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2022 DIGILAW 386 (KAR)

Sannathayamma v. Chandregowda

2022-03-17

NATARAJ RANGASWAMY

body2022
JUDGMENT Nataraj Rangaswamy, J. - This appeal is filed by the defendants in O.S. No. 142/2011 on the file of the Court of the Civil Judge and JMFC., Periyapatna (henceforth referred to as the 'Trial Court') challenging the divergent opinion of the Court of the Addl. Senior Civil Judge and JMFC., Hunsur, sitting at Periyapatna, (henceforth referred to as the 'First Appellate Court') in R.A. No. 56/2013, by which it reversed the judgment and decree passed by the Trial Court in O.S. No. 142/2011 and decreed the suit of the plaintiff for partition and separate possession. 2. The parties will henceforth be referred to as they were arrayed before the Trial Court. The appellants herein were the defendants while the respondent herein was the plaintiff before the Trial Court. 3. The suit in O.S. No. 142/2011 was filed by the plaintiff for partition and separate possession of his 1/3rd share in the suit schedule properties. It is claimed that the grandfather of the plaintiff, Sri Kodigowda, had three children, namely, Sri Kengegowda, Smt. Alamma/Halamma and Smt. Lakshmi, who is defendant No. 9 in the suit. Sri Kengegowda died leaving behind his wife, defendant No. 1, and children i.e., defendant Nos. 2 to 8. Likewise, Smt. Alamma/Halamma died leaving behind the plaintiff. It is claimed that the suit properties were ancestral joint family properties of the plaintiff and defendants and all of them cultivated the suit lands and were in joint possession of the same. It is alleged that after the death of Sri Kengegowda, the defendants attempted to sell the suit properties without effecting a partition. The plaintiff demanded his share in the suit properties, which was turned down and hence, the plaintiff was advised to file a suit for partition. 4. On service of suit summons, defendant Nos. 1 to 8 appeared through a counsel, but failed to file the written statement within the time prescribed. Defendant No. 9 was placed ex parte before the Trial Court, Later, an application was filed by the learned counsel for defendant Nos. 1 to 8 seeking permission to file a written statement which was objected by the plaintiff. The Trial Court rejected the application (I.A. No. IV) and imposed cost of Rs. 1,000/-. The defendants did not pay the cost. 1 to 8 seeking permission to file a written statement which was objected by the plaintiff. The Trial Court rejected the application (I.A. No. IV) and imposed cost of Rs. 1,000/-. The defendants did not pay the cost. When the case was set down for trial, the defendants filed another application seeking permission to cross-examine PW.1 which was also rejected by the Trial Court by imposing cost of Rs. 500/-. Thereafter, the case was posted for arguments. 5. Based on the oral and documentary evidence, the Trial Court dismissed the suit on the ground that the plaintiff was not able to prove his genealogy and could not trace his lineage to Smt. Alamma/Halamma. 6. Being aggrieved by the aforesaid judgment and decree of the Trial Court, the plaintiff filed Regular Appeal No. 56/2013 before the First Appellate Court. In the said appeal, the plaintiff filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short 'the CPC') to produce his genealogy as additional documentary evidence. The First Appellate Court allowed the application and contemporaneously allowed the appeal and decreed the suit and declared that the plaintiff is entitled to 1/3rd share in the suit schedule properties. 7. Being aggrieved by the aforesaid judgment and decree, the defendants have filed this Regular Second Appeal. 8. The learned counsel for the defendants/appellants submitted that the Trial Court committed an error in rejecting the application filed by them seeking permission to file a written statement and also for cross-examination of P.W.1. The learned counsel submitted that the defendants were entitled to cross-examine P.W.1 as a matter of right. Nonetheless, the Trial Court on a wrong assumption of law, rejected the application on the ground that the defendants had not filed their defence. He further contended that the First Appellate Court perpetuated the mistake by not following the procedure prescribed under Order XLI Rule 28 of the CPC after allowing the application filed under Order XLI Rule 27 of the CPC. He submitted that in the absence of any documentary evidence to establish the genealogy of the plaintiff to Sri Kodigowda, the First Appellate Court fell in error in decreeing the suit for partition. 9. He submitted that in the absence of any documentary evidence to establish the genealogy of the plaintiff to Sri Kodigowda, the First Appellate Court fell in error in decreeing the suit for partition. 9. In response, the learned counsel for the plaintiff - respondent submitted that the plaintiff had pleaded in his plaint about the relationship with Sri Kodigowda and in the absence of any written statement, the First Appellate Court was justified in holding that the plaintiff had proved the relationship. He also contended that the defendants were absolutely lethargic in defending the suit inasmuch as they failed to file the written statement, they also failed to participate in the proceedings before the First Appellate Court. They lay low till the plaintiff filed FDP No. 3/2015 before the Court of Civil Judge and JMFC., Periyapatna. Thereafter, they filed this Regular Second Appeal belatedly and allowed the Final Decree Court to draw a final decree which was thereafter executed in Execution Petition No. 46/2018 before the Court of Additional Civil Judge and JMFC., Periyapatna, whereby the possession of the share of the plaintiff in the suit schedule properties was handed over to him. He, therefore, submitted that this Court may not grant any liberty to the defendants to unsettle the concluded proceedings. 10. I have considered the submissions made by the learned counsel for the parties. 