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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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