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Non examination of the evidence and documents exparte decree was passed in a stereo type manner and as such the exparte decree is liable to be set aside=apex court upheld the high court order in remanding the suit for fresh trial after filing written statement, with out distrubing the possession of half share obtained under the exparte decree, subject to the result of the suit. in addition apex court awarded a costs of Rs.25,000/- payable by defendant to the plaintiff before commencing trial.

REPORTABLE

The Plaintiff, in "distress", captur...

The Plaintiff, in "distress", captures the sympathy of the judge and jury. Production with Sydney Granville, 1919 (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA

CIVIL APPEAL JURISDICTION

CIVIL APPEAL NO._3710 OF 2012
(Arising out of SLP (C) 33361/2010)

C.N. RAMAPPA GOWDA ..Appellant

Verus

C.C. CHANDREGOWDA (DEAD) BY LRs. & ANR. ..Respondents

J U D G E M E N T
GYAN SUDHA MISRA, J.

The impugned order dated 05.10.2010 passed by the Division
Bench of the High Court of Karnataka at Bangalore in R.F.A.No. 597/2004
is under challenge in this appeal after grant of special leave at the
instance of the plaintiff-appellant by which the High Court has set aside
the judgment and decree of partition passed in favour of the plaintiff-
appellant by the Civil Judge (Sr. Divn.) Chikmagalur dated 28.01.2004 and
the appeal was remanded to the trial court in order to consider the matter
afresh. The defendants-respondents herein have also been granted liberty
to file written statement and produce the documents within four weeks from
the date of the order passed by the High Court and the trial court was
directed to dispose of the suit on merits in accordance with law within a
period of six months. However, the decree of partition which the plaintiff-
appellant already got executed in his favour was made subject to the
result of retrial of the suit.
2. (i) The core question which requires determination in this
appeal is whether the High Court exceeded its jurisdiction by
directing the trial court for retrial of the suit and permitting the
defendants to file written statement and documents without
assigning any justifiable and legally sustainable reason
particularly when the defendants-respondents were admittedly served
with the summons and were also duly represented by their advocate in
the trial court?

(ii) Further question which is related to the issue is
whether the defendants-respondents who had chosen not to file
written statement in spite of several opportunities granted by
the trial court, could be granted fresh opportunity by the High
Court to file written statement and order for retrial resulting into
delay and prejudice to the plaintiff-appellant from enjoying the
fruits of the decree in his favour?.

(iii) Yet another important question which arises herein
and frequently crops up before the trial court is whether the trial
court before whom the defendants failed to file written statement in
spite of repeated opportunities could straightway pass a decree in
favour of the plaintiff without entering into the merits of the
plaintiff’s case and without directing the plaintiff to lead
evidence in support of his case and appreciating any evidence or in
spite of the absence of written statement, the trial court ought to
try the suit critically appreciating the merits of the plaintiff’s
case directing the plaintiff to adduce evidence in support of his
own case examining the weight of evidence led by the plaintiff?

