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Search Results Judgments > Act:CODE OF CIVIL PROCEDURE, 1908 - Rule 5 to 8 -

Feb 06 2004

Gaurang V. Merchant and Ors. Vs. Madhliso and Co. Pvt. Ltd. and Ors.

  • Decided on : 06-Feb-2004

Court : Mumbai

Reported in : 2004(2)ALLMR737; 2004(5)BomCR700; (2004)106BOMLR153

... 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.5. Rule 5 and Rule 10 of Order 8 of the Code of Civil Procedure read as under:-Rule 5. ... 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.5. Rule 5 and Rule ... 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.5. Rule 5 and Rule 10 of Order 8 ... 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.5. Rule 5 and Rule 10 of Order 8 of the Code ...

Mar 22 1995

Laxman Zingraji Adhau Vs. Sushila Zinguji Thakre and Ors.

  • Decided on : 22-Mar-1995

Court : Mumbai

Reported in : 1995(4)BomCR677; (1995)97BOMLR74

... . 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., : (1993)95BOMLR677 and the judgment ... Order 8, Rule 5 of the Code of Civil Procedure, When the Court required the plaintiff to file affidavits, it was acting under Order 8, Rule 5 and in its discretion required the plaintiff to prove the facts otherwise by such admissions, and called upon the plaintiff to prove the facts by affidavits. 6. The next question that arises is having proceeded under Order 8, Rule 5 of the Code of Civil Procedure, ... certainly set at naught the provisions of Order 8, Rule 5 of the Code of Civil Procedure because the Court will be free to change its mind and allow the defendant to file a written statement and proceed. If such a course of conduct is permitted by the Code, the provisions of Order 8, Rule 5 will be rendered nugatory.'8. In the aforesaid context, the Division Bench of ... . 6. The next question that arises is having proceeded under Order 8, Rule 5 of the Code of Civil Procedure, could the Court treat its earlier order as an ex-parte order. Such an order proceeding ex-parte against a party to the suit is contemplated by Order 9, Rule 6 of the Code of Civil Procedure. It is important to note that an ex-parte order contemplates ...

Sep 26 2001

Tejbai Tejshi and Ors. Vs. Gangubai Dinanath Ulvekar

  • Decided on : 26-Sep-2001

Court : Mumbai

Reported in : 2001(4)ALLMR594; 2002(1)BomCR109; 2002(1)MhLj350

... under Order 8, Rule 5 of Code of Civil Procedure against which the appellants at best ought to have preferred First Appeal and could not have asked for recall of the same on the basis of an application under Order 9, Rule 13 of Civil Procedure Code. It is thus submitted that the application filed by the appellants under Order 9, Rule 13 of Code of Civil Procedure itself ... pane Decree passed by the trial Court on October 31, 1990 in exercise of Order 8, Rule 5 of Civil Procedure Code. The question-whether in the facts of the present case the trial Court rightly invoked powers under Order 8, Rule 5 of Civil Procedure Code, can be examined only in such appeal,8. To my mind, the decisions relied upon by the appellants are not authorities ... Civil Procedure Code. The question-whether in the facts of the present case the trial Court rightly invoked powers under Order 8, Rule 5 of Civil Procedure Code, can be examined only in such appeal,8. To my mind, the decisions relied upon by the appellants are not authorities on the proposition that even if the order records that it has been passed in exercise of specific provision of the Civil Procedure Code ... 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.6. To my mind, the ...

Mar 01 1994

Narendra Patra Vs. Shiba Narayan Taldi and Anr.

  • Decided on : 01-Mar-1994

Court : Orissa

Reported in : AIR1995Ori45

... under Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure. Defendant No. 2 filed an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure, which was registered as Misc. Case No. 165 of 1986. In the aforesaid misc. case, the plaintiff took the objection that the suit having been decreed under Order 8, Rule 5(2), Code of Civil Procedure, an ... , Rule 2 and an ex parte decree passed under Order 8, Rule 10, is not to be treated differently from any other decree ex parte liable to be set aside under Order 9, Rule 13, Code of Civil Procedure. I am in respectful agreement with the aforesaid view of the Kerala High Court. Then again, Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure, ... Rule 13, Code of Civil Procedure. I am in respectful agreement with the aforesaid view of the Kerala High Court. Then again, Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure, does not contemplate decreeing of a suit, but it contemplates pronouncement of judgment on the basis of facts contained in the plaint. A decree is drawn up in such a case after pronouncement of judgment, under Rule ... -rule (2) of Rule 5 of Order 8, allowed the appeal. Hence the present revision.3. Mr. Murty appearing for the petitioner contends that time having been granted to the defendant for filing his written statement and yet no written statement having been filed, the Court is entitled to pronounce judgment under Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure ...

