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2023 DIGILAW 1974 (MAD)

L. James v. L. Alex

2023-06-05

K.MURALI SHANKAR

body2023
JUDGMENT : PRAYER : Appeal suit filed under Section 96 of C.P.C., against the judgment and decree dated 18.11.2019 in O.S.No.77 of 2019 on the file of the learned Additional District and Sessions Judge, Padmanabhapuram. The Appeal Suit is directed against the judgment and decree passed in O.S.No.77 of 2019, dated 18.11.2019 on the file of the learned Additional District and Sessions Judge, Padmanabhapuram. 2. For the sake of convenience and brevity, the parties herein will be referred as per their status/ranking in the trial Court. 3. The suit is for partition. 4. Admittedly, the plaintiff and the defendants 2 to 5 are the children of the first defendant and the deceased Louis. 5. The case of the plaintiff is that the three items of suit properties are item Nos. 8, 10 and 11 in suit in O.S.No.95 of 2004 on the file of the Additional District Munsif's Court, Eraniel, which were jointly allotted to the defendants 6 to 11 in that suit as 'E' schedule as per compromise decree, dated 11.01.2005, in O.S.No.95 of 2004; that the plaintiff is 10th defendant and the defendants 1 to 5 are the defendants 6 to 9 and 11 and each has become entitled to 1/6 shares in the suit properties; that there is a family house and two shop buildings in the first item of the suit property, which was constructed by the deceased Louis and hence, the plaintiff is entitled to 1/6 share in that buildings also; that the suit properties have not been partitioned by metes and bound sofar; that the plaintiff came to know that the first defendant is making preparations to create fraudulent and collusive document in respect of suit properties in favour of the fourth defendant and if any invalid documents are created without the consent of other co-sharers, it will cause much inconvenience in the matter of equitable partition in the suit and that despite the repeated demands of the plaintiff, which includes the last demand made on 30.11.2018 to effect partition, the defendants are not co-operating the plaintiff and hence, the plaintiff is constrained to file the above suit for partition. 6. 6. The defence of the first defendant is that the plaintiff and the defendants are Christians; that as per the Indian Succession Act, widow is entitled to 1/3 share and their children are entitled to get 2/3 shares; that in O.S.No.95 of 2004, pending on the file of the Additional District Munsif Court, Eraniel, compromise decree was passed which reveals that the legal heirs of the deceased Louis are jointly allotted with compromise 'E' schedule property i.e., entire suit item Nos.8 to 10 and 11 as their share and that since the plaintiff and the defendants being the legal heirs of the deceased Louis, the first defendant is entitled to get 1/3 share in all the suit items and the plaintiff and the defendants 2 to 5 are entitled to get 2/3 shares in all the suit items; that the first defendant is competent to give her 1/3 share in all the suit items; that there are two old shop buildings situated on the west of the suit first item of the property in which, the plaintiff is in possession and enjoyment of one shop building and the defendants 2 and 3 are in possession and enjoyment of the another shop building; that the plaintiff and the defendants 2 and 3 have rented out their respective shop buildings and are receiving rent amount; that the first defendant has no intention to alienate any property to the fourth defendant or anybody else; that after execution of the document, the fourth defendant constructed two residential buildings and car porch; that the first defendant, after excluding the area of 15.250 cents given to the fourth defendant, is entitled to get the balance area in 1/3 share of first item with proportionate road frontage and is entitled to get 1/5th of 2/3 of suit items 1 to 3. 7. The fourth and fifth defendants have filed separate written statements reiterating the contentions raised by the first defendant. 