3. Before we appreciate the aforesaid questions involved in this
appeal, it appears essential to record some of the salient features and
facts of the case giving rise to this appeal after grant of leave.
4. The plaintiff-appellant had filed a suit for partition and
separate possession of landed property measuring 13 acres 20
guntas which according to his case was a joint family property
wherein the partition had not taken place and as the defendants-
respondents had failed to arrange for partition and separate
possession of the plaintiff’s half share in the schedule
property, the plaintiff was compelled to file a suit for
partition. It was also averred in the plaint that the
defendants-respondents had partitioned the property amongst
themselves without giving any share to the plaintiff-appellant.
The plaintiff-appellant sent a legal notice dated 24.05.1999 to
the defendants-respondents which were duly served on them in
response to which the defendants appeared through their advocate
and sent a reply on 10.07.1999 denying the claim of the
plaintiff. The plaintiff-appellant in view of the reply
of the defendants-respondents filed a suit bearing
O.S.No.197/2002 before the court of Civil Judge (Sr. Divn.) at
Chikmagalur for partition and separate possession. The
defendants-respondents in the said suit were served with the
notice in response to which Vakalatnama was filed by their
advocate. However, in spite of numerous opportunities, no
written statement was filed by the defendants-respondents.
Since the defendants-respondents failed to file written
statement, the trial court directed the plaintiff to lead
evidence. The plaintiff filed his evidence by way of affidavit
along with certain documents which were marked as Ex.P-1 to P-
10. However, the plaintiff was neither cross-examined by the
defendants nor the defendants had filed the written statement
as already stated hereinbefore.
5. Since the defendants neither filed written statement nor cross-
examined the plaintiff, the learned Judge vide judgment and
order dated 28.01.2004 on the basis of the pleadings and the
ex-parte evidence adduced by the plaintiff in support of his
case, decreed the suit in favour of the plaintiff-appellant and
was thus held entitled to a decree of partition to the extent of
half share in the landed property. The learned trial judge
further held that the defendants although were served with the
notice and were represented by their counsel, they did not
choose to file written statement denying the case of the
plaintiff and hence there was no reason to disbelieve the case
of the plaintiff. Accordingly, the suit was decreed directing
that the plaintiff-appellant shall be entitled to half share in
the property.
6. The defendants-respondents herein thereafter challenged the
judgment and decree before the High Court by filing an appeal
bearing RFA No. 597/2004 wherein the plaintiff-appellant herein
submitted that the defendants-respondents have not stated any
valid or justifiable reason for non-filing of the written
statement nor took part in the proceedings before the trial
court in spite of service of summons. There was also no
prayer incorporated seeking permission to file the written
statement . It was also stated therein that the plaintiff had
already got the preliminary decree of partition executed and
came in possession of half share of the schedule property.
7. The High Court by its interim order dated 30.05.2005 had also
refused to grant stay of execution of the decree in favour of
the plaintiff-appellant and directed that the trial court may
conclude the final decree proceedings. However, it was observed
that if the preliminary decree is given effect to and the
property is divided and allotted in the final decree
proceedings, the same shall be subject to the result of the
appeal. Thereafter during pendency of the appeal before the
High Court, the defendant No.1 died whose legal representatives
were brought on record.
8. The appeal was finally heard by the High Court and the judgment
and order in appeal was delivered on 05.10.2010 by the High
Court setting aside the judgment and decree passed by the
trial court and the matter was remanded to the trial court for
its retrial and consideration of the matter afresh as already
stated hereinbefore. The plaintiff-appellant felt aggrieved
with the impugned order of the High Court and hence filed the
special leave petition before this Court wherein leave was
granted and the matter was heard at some length.
9. Learned counsel for the plaintiff-appellant has reiterated the
contentions urged before the High Court and submitted that the
defendants-respondents ought to be held to have forfeited their
rights to file their written statement and adduce evidence as
the defendants were duly served with the summons and were also
represented by their advocate. In spite of this the defendants
chose not to file written statement although several
opportunities were granted and they had also not stated any
reason for not filing written statement. It was further urged
that even in appeal the defendants have not disputed the factum
of the suit property being joint family property and, therefore,
in absence of any evidence to the contrary, the High Court ought
not to have interfered with the judgment and decree passed by
the trial court. It was submitted that the defendants had slept
over the matter and committed grave latches when they failed to
file written statement for which no reason at all has been
assigned by the defendants and, therefore, the High Court
committed error by granting undue indulgence and permitting the
defendants to file written statement and documents when their
right to file the same stood forfeited.
10. Contesting the appeal, it was urged on behalf of the defendants-
respondents that the suit of the plaintiff-appellant has been
decreed only on the basis of the averments in the plaint which
was legally impermissible for even if the suit has been decided
in the absence of written statement, the trial court ought not
to have decreed the suit without cross-examination of the
plaintiff’s witness and without appreciation of evidence and,
therefore, it has rightly been set aside by the High Court.
Elaborating on this part of his submission, it was contended
that the trial court was bound to independently examine the
case of the plaintiff and satisfy itself as to the correctness
of the plaintiff’s claim even in the absence of written
statement which evidently has not been done. In these
circumstances, the High Court has rightly exercised its
discretion and allowed the defendants-respondents to file their
written statement. To reinforce his submission, it was further
supplemented that a duty is cast upon the court to examine the
plaintiff and satisfy itself as to the correctness of the
averments of the pleadings and the trial court ought not to
have adopted the plaint without even cross-examination of the
plaintiff. In support of his submission, learned counsel has
placed reliance on the ratio of the decision of this Court in
Balraj Taneja And Another. vs. Sunil Madan And Another reported
in (1999) 8 SCC 396 wherein this Court has dealt with a
situation which has arisen in the present appeal. In the
matter of Balraj Taneja (supra), the Court while considering a
circumstance wherein written statement was not filed by the
defendant, held that the court is duty bound to adjudicate even
in the absence of complete pleadings or in the presence of
pleadings of only one party. Learned counsel in this context
has specifically placed reliance on the observations of this
Court which is of great relevance and value wherein it was held
as follows:-
“As pointed out earlier, the court has not to act blindly upon the
admission of a fact made by the defendant in his written statement
nor should the court proceed to pass judgment blindly merely because
a written statement has not been filed by the defendant traversing
the facts set out by the plaintiff in the plaint filed in the
court. In a case, specially where a written statement has not been
filed by the defendant, the court should be a little cautious in
proceeding under Order 8 Rule 10 CPC. Before passing the judgment
against the defendant it must see to it that even if the facts set
out in the plaint are treated to have been admitted, a judgment
could possibly be passed in favour of the plaintiff without
requiring him to prove any fact mentioned in the plaint. It is a
matter of the court’s satisfaction and, therefore, only on being
satisfied that there is no fact which need be proved on account of
deemed admission, the court can conveniently pass a judgment against
the defendant who has not filed the written statement. But if the
plaint itself indicates that there are disputed questions of fact
involved in the case regarding which two different versions are set
out in the plaint itself, it would not be safe for the court to
pass a judgment without requiring the plaintiff to prove the facts
so as to settle the factual controversy. Such a case would be
covered by the expression “the court may, in its discretion, require
any such fact to be proved” used in sub-rule (2) of Rule 5 of Order
8, or the expression “may make such order in relation to the suit as
it thinks fit” used in Rule 10 of Order 8”.

