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Search Results Judgments > Phrase: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 ...

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 ...

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 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 ...

Jan 31 1927

Hatimbhai Hassanally Vs. Framroz Eduljee Dinshaw

  • Decided on : 31-Jan-1927

Court : Mumbai

Reported in : AIR1927Bom278; (1927)29BOMLR498

... , Civil Procedure Code, Act XIV of 1882. There is, however, a material change in the Code of 1908 by the omission of the words 'or of the jurisdiction of the Court which passed it' in Order XXI, Rule 7. It was accordingly held in Hari v. Narsingrao (1913) 16 Bom. L.R. 30 that the executing Court had no power under Order XXI, Rule 7, of the Civil Procedure Code ... to sales by the Court under Order XXXIV, Rule 5; and Rule 552 gives the right to a purchaser to obtain a certificate of sale and also at his own costs, a conveyance from the mortgagor. Further, the form of ordinary conditions of sale set out at page 326 of the Rules provides in Condition 8 for the execution of a conveyance to the purchaser ... make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the Court, provided that the Court shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure. But, in my .judgment, the rules in question are in no way inconsistent with Order XXXIV, Rule 5, or Order XXI, Rule 92 ... further; for, even assuming that the words 'suits for land' in Section 5 of the Civil Procedure Code of 1859 and Clause 12 of the Letters Patent were originally intended to apply to the same class of suits, the fact that Section 5 has been amplified into Section 16 of the Civil Procedure Code of 1908 without any corresponding alteration of Clause 12 and the impossibility, to my mind ...

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 ...

Aug 23 1973

Habib Ahmed Khudabax Vs. Abdul Kabur Rehmanji Godiwala and Ors.

  • Decided on : 23-Aug-1973

Court : Mumbai

Reported in : AIR1975Bom41; (1974)76BOMLR427; 1974MhLJ812

... down the scope of such right of appeal lies under the Code of Civil Procedure, 1908. In order, therefore, to see whether proviso (I) is attracted in any particular case, one has to turn to the relevant Rent Control Rules i.e. Rules 5,6 and 8, to find out what provisions of the Code of Civil Procedure are made applicable to the decrees and orders made under ... . Section 8 of the civil procedure Code , 1908 lays down that saves as provided Code and by the presidency Small Causes not court of Small Causes, provided, however that the High court may direct that any such provision with such modification and adaptation 9 of the small Causes Courts act also empowers the High Court to frame rules and prescribes the procedure to be ... the said rules (Rent Control Rules) would show that if the suit fell under Rule 5(2), the procedure prescribed under the Rules framed under Section 9 of the Presidency small Cause Courts Act, and if the suit fell under Rule 8, the procedure prescribed by the Code of Civil Procedure.'And then the learned Judge proceeded point out that in either case, i.e. whether Rule 5 or Rule 8 applies ... under Rule 5(2), the procedure prescribed under the Rules framed under Section 9 of the Presidency small Cause Courts Act, and if the suit fell under Rule 8, the procedure prescribed by the Code of Civil Procedure.'And then the learned Judge proceeded point out that in either case, i.e. whether Rule 5 or Rule 8 applies the result would be the same as in both the cases procedure ...

Jul 21 2011

Gorakh Hilal Patil And Anr. Vs. Parit Samaj Seva Mandal And Anr.

  • Decided on : 21-Jul-2011

Court : Mumbai - Aurangabad

... 5 persons to institute the suit. No any resolution by respondent No.1 whatsoever is placed on record to show that the 5 panchas are authorised to file such suit. 22. The contention of the counsel for the respondents herein that the provisions under Order I Rule 8 of the Civil Procedure Code are procedural in nature, those are directory and not mandatory and, therefore, merely because such procedure ... 4 panchas, though there are 262 members of the said Mandal, without following procedure under Order I Rule 8 of the Civil Procedure Code and in absence of any resolution by all members authorising 5 panchas to institute such suit ? Before going to the factual matrix and issues raised in the present Civil Revision Application, at this juncture, it would be appropriate to reproduce hereinbelow ... the contention of the applicants herein that the respondent No.1 is not entitled to sue and further the 5 members out of 262 members cannot institute the suit and prosecute the suit since no procedure under Order I Rule 8 of the Civil Procedure Code to file the suit in the representative capacity has been undergone or followed by the respondents or the ... suit, in that case, it was open for them to institute a representative suit by following the procedure prescribed under Order I Rule 8 of the Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal through its President and 5 persons, who according to the respondent No.1 are panchas of the Mandal. The defect in ...

Aug 12 2004

Chintaman Sukhdeo Kaklij and Ors. Vs. Shivaji Bhausaheb Gadhe and Ors. ...

  • Decided on : 12-Aug-2004

Court : Mumbai

Reported in : 2004(5)BomCR573; 2004(4)MhLj739

... Sayajirao Ganpatrao Patil : 2004(5)BomCR548 , Bhosale J., took a view that the provisions of Order 8, Rule 1, Civil Procedure Code as amended by Act of 22 of 2002 are directory in nature. Rule 10 of Order 8, Civil Procedure Code governs both situations where the written statement is required under Rule 1, Order 8 as also where it has been demanded under Rule 9. In both ... of the amended Code.29. In our opinion, harmonious reading of Rules 1, 5, 9 and 10 of Order 8 of Civil Procedure Code would indicate that in exceptional and extraordinary cases the Court has discretion to permit the defendant to file the written statement beyond the period of 90 days stipulated under Rule 1, Order 8 of Civil Procedure Code.30. The aforesaid ... 8, Rules 1, 5 and 10 of the Code.24. In Modula India v. Kamakshya Singh Deo, : AIR1989SC162 , the Supreme Court while dealing with the scope of Order 8 of the Code held as follows :'An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the Code of Civil Procedure. Rules 1, 5 and 10 of this Code ... Civil Procedure Code (CPC for short). The question that falls for consideration is whether the Court can permit filing of written statement beyond the period of 90 days stipulated under Order 8, Rule 1 of the Civil Procedure Code. The reference arises in following manner.2. In Prabhakar Madhavrao Mule v. Bhagwan Mitharam, : 2004(5)BomCR568 , Vagyani J., held that by virtue of recent amendment to the Civil Procedure Code ...

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