separate reference to these judgments. The aforesaid judgments lay down a clear proposition that the decree passed in exercise of discretion under Order 8 Rule 5 is not an ex- parte decree and is not amenable to the remedy under Order 9 Rule 13 of CPC and the only remedy available is to file an appeal against SALGAONKAR 11 of 30 ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 01:08:58 ::: AO (St) 8010-17.doc such decree.
Bombay High Court Cites 18 - Cited by 2 - A Prabhudessai - Full Document

Badrinarayan S/O Raghunath Sharma vs Suresh Nathamal Gothawal on 12 July, 2002

6. When a decree should be considered as a decree passed under Order 8, Rule 5 or 10 and when it should be termed as a decree under Order 9, Rule 6 amenable to remedy under Order 9, Rule 13, enough material is available in the form of observations of the Supreme Court in the matter of Sangram Singh v. Election Tribunal, Kotah and Anr., , which are borrowed by the Division Bench while deciding the matter of Dhanwantrai (supra). In fact, paragraphs 24 to 36 except paragraphs 34 and 35, are reproduced and borrowed by the Division Bench of this High Court and the contents of paragraphs 29 and 30, of the judgment of the Supreme Court in the matter of Sangram Singh read as follows :
Bombay High Court Cites 5 - Cited by 1 - N V Dabholkar - Full Document

Tejbai Tejshi And Ors. vs Gangubai Dinanath Ulvekar on 26 September, 2001

Reliance is also placed on another decision of the Division Bench of this Court reported in 7995 (3) Mh.LJ. 924, Dhanwantrai R. Joshi v. Satish J. Dave (paras 6 and 8). In other words it is argued that this Court may infer that the ex-parte decree was not under Order 8, Rule 5 of Code of Civil Procedure but under some other provision against which application for setting aside such decree was maintainable under Order 9, Rule 13 of the Code of Civil Procedure.
Bombay High Court Cites 4 - Cited by 2 - A M Khanwilkar - Full Document

Gaurang V. Merchant And Ors. vs Madhliso And Co. Pvt. Ltd. And Ors. on 6 February, 2004

In Dhanvantrai R. Joshi v. Satish J. Dave and Ors. a Division Bench of this Court has held that there is no provision Of setting aside of a decree passed under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure for non filing of a written statement. Where a decree has been passed under Rule 5 or Rule 10 of Order 8 of the Code of the Civil Procedure, on account of non filing of a written statement, the only remedy open to the defendant against whom the decree is passed is to file an appeal and an application under Order 9, Rule 13 of the Code of Civil Procedure is not maintainable. Therefore, it would be necessary to examine whether in the present case, the decree has been passed under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure or the Court passed the decree by proceeding exparte under Order 9, Rule 6 of the Code of Civil Procedure. It is true that in the present case, the defendant Nos. 4 and 5 had not filed the written statement. But merely because the defendants had not filed the written statement, it cannot be said that the decree passed on 18th December, 2001 was a decree passed under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure.
Bombay High Court Cites 5 - Cited by 0 - D G Karnik - Full Document

All India Central Bank Employees ... vs Central Bank Of India, A Body Corporate ... on 17 January, 2007

10. The decision in Dhanwantrai R. Joshiís case (supra), rather than assisting the contention sought to be raised on behalf of the respondent, clearly establishes that the impugned order is unsustainable. Attention was sought to be drawn to the paragraph 15 of the said decision wherein it has been held thus: "Decree under Order VIII, Rule 5 or Rule 10 is passed because of the specific provisions under Order VIII that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, then it shall be taken to be admitted except against a person under disability, and thereafter there is a provision that the Court has discretion to pronounce judgment on the basis of the facts contained in the plaint.
Bombay High Court Cites 4 - Cited by 3 - R M Khandeparkar - Full Document

Shri. Ashok S/O Kundalrai Mohekar vs The National Textile Corporation Ltd. ... on 12 March, 2015

10] The question that was considered by the Division Bench in Dhanvantarai R. Joshi (supra) was whether a decree passed under Order 8 Rule 5 or Rule 10 of the Code could be set aside by filing an application under Order 9 Rule 13 of the Code. It was held that provisions of Order 8 Rule 5 or Rule 10 and provisions of Order 9 operate in different fields and hence where a decree is passed under Order 8 Rule 5 or Rule 10 of the Code, then application under Order 9 Rule 13 was not maintainable. It has also ::: Downloaded on - 07/05/2015 19:43:06 ::: 8 wp3802.13 been observed in paragraph 13 as under:
Bombay High Court Cites 5 - Cited by 0 - A S Chandurkar - Full Document

M/S.G.E.Contrywide Financial ... vs K.C.Sheth H.U.F And 4 Ors. And Manoj K. ... on 26 February, 2016

7. Secondly, it must be noted that the decree is passed not under Order IX of the Code of Civil Procedure, 1908 in the absence of the Defendants. The Defendants did not file any Written Statement to the Suit. Since there was no Written Statement, the Suit was set down for hearing as an undefended Suit. The Judgment and Decree pronounced in the Suit is, accordingly, as a decree passed under 1 (2013)11 SCC 296 Sharayu. 7/11 ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 06:42:14 ::: 906-NMS-45-15&641-14-S-3526-99.doc Order VIII Rule 10 of the Code of Civil Procedure, 1908 and not an exparte decree under Order IX Rule 6 of the Code of Civil Procedure, 1908. As held by the Division Bench of our Court in the case of Dhanwantrai R. Joshi & Ors. Vs. Satish J. Dave & Ors. 2, the remedy in such case is not to file an application for setting aside the decree, but to file an appeal against such decree.
Bombay High Court Cites 4 - Cited by 0 - S C Gupte - Full Document
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