11. Explaining the default on the part of the defendant for not
filing written statement it has been stated that late C.C. Chandregowda
represented by his Lr. C.C. Harish was suffering from severe illness
due to jaundice. This fact was pleaded before the High Court at the stage
of appeal and the High Court in the light of the same has rightly
remanded the matter to the trial court to re-consider it afresh. Learned
counsel for the defendants-respondents also submitted that the remand
order of the High Court will not serve the interest of justice if the
defendants-respondents are not allowed to place written statement of the
defendants-respondents on record and the remand order will not serve any
useful purpose if the suit is restored and ordered for retrial without
permitting the defendants-respondents to file written statement.
Learned counsel has contended that the filing of written statement is
governed by procedural law and this Hon’ble Court has held in Kailash
vs. Nanhku And Ors. reported in (2005) 4 SCC 480, as follows:-

“The purpose of providing the time schedule for filing the
written statement under Order 8 Rule 1 CPC is to expedite and not
to scuttle the hearing. The provision spells out a disability on
the defendant. It does not impose an embargo on the power of
the court to extend the time. Though the language of the proviso
to Rule 1 Order 8 CPC is couched in negative form, it does not
specify any penal consequences flowing from the non-compliance.
The provision being in the domain of the procedural law, it has
to be held directory and not mandatory. The power of the court to
extend time for filing the written statement beyond the time
schedule provided by Order 8 Rule 1 CPC is not completely taken
away.”