Jun 13 2007

The Principal Collector of Customs and The Union of India (UOI) throug ...

  • Decided on : 13-Jun-2007

Court : Mumbai

Reported in : 2007(4)ALLMR477; 2008(1)BomCR494; 2007(6)MhLj225

... matters originate from the order dated 21st March, 1997 passed in Suit No.3037 of 1991 by the Learned Single Judge purportedly exercising the powers under Order 8 Rule 5 and/or 10 of the Code of Civil Procedure, 1908 while disposing the suit.4. In the year 1988, the respondent No.1 sought to import from U.S. and Japan Photographic Machineries under Tariff Item No ... was condoned by order dated 30th June, 2003.5. As regards the Appeal No.585 of 2003, the same is against the decree passed on 21st March, 1997. The decree is purportedly passed in exercise of the powers under Order 8 Rule 5 and/or 10 of the Code of Civil Procedure.6. Order 8 Rule 5(1) of the Code of Civil Procedure provides that every allegation of fact in the plaint ... thereof. Apparently, therefore, the impugned order disposing the suit by no stretch of imagination can be said to be either under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure.11. Disposal of a suit, either under Rule 5 or Rule 10 of Order 8, has essentially to be based on the facts disclosed in the plaint. The impugned order nowhere discloses consideration of the facts ... the said expression under Order 8 Rule 5 or Rule 10 read with Section 2(9) of the Code of Civil Procedure. Besides, the same nowhere refers to the facts in the plaint. On the contrary, the suit appears to have been decreed in terms of prayer Clauses (a) and (d) solely on the perusal of the proceedings and the original documents. Rule 5 specifically refers to the facts ...

Apr 02 1998

National Insurance Co. Ltd. Vs. Heera and Ors.

  • Decided on : 02-Apr-1998

Court : Rajasthan

Reported in : 2000ACJ963; 1999(1)WLC551; 1998(1)WLN641

... Rule 10.27 of the Rules framed thereunder. It is pertinent to mention here that there is no ambiguity under statutory Rule 10.27 of the Rajasthan Motor Vehicles Rules, which clearly named the various sections of the Code of Civil Procedure, 1908 which may be exercised by a Claims Tribunal. There is no mention in the aforesaid rule about the applicability of either Section 3 or Section 115, Civil Procedure Code ... 8, Rule 5, Civil Procedure Code in the present case.(21) In my considered opinion, no one has vested right in any procedural matter unless any of the party acquired any substantial right before the change of procedure. Indisputably, in the present case before insertion of Order 8, Rule 5, Civil Procedure Code in the new Rules ... Rules framed thereunder have a colour of civil courts for limited purposes as envisaged under Section 169 of the said Act read with Rule 10.27 of the Rules framed thereunder. It is pertinent to mention here that there is no ambiguity under statutory Rule 10.27 of the Rajasthan Motor Vehicles Rules, which clearly named the various sections of the Code of Civil Procedure, 1908 ...

Aug 16 2012

Kailash Nath and Associates and Another Vs. Girdhar Gopal Sureka

  • Decided on : 16-Aug-2012

Court : Mumbai

... the provisions of Code of Civil Procedure, 1908 or at least must set out the reasons based on which the controversy is resolved. We are therefore, of the view that the impugned order passed by the learned Single Judge is totally contrary to Order 8 Rule 5(2) and Rule 10 as also Section 2(9) read with Order 20, Rule 4(2) of the Code of Civil Procedure. In our view ... Judgment: (R.D. Dhanuka, J.) The Appellants challenge the order of the learned Single Judge dated 18 June 2010 passing a decree against the Appellants under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908. The suit is decreed in terms of prayer clauses (a), (a)(i), (a)(ii), (b), (c) and (h) for want of written statement. 2. The present Appellants ... the board of the learned Single Judge on 18 June 2010 for an exparte decree. The learned Single Judge proceeded to pass an exparte decree under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908 in terms of prayer clauses (a), (a) (i), (a) (ii), (b), (c) and (h) and directed the Court Receiver to hand over possession of the suit premises ... on record and on perusal of such documents, the suit was decreed. Such an exercise is not permissible either under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure.............. 16. While exercising the powers either under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure, or even under Order 9 thereof against some of the defendants, it is absolutely necessary for the Court to ...

