C.N.RAMAPPA GOWDA Vs C.C.CHAQNDERGOWDA (D) BY LRS.
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: C.A. No.-003710-003710 / 2012
Diary number: 37029 / 2010
Advocates: Vs
T. V. RATNAM
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REPORTABLE
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
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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?
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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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