12. It was finally submitted that the plaintiff-appellant who
claims to be in possession of his share in the plaint schedule property
would not be prejudiced in any manner by the order of remand and hence the
High Court was perfectly justified in remanding the matter for its trial
by granting permission to the defendants-respondents to file written
statement which need not be interfered with by this Court under its extra-
ordinary jurisdiction under Article 136 of the Constitution.
13. In the light of the ratio decidendi of the cases cited
hereinabove, when we examined the judgement and order of the trial court
granting a decree of partition in favour of the plaintiff-appellant, we
could notice that the plaintiff-appellant has sought to prove his case that
the suit property was a joint family property only on the strength of
affidavit which he had filed and has failed to lead any oral or documentary
evidence to establish that the property was joint in nature. Even if the
case of the plaintiff-appellant was correct, it was of vital importance
for the trial court to scrutinize the plaintiff’s case by directing him to
lead some documentary evidence worthy of credence that the property sought
to be partitioned was joint in nature. But the trial court seems to have
relied upon the case of the plaintiff merely placing reliance on the
affidavit filed by the plaintiff which was fit to be tested on at least a
shred of some documentary evidence even if it were by way of an ex-parte
assertion. Reliance placed on the affidavit in a blindfold manner by the
trial court merely on the ground that the defendant had failed to file
written statement would amount to punitive treatment of the suit and the
resultant decree would amount to decree which would be nothing short of a
decree which is penal in nature.
14. We find sufficient assistance from the apt observations of this
Court extracted hereinabove which has held that the effect of non-filing of
the written statement and proceeding to try the suit is clearly to expedite
the disposal of the suit and is not penal in nature wherein the defendant
has to be penalised for non filing of the written statement by trying the
suit in a mechanical manner by passing a decree. We wish to reiterate that
in a case where written statement has not been filed, the Court should be a
little more cautious in proceeding under Order 8 Rule 10 CPC and before
passing a judgement, it must ensure that even if the facts set out in the
plaint are treated to have been admitted, a judgement and decree could not
possibly be passed without requiring him to prove the fact pleaded in the
plaint. It is only when the Court for recorded reasons is fully satisfied
that there is no fact which needs to be proved at the instance of the
plaintiff in view of the deemed admission by the defendant, the Court can
conveniently pass a judgement and decree against the defendant who has not
filed the written statement. But, if the plaint itself indicates that
there are disputed questions of fact involved in the case arising from the
plaint itself giving rise to two versions, it would not be safe for the
Court to record an ex-parte judgement without directing the plaintiff to
prove the facts so as to settle the factual controversy. In that event,
the ex-parte judgement although may appear to have decided the suit
expeditiously, it ultimately gives rise to several layers of appeal after
appeal which ultimately compounds the delay in finally disposing of the
suit giving rise to multiplicity of proceeding which hardly promotes the
cause of speedy trial. However, if the Court is clearly of the view that
the plaintiff’s case even without any evidence is prima facie unimpeachable
and the defendant’s approach is clearly a dilatory tactic to delay the
passing of a decree, it would be justified in appropriate cases to pass
even an uncontested decree. What would be the nature of such a case
ultimately will have to be left to the wisdom and just exercise of
discretion by the trial court who is seized of the trial of the suit.
15. When we examined the instant matter on the anvil of what has
been stated above, we have noticed that the trial court has decreed the
suit without assigning any reason how the plaintiff is entitled for half
share in the property. The same is absolutely cryptic in nature wherein
the trial court has not critically examined as to how the affidavit filed
by the plaintiff in support of his plea of jointness of the family was
proved on relying upon Ex.P-1 to P-10 without even discussing the nature of
the document indicating that the suit property was a joint property. Ex.P-
1 to P-10 are the preliminary records viz. Atlas, Tipni Book, R.R. Pakka
Book, Settlement Akarband, sale deeds etc. The trial court although relied
upon these documents, it has not elaborated critically as to why these
documents have been believed without indicating as to how it proves the
plea that the property always remained joint in nature and had never been
partitioned between the parties. Even if the trial court relied upon
these documents to infer that the property was joint in nature, it failed
to record any reason as to whether the property was never partitioned among
the coparceners. It is a well acknowledged legal dictum that assertion is
no proof and hence, the burden lay on the plaintiff to prove that the
property had not been partitioned in the past even if there was no written
statement to the contrary or any evidence of rebuttal. The trial court in
our view clearly adopted an erroneous approach by inferring that merely
because there was no evidence of denial or rebuttal, the plaintiff’s case
could be held to have been proved. The trial court, therefore, while
accepting the plea of the plaintiff-appellant ought to have recorded
reasons even if it were based on ex-parte evidence that the plaintiff had
succeeded in proving the jointness of the suit property on the basis of
which a decree of partition could be passed in his favour.
16. As a consequence of the aforesaid analysis and the reasons
recorded hereinabove, we are of the view that the High Court was legally
justified in setting aside the judgement and decree of the trial court and
allowing the appeal to the limited extent of remanding the matter to the
trial court for a de-novo trial after permitting the defendant-respondent
to file the written statement. The appeal consequently stands dismissed.
However, we are conscious of the fact that the Plaintiff/Appellant for no
fault on his part has been forced to entangle himself in the appeal before
the High Court as Respondent giving rise to an appeal before this Court,
although the Defendant/Respondent had leisurely failed to file written
statement in spite of numerous opportunities to file the same and also had
failed to cross-examine the plaintiff witnesses, but once the decree for
partition of half share was passed in favour of the Plaintiff/Appellant,
the Defendant/Respondent promptly challenged the same by filing an appeal
before the High Court. Since the disposal of the suit for partition has now
been dragged into a protracted retrial of the suit, we consider it legally
just and appropriate to balance the scales of equity and fairplay by
awarding a sum of rupees twenty five thousand by way of a token cost to the
Plaintiff/Appellant to be paid by the Defendant /Respondent expeditiously
as the impugned order of the High court directing retrial shall be given
effect to only thereafter.
17. The appeal thus stands dismissed subject to the payment of cost
by the Defendant/Respondent to the Plaintiff/Appellant.
…..……………………..J
(T.S. Thakur)

…………………………J
(Gyan Sudha Misra)
New Delhi,
April 23, 2012
———————–
17

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