Aug 16 2012

Kailash Nath and Associates and Another Vs. Girdhar Gopal Sureka

  • Decided on : 16-Aug-2012

Court : Mumbai

... the provisions of Code of Civil Procedure, 1908 or at least must set out the reasons based on which the controversy is resolved. We are therefore, of the view that the impugned order passed by the learned Single Judge is totally contrary to Order 8 Rule 5(2) and Rule 10 as also Section 2(9) read with Order 20, Rule 4(2) of the Code of Civil Procedure. In our view ... Judgment: (R.D. Dhanuka, J.) The Appellants challenge the order of the learned Single Judge dated 18 June 2010 passing a decree against the Appellants under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908. The suit is decreed in terms of prayer clauses (a), (a)(i), (a)(ii), (b), (c) and (h) for want of written statement. 2. The present Appellants ... the board of the learned Single Judge on 18 June 2010 for an exparte decree. The learned Single Judge proceeded to pass an exparte decree under Order 8 Rule 5(2) and Rule 10 of the Code of Civil Procedure, 1908 in terms of prayer clauses (a), (a) (i), (a) (ii), (b), (c) and (h) and directed the Court Receiver to hand over possession of the suit premises ... on record and on perusal of such documents, the suit was decreed. Such an exercise is not permissible either under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure.............. 16. While exercising the powers either under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure, or even under Order 9 thereof against some of the defendants, it is absolutely necessary for the Court to ...

Apr 07 2010

Sujit Paul Vs. Mousomi Paul (Poddar)

  • Decided on : 07-Apr-2010

Court : Kolkata

... provisions contained in this Act and to such Rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure, 1908. The said provision makes it clear that the entire Code of Civil Procedure including the provision of Order IX of the Code of Civil Procedure is applicable to a Matrimonial Suit under Hindu ... in Order 8 Rule 5 of the Code of Civil Procedure, provision contained in Order 9 Rule 13 cannot be invoked, for setting aside such decree as, according to the Bombay High Court, such decree passed under Order 8 Rule 5 of the Code of Civil Procedure cannot be regarded as an ex parte decree and as such, the said decree can be set aside under Order 9 Rule 13 of the Code of Civil Procedure.10 ... said decree can be set aside under Order 9 Rule 13 of the Code of Civil Procedure.10. This Court is of the view that the principle laid down in the said case has no application in the facts of the instant case as the decree for divorce was not passed under Order 8 Rule 5 of the Code of Civil Procedure in the instant case. Here in the instant ... Rule 13 cannot be applied for setting aside the ex parte decree under certain circumstances.9. On perusal of the Bombay High Court's decision, this Court finds that Hon'ble Bombay High Court held that if a decree is passed by the learned Trial Judge by following the provision contained in Order 8 Rule 5 of the Code of Civil Procedure, provision contained in Order 9 Rule ...

Jun 14 2012

K.Sakthivel. Vs. The Assistant Commissioner of Income Tax

  • Decided on : 14-Jun-2012

Court : Chennai

... the statement is concerned, the assessee placed reliance on the provisions of the Code of Civil Procedure. The assessee contended that the statement recorded were not in confirmity with Order 18, Rules 5 & 8 of Code of Civil Procedure and Section 164 of the Code of Criminal Procedure. The assessee further questioned the validity of the retracted statement by referring to ... presence of DDIT (Investigation), the contention of the assessee that the statement was recorded in violation of provisions of Order 18, Rules 5 & 8 of Code of Civil Procedure and Section 164 of the Code of Criminal Procedure fails.20. As far as relevancy of the retraction statement is concerned, in the decision reported in [2008] 16 ... Rules 5 and 8 of Code of Civil Procedure and provisions of Section 164 of the Code of Criminal Procedure, the Tribunal held that even though the said provisions are to be observed, yet, the said provisions do not convert the income tax proceedings into regular civil or criminal proceedings. Therefore, the strict principles laid down in the Code of Civil procedure and in the Code of Criminal Procedure ... Code of Civil procedure and in the Code of Criminal Procedure were not warranted. Apart from that, the Tribunal, as a matter of fact, held that the statement made by the assessee was recorded in the presence of Deputy Director of Income Tax. As such, there is no violation of provisions of Order 18, Rules 5 and 8 of Code of Civil Procedure or Section 164 of Code of Criminal Procedure ...

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