7. The fourth and fifth defendants have filed separate written statements reiterating the contentions raised by the first defendant. In addition to the contentions raised by the first defendant, the fourth defendant has also taken a stand that the first defendant/mother executed two settlement deed on 28.09.2015 having an extent of 5 cents and 10.250 cents on the north -eastern portion of the suit first item of the property; that after the execution of the said documents, the fourth defendant got permission from the panchayat authorities and constructed residential buildings therein bearing Door No.5/51 D and 5/51D-1 and car porch therein; that the court yard having about a width of 15 links is existing on the east of the said buildings; that the fourth defendant and his family members can get access to the residential buildings and the car porch through the court yard and that the fourth defendant constructed a compound wall on the north, south, west and east of court yard and erected a iron gate in front of the court yard. 8. Admittedly, the defendants 2 and 3 had remained ex-parte. The learned trial Judge, upon considering the plaint and the written statements filed by the defendants 1, 4 and 5 and by invoking Order XII Rule 6 and Order XV Rule 1 of Civil Procedure Code, has passed the impugned judgment on admission, granting preliminary decree for division of suit properties into 15 equal shares and allotted two shares to the plaintiff and the defendants 4 and 5 each and the first defendant with five shares. Aggrieved by the impugned judgment and decree, the second defendant, who remained ex-parte before the trial Court, has preferred the present appeal 9. The points for determination are : (i) Whether the trial Court erred in passing the impugned judgment on admission, despite the fact that the defendants 1, 4 and 5 had specifically denied the plaintiff's plaint allegations and also disputed the plaintiff's case of availability of house in first item of the suit property ? (ii) Whether the judgment and decree of the trial Court are liable to be set aside on the ground of partial partition as a paddy field of 29 cents in re-survey No.21/9 of Simon Colony Village, Kalkulam Taluk, Kanyakumari District, was purchased by the deceased Louis and the same was very much available with the family. (ii) Whether the judgment and decree of the trial Court are liable to be set aside on the ground of partial partition as a paddy field of 29 cents in re-survey No.21/9 of Simon Colony Village, Kalkulam Taluk, Kanyakumari District, was purchased by the deceased Louis and the same was very much available with the family. (iii) Whether the trial Court erred in invoking Order XII Rule 6 and Order XV Rule 1 of C.P.C., in the same suit, despite the fact that the scope of both provisions are entirely different ? (iv) Whether the appeal is to be allowed ? 10. Admittedly, in the suit in O.S.No.95 of 2004 on the file of the Additional District Munsif Court, Eraniel, the plaintiff herein (O.S.No.77 of 2019 ) is the 10th defendant and the defendants 1 to 5 are the defendants 6 to 9 and 11 and that a compromise decree came to be passed in that suit on 11.01.2005, whereunder items 8, 10 and 11 shown as 'E' schedule in that suit were allotted to the plaintiff and the defendants 1 to 5 jointly. After compromise decree passed in O.S.No.95 of 2004, the plaintiff has laid the above suit for partition against his mother, sister and brothers in respect of the properties allotted in the compromise decree, dated 11.01.2005. 11. As rightly contended by the learned counsel for the plaintiff/first respondent and the learned counsel for the defendants/respondents 4 and 5, the plaintiff, in paragraph Nos. 3 and 4 of the plaint, has claimed 1/6 share in the suit properties. But in paragraph No. 5 and in the prayer portion, he has claimed partition by metes and bound and to allot 2/15 shares in the suit properties. It is pertinent to mention that the learned counsel for the plaintiff, even before the trial Court has specifically admitted that the plaintiff has been claiming 2/15 shares in the suit properties and not 1/6 shares as shown in paragraph Nos.3 and 4. 12. As already pointed out, the first defendant has filed a written statement admitting the nature of the properties and the parties entitlement over shares in the suit properties. The other contesting defendants 4 and 5 have also taken similar stand as that of their mother/first defendant, with regard to the nature of the properties and their entitlement over shares in the suit properties. 13. The other contesting defendants 4 and 5 have also taken similar stand as that of their mother/first defendant, with regard to the nature of the properties and their entitlement over shares in the suit properties. 13. It is admitted by all the contesting parties before the trial Court that the parties are Christians and as such they are governed by Indian Succession Act. It is also not in dispute that as per provisions of Indian Succession Act, widow is entitled to get 1/3 share and her children are entitled to get 2/3 shares. 14. No doubt, the defendants 1 and 4 have taken a specific stand that the first defendant had executed two settlement deeds on 28.09.2015 under document Nos.1893/2015 and 1894/2015 in favour of fourth defendant in respect of five cents and 10.250 cents respectively and that the fourth defendant after settlement, has constructed residential building therein. 