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2008 DIGILAW 1029 (CAL)

Sandhya Rani Biswas v. Tarak Chandra Ghosh

2008-11-27

PARTHA SAKHA DATTA, SUBHRO KAMAL MUKHERJEE

body2008
JUDGMENT: MUKHERJEE, J. (1.) This is an appeal against the judgment and decree dated March 20, 2006 passed by the learned Judge, Thirteenth Bench, City Civil Court at Calcutta in Title Suit No. 2491 of 1994. (2.) The learned Trial Judge dismissed the suit ex parte. (3.) This appeal arises out of a partition suit. The plaintiff alleges that the mother of the parties, namely, Uma Sashi Ghosh, was the owner of the disputed property and she died intestate on October 26, 1984 leaving behind the plaintiff and the defendants as her heirs and legal representatives. The plaintiff submits that her brother, the defendant No. 1 in this suit, produced a purported will dated August 6, 1981. But, ultimately, the learned Additional District Judge, Eleventh Court at Alipore, District: South 24Parganas, dismissed the application for grant of probate on November 19, 1993, inter alia, holding that the will was a forged one. Therefore, the plaintiff claimed her one-third share in the suit property. (4.) The defendant No.1 although entered appearance in the suit on November 8, 2005, but he did not file his written statement in time. The suit was posted for ex parte hearing on March 20, 2006 and, on that date, the defendant No.1 filed his show-cause and written statement together. He prayed for acceptance of the written statement upon condonation of delay. (5.) The learned Trial Judge declined to accept the written statement as it was not filed within ninety days. Order VIII, Rule 1 has been amended by the Code of Civil Procedure (Amendment) Act, 2002. Apart from the fact that the provision is not mandatory, the substituted rule does not apply to the proceedings commenced before such amendment. (6.) The learned Trial Judge, therefore, ought not to have rejected the written statement relying upon the proviso to Order VIM, Rule 1 of the Code, which had no application. (7.) Peculiarly, the learned Trial Judge ex parte dismissed the suit, His findings are worth quoting: - "... From the affidavit of evidence and the plaint case I find that the plaintiff has stated that her mother Uma Sashi Ghosh was the owner of the suit premise properties and she inherited 1/3rd share of the same. Now suit properties comprise many immovable properties in different places including Kolkata but the plaintiff did not file a single paper that Uma Shastri Ghosh was owner of any suit properties. Now suit properties comprise many immovable properties in different places including Kolkata but the plaintiff did not file a single paper that Uma Shastri Ghosh was owner of any suit properties. So on the basis of affidavit of evidence of the plaintiff it cannot be decided that Uma Shastri Ghosh was the owner of such properties or that the plaintiff acquired title to the suit properties to the extent of 1/3rd share. I hold that without any paper in support of ownership title of the plaintiff to the suit properties to the extent of 1/3rd share cannot be granted. The plaintiff has failed to prove her title to the suit properties. So no decree and relief can be passed in favour of the plaintiff. (8.) It seems that the attention of the learned Judge was not drawn to the settled principle of law that a fact not disputed need not be proved. In the plaint, it was categorically asserted that the properties belonged to the mother and she died intestate. Therefore, the properties devolved upon her children in equal share. The learned Judge did not accept the written statement. The contentions of the plaintiff, therefore, remained uncontroverted. Order VIII, Rule 5(1) provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Under Rule 5(2) of Order VIII, where the defendant has not filed a written statement, it is open to the Court to pronounce judgment on the basis of the facts stated in the plaint. The rule is, of course, permissive in nature. (9.) We, therefore, set aside the impugned judgment and decree and direct the learned Trial Judge to accept the written statement filed by the defendant No.1. We restore the suit to its original file and number. (10.) We, also, direct the learned Trial Judge to decide the suit as expeditiously as possible. (11.) The appeal is, thus, allowed. (12.) In view of disposal of the appeal, the pending applications are, also, disposed of. (13.) We direct the parties to bear their respective costs in this appeal. The office is directed to send down the Lower Courts records immediately.