Page 1 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

Page 2 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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Page 3 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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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Page 17 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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