11. Having regard to the contentions urged, the substantial questions of law which arise for consideration in this appeal are: 1. Whether the Trial Court committed an error in rejecting the application filed by the defendants seeking permission to file the written statement? 2. Whether the defendants lost the right to cross-examine PW.1 if they had not filed their written statement? 3. Whether the First Appellate Court committed an error in not following the procedure as prescribed under Order XLI Rule 28 of the Code of Civil Procedure, 1908 in view of the judgment of this Court in the case of Shanthaveerappa vs. K.N. Janardhanachari [ILR 2007 KAR 1127]? 12. In a suit for partition, proprietary rights of the parties are at stake. Therefore, the Courts are bound to do substantial justice between the parties within the framework of law without harping upon technicalities. If the defendants had not filed their written statement and had sought permission to file it, the Trial Court must have considered the same liberally. 12. In a suit for partition, proprietary rights of the parties are at stake. Therefore, the Courts are bound to do substantial justice between the parties within the framework of law without harping upon technicalities. If the defendants had not filed their written statement and had sought permission to file it, the Trial Court must have considered the same liberally. The Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union Of India [ AIR 2005 SC 3353 ] held that time stipulated under Order VIII Rule 1 of the CPC is merely directory and not mandatory and Courts are entitled to entertain written statement even after the time fixed was expired provided, the delay is sufficiently and substantially explained. Even otherwise, the Trial Court fell in error in not allowing the defendants to cross-examine PW.1 in as much as the default on the part of the defendants in not filing a written statement cannot result in an automatic decree in favour of the plaintiff. The defendants were entitled as a matter of right to cross-examine PW.1 even though they had not filed the written statement. 13. In that view of the matter, the Trial Court committed an error in not permitting the defendants to file their written statement and also in not allowing them to cross-examine PW.1. The First Appellate Court which was bound to examine the regularity of the proceeding in view of the provisions of Order XLI Rule 33 and Section 105 of the CPC, failed to consider whether the defendants had any reasonable cause for not filing the written statement in time. In addition, once the First Appellate Court came to the conclusion that additional documentary evidence is to be permitted, then the First Appellate Court ought to have followed the procedure under Order XLI Rule 28 of the CPC as held by a coordinate Bench of this Court in Shanthaveerappa's case (referred supra). In view of the above, the substantial questions of law framed by this Court are answered accordingly. 14. Before parting, it is necessary to note that the defendants have been casual in conducting the proceedings and have allowed the plaintiff to take further steps resulting in the division of the properties. In view of the above, the substantial questions of law framed by this Court are answered accordingly. 14. Before parting, it is necessary to note that the defendants have been casual in conducting the proceedings and have allowed the plaintiff to take further steps resulting in the division of the properties. The resultant position in view of the findings recorded by this Court, is that the properties that have gone out of the hands of the defendants has to be restored by restoring status quo ante. This would expose the plaintiff to untold hardship which this Court cannot ignore. It is, therefore, imminent that in order to balance the equities between the plaintiff and defendants, the defendants are to be mulcted with costs so as to compensate for the time, money and energy lost by the plaintiff in pursuing the proceedings. Hence, the following: ORDER The Appeal is allowed. The impugned Judgment and Decree dated 07.10.2014 passed by the Court of the Additional Senior Civil Judge and JMFC., Hunsur, sitting at Periyapatna, in R.A. No. 56/2013 is set aside. The Judgment and Decree dated 12.06.2013 passed by the Court of Civil Judge and JMFC., Periyapatna, in O.S. No. 142/2011 is also set aside. The suit is restored to the file of the Trial Court, which shall accept the written statement filed by the defendants and proceed with the suit in accordance with law. The Trial Court shall conclude the trial of the suit on a day-to-day basis and dispose off the suit within an outer limit of six months from the date of receipt of a certified copy of this Judgment. This is, however, subject to the condition that the defendants pay a sum of Rs. 50,000/-(Rupees Fifty Thousand only) to the plaintiff before the Trial Court by way of a demand draft on the next date of hearing. It is made clear that if the cost is not paid, then the defendants will not have the benefit of this Judgment and the proceedings which are concluded in Final Decree Proceedings in FDP No. 3/2015 on the file of Civil Judge and JMFC., Periyapatna and Execution Petition No. 46/2018 on Additional Civil Judge and JMFC., Periyapatna, shall remain unaffected. It is made clear that if the cost is not paid, then the defendants will not have the benefit of this Judgment and the proceedings which are concluded in Final Decree Proceedings in FDP No. 3/2015 on the file of Civil Judge and JMFC., Periyapatna and Execution Petition No. 46/2018 on Additional Civil Judge and JMFC., Periyapatna, shall remain unaffected. It is made clear that if the Trial Court comes to the conclusion that the plaintiff is entitled for 1/3rd share in the suit properties then the final decree drawn in FDP No. 3/2015 and the proceedings in Execution Petition No. 46/2018 referred above shall remain unaffected. In order to expedite the disposal of the suit, the parties are directed to appear before the Trial Court on 12.04.2022. The pending interlocutory application stands disposed off.