C.N. Ramappa Gowda Vs.
C.C. Chandregowda (Dead) by LRS. & ANR.
[Civil Appeal No.
3710 of 2012 arising out of SLP (C) 33361/2010)]
J U D G E M E N T
GYAN SUDHA MISRA, J.
1.
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
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