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2013 DIGILAW 2531 (MAD)

Chitrakala v. P. Mahesh

2013-07-18

K.SUGUNA, M.DURAISWAMY

body2013
JUDGMENT :- M. Duraiswamy, J. 1. The above appeal arises against the judgment and decree dated 24.11.2009 passed in O.S.No.539 of 2006 on the file of the Additional District Court-cum-Fast Track Court No.I, Coimbatore. 2. The second defendant is the appellant. The first respondent was the plaintiff. The respondents 2 to 4 were the defendants 1, 3 and 4 respectively. The plaintiff filed the suit in O.S.No.539 of 2006 for partition, delivery of possession and for costs. 3. The brief case of the plaintiff is as follows:- (i) The first defendant is the mother of the plaintiff and the second defendant. The third defendant is a private Trust said to have been created by the first defendant. The fourth defendant is a partnership firm consisting of plaintiff and the defendants as its partners, which according to the plaintiff was dissolved with effect from 31.3.1996. The suit property consists of land and building. According to the plaintiff, the suit property was originally purchased in the name of the second defendant under two registered sale deeds dated 30.10.1991. The first defendant has been doing business in sarees for more than 3 decades and out of the fund so earned by her, the suit property was purchased in the name of the second defendant. The construction was put up by the first defendant with her funds. The suit property was always treated and enjoyed as joint family property and the plaintiff and the defendants 1 and 2 have equal rights in the same. (ii) According to the plaintiff, by a partnership deed dated 1.4.1994, the plaintiff and the defendants 1 and 2 constituted a partnership firm amongst themselves in the name and style of M/s.Palani Murugan Silks, which is the fourth defendant. The suit property was brought into partnership firm as capital to be treated and held as the property of the fourth defendant firm and was so treated and held by the plaintiff and the defendants. The defendants 1 and 2 wanted the signature of the plaintiff in a document called Memorandum dated 30.03.1996 representing that the family property, namely, the suit property was taken to the third defendant Trust and the plaintiff was informed that he would get his share/benefit from the Trust. The defendants 1 and 2 wanted the signature of the plaintiff in a document called Memorandum dated 30.03.1996 representing that the family property, namely, the suit property was taken to the third defendant Trust and the plaintiff was informed that he would get his share/benefit from the Trust. The plaintiff was not aware of the contents of the Trust deed but was made to believe that the Trust was intended for the benefit of the entire family members. (iii) The fourth defendant firm was dissolved with effect from 31.03.1996. The suit property was let out to various tenants and the income arising there from has been shared and distributed amongst the plaintiff and the defendants 1 and 2. The plaintiff did not suspect the defendants 1 and 2 being mother and sister respectively. Thereafter, in the month of October and November, 2006, there has been dissensions in the family, particularly, between the defendants 1 and 2. The dissensions arose because of the impending marriage of the second defendant's daughter, to a groom whom the first defendant has not approved. As a result of such dissensions, the second defendant asserted that she is the exclusive owner of the suit property as the title deeds stand in her name. Subsequently, the plaintiff also came to know that he was not a beneficiary in the third defendant Trust and he has been duped in this regard by the representations of the defendants 1 and 2. (iv) The Trust has not been recognised and the purported vesting of the property in the third defendant has been rejected by the Income Tax Department. (v) In such a scenario, the suit property itself continues to vest in the erstwhile fourth defendant firm as per the partnership deed dated 1.4.1994. But, the plaintiff being an erstwhile partner of the fourth defendant firm is entitled to 1/3rd share in the suit property. The plaintiff is in joint possession and enjoyment of the suit property. In these circumstances, the plaintiff filed the suit. 4. The brief case of the second defendant is as follows:-According to the second defendant, the suit is not maintainable in view of the existence of arbitration clause, which can be found in the plaint document No.3 itself. The plaintiff is in joint possession and enjoyment of the suit property. In these circumstances, the plaintiff filed the suit. 4. The brief case of the second defendant is as follows:-According to the second defendant, the suit is not maintainable in view of the existence of arbitration clause, which can be found in the plaint document No.3 itself. The defendant also filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 seeking reference to arbitration and the said Application in I.A.No.2625 of 2007 is also pending. The suit is liable to be dismissed since the Civil Court has no jurisdiction to entertain the suit. Further, the second defendant had stated that she does not want to go into the merits of the case as I.A.No.2625 of 2007 is pending and the Civil Court has no jurisdiction. The second defendant reserved the right to file Additional Written Statement if necessary subsequent to the disposal of the said application. In these circumstances, the second defendant prayed for dismissal of the suit. 5. Before the trial Court, there was no oral and documentary evidence on either side. The trial Court decreed the suit. Aggrieved over the same, the second defendant has filed the above appeal. 6. Heard Mr.AR.L.Sundaresan, learned Senior Counsel, appearing for the appellant and Mr.M.Santhanaraman, learned counsel, appearing for the first respondent. 7. For the sake of convenience, the parties are referred to in this Appeal as referred to in the suit before the trial Court. 