15. It is the specific case of the plaintiff that after excluding area of 15.250 cents settled in favour of fourth defendant, the first defendant is entitled to get the balance area in 1/3 share of first item of property and also entitled to get 1/3 share in items 2 and 3 of the suit properties with proportionate road frontage. The contesting defendants have also taken a stand that there are two shop buildings in the first item of the property in which, one shop is in possession and enjoyment of the plaintiff and other one is in possession and enjoyment of the defendants 2 and 3. 16. Admittedly, the plaintiff has not disputed the said facutm. The learned trial Judge, upon considering the pleadings of the plaintiff and the contesting defendants, has directed for the appearance of parties and in pursuance of the same, the defendants 1, 4 and 5 were present before the concerned Court. The plaintiff has not turned up, but his counsel was present and after hearing them, by invoking Order XII Rule 6 and Order XV Rule 1 of C.P.C., the trial Court has passed the impugned judgment on admission. 17. The plaintiff has not turned up, but his counsel was present and after hearing them, by invoking Order XII Rule 6 and Order XV Rule 1 of C.P.C., the trial Court has passed the impugned judgment on admission. 17. At this juncture, it is necessary to refer Order XII Rule 6 of C.P.C, for better appreciation; “6.Judgment on admissions- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other questions between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 18. The learned counsel for the appellant/second defendant would submit that the trial Court has failed to consider that the power under Order XII Rule 6 of C.P.C., is discretionary and cannot be claimed as a matter of right and he has relied on the following decisions in support of his contention. (i) (1999) 8 SCC 396 : Balraj Taneja and another Vs. Sunil Madan and another : “Just as under Order 12 Rule 6 CPC the Court cannot act blindly upon the admission of a fact made by the defendant in his written statement the Court should not 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 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. 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 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 subrule (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. (ii) (2010 ) 6 SCC 601 : Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and another : “Civil Procedure Code, 1908 – Or.12 R.6 and Or.20 R.12 – Judgment on admission – Preconditions – Before a court can act under Or.12 R.6 the admission, held, must be clear and unambiguous – Admission if ambiguous depends upon the facts of each case - There being no clarity on nature of admission in present case, judgment on admission set aside and matter remanded to be decided on merits – Evidence Act, 1872 – S.58 – Civil Procedure Code, 1882 – Or.14 R.11 – Rent Control and Eviction – Eviction.” (iii) (2015) 9 SCC 287 : S.M.Asif Vs. Virender Kumar Bajaj. “8. The words in Order XII Rule 6 CPC “may” and “make such order…” show that the power under Order XII Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the Court. Virender Kumar Bajaj. “8. The words in Order XII Rule 6 CPC “may” and “make such order…” show that the power under Order XII Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the Court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order XII Rule 6 CPC. The said rule is an enabling provision which confers discretion on the Court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent’s claim. (iv) (2019) 20 SCC 425 : Hari Steel and General Industries Limited and another Vs. Daljit Singh and others. “25. In the judgment in the case of Himani Alloys Limited vs. Tata Steel Limited (supra), nature and scope of Order XII Rule 6 has been considered by this Court. In the aforesaid judgment this Court has held that the discretion conferred under Order XII Rule 6 of CPC is to be exercised judiciously, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant. Para 11 of the judgment read as under:- “11. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. There is no such admission in this case.” 26. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. There is no such admission in this case.” 26. In the judgment in the case of S.M. Asif vs. Virender Kumar Bajaj (supra), this Court has held that the power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a right. It is further held in the aforesaid case that where the defendants have raised objections, which go to root of the case, it would not be appropriate to exercise discretion under Order XII Rule 6 of CPC. Para 8 of the judgment read as under:- “8. The words in Order 12 Rule 6 CPC “may” and “make such order …” show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.” 