8. The learned Senior Counsel appearing on behalf of the appellant submitted that the trial Court has erroneously decreed the suit; the plaintiff failed to let in oral and documentary evidence on his side. The learned Senior Counsel also contended that the trial Court should have dismissed the suit since there was no oral and documentary evidence to prove the averments stated in the plaint. The learned Senior Counsel further submitted that the application in I.A.No.2625 of 2007, which was filed by the second defendant under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the matter for arbitration, was dismissed by the trial Court on 25.7.2008. The learned Senior Counsel further submitted that the application in I.A.No.2625 of 2007, which was filed by the second defendant under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the matter for arbitration, was dismissed by the trial Court on 25.7.2008. According to the learned Senior Counsel, immediately, the second defendant applied for certified copy of the fair and final order and since the copies were not made ready, she filed an application in I.A.No.324 of 2009 to stay all further proceedings in O.S.No.539 of 2006, which was also dismissed by the trial Court, aggrieved over which, the second defendant preferred the Civil Revision Petition in C.R.P.No.162 of 2010 before this Court and this Court directed the trial Court to issue certified copy to the second defendant on or before 29.1.2010. However, the trial Court disposed of the suit in O.S.No.539 of 2006 on 24.11.2009. Therefore, according to the learned Senior Counsel, the second defendant did not have an opportunity to file a separate Civil Revision Petition as against the fair and final order passed in I.A.No.2625 of 2007. 9. The learned Senior Counsel in support of his contention relied on the judgment reported in (2012) 5 Supreme Court Cases 265 [C.N.Ramappa Gowda versus C.C.Chandregowda (Dead) by LRs and another] wherein, the Hon'ble supreme Court held as follows:-"23. In the light of the rationes decidendi of the cases cited hereinabove, when we examined the judgment and order of the trial court granting decree of partition in favour of the appellant-plaintiff, we could notice that the appellant-plaintiff has sought to prove his case that the suit property was a joint family property only on the strength of an 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 appellant-plaintiff was correct, it was of vital importance for the trial court to scrutinise 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 by 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. 24. But the trial court seems to have relied upon the case of the plaintiff merely by 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. 24. Reliance placed on the affidavit in a blindfold manner by the trial court merely on the ground that the defendant had failed to file the written statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which could be nothing short of a decree which is penal in nature. 25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-fling 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 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 judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring hi to prove the facts pleaded in the plaint. 26. 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 judgment 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 judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. 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 judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex-parte judgment 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 proceedings which hardly promotes the cause of speedy trial. 27. 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. 28. 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 Exts.P-1 to P-10 without even discussing the nature of the document indicating that the suit property was a joint property. Exts.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. 29. 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. 29. 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 appellant-plaintiff 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. 30. 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 judgment 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 respondent-defendant to file the written statement. The appeal consequently stands dismissed. However, we are conscious of the fact that the appellant-plaintiff for no fault on his part has been forced to entangle himself in the appeal before the High Court as the respondent giving rise to an appeal before this Court, although the respondent-defendant had leisurely failed to file the 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 appellant—plaintiff, the respondent-defendant promptly challenged the same by filing an appeal before the High Court. 31. 31. 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 fair play by awarding a sum of rupees twenty-five thousand by way of a token cost to the appellant-plaintiff to be paid by the respondent-defendant expeditiously as the impugned order of the High Court directing retrial shall be given effect to only thereafter. 32. The appeal thus stands dismissed subject to the payment of costs by the respondent-defendant to the appellant-plaintiff." 10. Countering the submissions made by the learned Senior Counsel appearing for the appellant, Mr.M.Santhanaraman, learned counsel appearing on behalf of the first respondent/plaintiff submitted that there is no necessity for letting in oral and documentary evidence when the defendant had not specifically denied the plaint averments in the written statement. The learned counsel further submitted that since there was no specific denial in the written statement, it amounts to admission and therefore, the non-examination of the plaintiff is not fatal to the suit. The learned counsel also relied on Order VIII, Rule 5 of the Civil Procedure Code, which reads as follows:-"5. Specific denial – (1) 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: Provided that the Court may in its discretion require any fact so admitted to be proved other wise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced." The learned counsel submitted that the trial Court had rightly decreed the suit and prayed for dismissal of the Appeal. 