27. In the judgment in the case of Balraj Taneja and another vs. Sunil Madan and another (supra), while considering the scope of Order VIII Rule 10 and Order XII Rule 6 of CPC, this Court has held that the court is not to act blindly upon the admission of a fact made by the defendant in the 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 filed in the court.” 19. The Hon'ble Supreme Court has settled the legal position with regard to the Order XII Rule 6 of C.P.C., that the power under Order XII Rule 6 of C.P.C., is discretionary and cannot be claimed as a matter of right; that Judgment on admission is not a matter of right and rather is a matter of discretion of the court. and that the court is not to act blindly upon the admission of a fact made by the defendant in the written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant. 20. But, on the other hand, the learned counsel for the first respondent would submit that the very object of the Rule 6 of Order 12 is to enable a party to obtain a speedy judgment at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled and relied on the following decisions. (i) 2000 (7) SCC 120 : Uttam Sing Dugal and Co.Ltd Vs. United Bank of India. “12. Before the trial judge, there was no pleading much less an explanation as to the circumstances in which the said admission was made, so as to take it out of the category of admissions which created a liability. On the other hand, what is stated in the course of the pleadings, in answer to the application filed under Order XII Rule 6 CPC, the stand is clearly to the contrary. Statements had been made in the course of the Minutes of the Board of Directors held on 30th May, 1990 to which we have already adverted to in detail. In the pleadings raised before the Court, there is a clear statement made by the respondent as to the undisputed part of the claim made by them. In regard to this aspect of communicating the resolution dated 30th May, 1990 in the letter dated 4th June, 1990 what is stated in the affidavit-in-opposition in application under Order XII Rule 6 CPC is save, what are matters on record and save what would appear from the letter dated 30th May, 1990 all allegations to the contrary are disputed and denied. This averment would clearly mean that the petitioner does not deny a word of what was recorded therein and what is denied is the allegation to the contrary. This averment would clearly mean that the petitioner does not deny a word of what was recorded therein and what is denied is the allegation to the contrary. The denial is evasive and the learned judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted.” (ii) 2010 (4) SCC 753 : Karam Kapahi and others Vs. M/s.Lal Chand Public Charitable and another. “48. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it ‘ex debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment. 49. If the provision of order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider in as much as the provision of order 12 Rule 1 is limited to admission by ‘pleading or otherwise in writing' but in Order 12 Rule 6 the expression ‘or otherwise' is much wider in view of the words used therein namely: ‘admission of fact.........either in the pleading or otherwise, whether orally or in writing'.” (iii) 2015 (8) SCC 428 : Raveesh Chand Jain Vs. Raj Rani Jain. “5. The trial court held that though the judgment dated 8.9.2003 of the District Court and judgment dated 12.9.2011 of the High Court had rejected the plea of the appellant that the suit property was a HUF property, these findings were made in a suit for partition whereas the present suit was filed for recovery of possession and damages. The trial court further held that for passing a decree under Order XII Rule 6 CPC, the defendant had to make an unequivocal and unqualified admission. The trial court further held that for passing a decree under Order XII Rule 6 CPC, the defendant had to make an unequivocal and unqualified admission. The appellant herein has not made such an admission regarding his liability to pay the damages claimed by the respondent. The trial court dismissed the application vide judgment dated 7.6.2013. 