11. On a careful consideration of the materials available on record and the submissions made by both the counsels, the following points arose for consideration:- (i) Whether the plaintiff is entitled for a decree as prayed for even in the absence of oral and documentary evidence? (ii) Whether the plaintiff is entitled for a decree for partition and separate possession? (iii) Whether the trial Court is right in decreeing the suit when the plaintiff failed to produce oral and documentary evidence to prove his case? 12. It is pertinent to note that the trial Court framed 5 triable issues for consideration in the suit, but in order to prove those issues, there was no oral and documentary evidences on the side of the plaintiff. It is true that the second defendant filed an application I.A.No.2625 of 2007 under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the matter for arbitration. The said application was dismissed by the trial Court. The plaintiff applied for certified copy of the fair and final order for preferring Civil Revision Petition. However, the copies were not made ready. Therefore, the second defendant filed the application in I.A.No.324 of 2009 under Section 151 of the C.P.C. and sought for stay of all further proceedings in O.S.No.539 of 2006. The said application was also dismissed by the trial Court and hence, the second defendant preferred the Civil Revision Petition in C.R.P.No.162 of 2010. This Court, by order dated 20.01.2010, while disposing of the Civil Revision Petition, directed the trial Court to furnish certified copy of the fair and decretal order in I.A.No.2625 of 2007 on or before 29.1.2010. But, the trial Court disposed of the suit on 24.11.2009 itself. In other words, the second defendant got the certified copy of the fair and final order in I.A.No.2625 of 2007 only after the disposal of the suit. But, the trial Court disposed of the suit on 24.11.2009 itself. In other words, the second defendant got the certified copy of the fair and final order in I.A.No.2625 of 2007 only after the disposal of the suit. Therefore, it is clear that the second defendant had no opportunity to prefer the Civil Revision Petition before the disposal of the suit, but, the trial Court while decreeing the suit found that the second defendant did not challenge the fair and final order passed in I.A.No.2625 of 2007. In these circumstances, the finding of the trial Court in this regard is erroneous. 13. The trial Court framed 5 triable issues, and in Paragraph No.4 of the judgment, it has mentioned as follows:- "4. On perusal of the plaint and the written statements, the following issues were framed for trial:- 1. Whether the suit property belongs to 4th defendant partnership firm? 2. Whether the plaintiff has right to share over the suit property? 3. Whether this Court has no jurisdiction to try the suit? 4. Whether the plaintiff is entitled to claim the 1/3 share over the suit property? 5. To what other relief?." 14. Though the trial Court based on the pleadings found that there were triable issues, it has decreed the suit only based on the plaint averments. It is settled position of law that burden of proof lies only on the plaintiff and the plaintiff can succeed in the suit only on the strength of his case and not on the weakness of the defendant's case. The finding of the trial Court are without any basis whatsoever. The averments stated in the plaint should be proved by oral and documentary evidences by the plaintiff. 15. The ratio laid down by the Hon'ble Apex Court in the judgment relied on by the learned Senior Counsel in (2012) 5 Supreme Court Cases 265 squarely applies to the facts and circumstances of the present case. 16. In the present case, the plaint itself indicates that there are disputed questions of fact involved in the case giving rise to two versions. Therefore, it is not safe for the Court to record an ex-parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. 16. In the present case, the plaint itself indicates that there are disputed questions of fact involved in the case giving rise to two versions. Therefore, it is not safe for the Court to record an ex-parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. It is also well acknowledged by the legal dictum that assertion has no proof and hence, the burden lies on the plaintiff to prove that the property is available for partition. Even if there was no written statement to the contrary or any evidence of rebuttal, the burden is on the plaintiff to prove his case. 17. In our view, the trial Court clearly adopted an erroneous approach inferring that merely because there was no evidence of denial or rebuttal, the plaintiff's case can be held to have been proved. Therefore, we are of the view that the judgment and decree of the trial Court are liable to be set aside and the matter should be remitted back to the trial Court for fresh disposal. 18. The learned Senior Counsel submitted that the second defendant may be permitted to file additional written statement and contest the suit on merits before the trial Court. The learned Senior Counsel also submitted that the second defendant is giving up prayer sought for in I.A.No.2625 of 2007 and further submitted that the second defendant is prepared to face the trial in the suit before the trial Court. 19. Having regard to the submissions made by the learned Senior Counsel for the appellant, we permit the second defendant to file appropriate application before the trial Court for filing additional written statement within a stipulated time. 20. In these circumstances, the judgment and decree of the trial Court are set aside. The Appeal is allowed and the matter is remanded back to the Additional District Court-cum-Fast Track Court No.1, Coimbatore for fresh disposal. The connected Miscellaneous Petition is closed. No costs. 21. The second defendant shall file appropriate application for filing additional written statement before the trial Court within 10 days from the date of receipt of a copy of this judgment. The connected Miscellaneous Petition is closed. No costs. 21. The second defendant shall file appropriate application for filing additional written statement before the trial Court within 10 days from the date of receipt of a copy of this judgment. After filing of the additional written statement, the Additional District Judge, Fast Track Court No.1, Coimbatore is directed to frame additional issues and decide the suit in O.S.No.539 of 2006 afresh on merits and in accordance with law after conducting trial within a period of four months from the date of receipt of a copy of this judgment.