6. Aggrieved by the judgment of the trial court, the respondent filed a revision petition before the High Court. The High Court while allowing the appeal and decreeing the suit with costs held that the pleas taken by the appellant-defendant regarding the contribution made by his grandfather, father and himself in the purchase of the suit property had been rejected by the High Court vide judgment dated 12.9.2011 and the same will operate as res judicata. The High Court further held that while there was no evidence for holding the suit property to be a HUF property, the title deeds of the suit property and the land records stood in favour of the respondent-plaintiff. The High Court noted that the only new plea taken by the defendant in his written statement was that he was a co-owner vide compromise deed dated 22.10.1997 and held that this plea was barred on the grounds of constructive res judicata having not been raised earlier in the partition suit filed by the defendant. The High Court accordingly set aside the order passed by the trial court and decreed the suit.” 21. Bearing the above legal position in mind, let us consider the case on hand. 22. As already pointed out, the relationship between the parties and the nature of dispute are admitted. It is also not in dispute that the plaintiff and the defendants 1 to 5 are Christians and are governed by the Indian Succession Act. The plaintiff has only claimed 1/5 share in 2/3 shares of the suit properties. It is pertinent to note that the contesting defendants before the trial Court have specifically admitted that the plaintiff and the defendants 2 to 5 are entitled to get 1/5 of 2/3 shares i.e., 2/15 shares and the first defendant to get 1/3 share. 23. The plaintiff has only claimed 1/5 share in 2/3 shares of the suit properties. It is pertinent to note that the contesting defendants before the trial Court have specifically admitted that the plaintiff and the defendants 2 to 5 are entitled to get 1/5 of 2/3 shares i.e., 2/15 shares and the first defendant to get 1/3 share. 23. As already pointed out, the defendants have raised pleadings that the plaintiff and the defendants 2 and 3 have been in possession and enjoyment of one shop each and that 15.250 cents was settled in favour of the fourth defendant and the fourth defendant has made constructions therein. 24. Considering the above, as rightly observed by the learned trial Judge that there was no triable issue in the suit and it is a fit case to apply Order XII Rule 6 and Order XV Rule 1 C.P.C., for passing of judgment on admission and at the first hearing. It is pertinent to note that the appellant, who is the second defendant in the suit, has not chosen to contest the suit. Even now, the appellant/second defendant has not taken any stand that the suit properties are belonging to him and as such, the question of partition in the suit properties does note arise. 25. It is also not the case of the second defendant that the quantum of shares stated by the plaintiff and the contesting defendants is not correct and the parties are entitled to get different shares. As rightly contended by the learned counsel for the first respondent, the second defendant has not raised any other aspects or points touching the merits of the plaintiff's claim. No doubt, the second defendant being an ex-parte defendant, is certainly entitled to prefer an appeal challenging the judgment. 26. In the appeal memorandum, the second defendant has raised two grounds and the first one is that his deceased father Louis is also owning another property i.e., paddy field measuring an extent of 29 cents in re-survey No.21/9 of Simon Colony Village, Kalkulam Taluk, Kanyakumari District, which was purchased by his father Louis, but the said property has been left out and as such, the suit itself is bad for partial partition. 27. The learned counsel for the appellant would submit that the existence of the said left out property has been admitted by the plaintiff. 27. The learned counsel for the appellant would submit that the existence of the said left out property has been admitted by the plaintiff. But according to him, he was not aware of the said property at the time of filing of the suit. As rightly contended by the learned counsel for the contesting respondents, the defendants 1, 4 and 5 have not taken any defence touching the concept of partial partition. The second defendant now only in the appeal has taken such a plea. 28. At this juncture, it is necessary to refer the judgment of this Court in Baliah Nadar and Others Vs. Rayappan and others in S.A.Nos.2261 and 2262 of 1981 reported in CDJ 1992 MHC 229. “5.The other contention that the suit is bad for partial partition is also unsustainable in view of the judgment of this Court in Pakkiri Mohammed v. Kaji Mohammed Manjool Sahib 45 M.L.J. 321. It is only a Hindu joint family, a suit for partial partition is generally not accepted. The parties in the instant case are Indian Christians and that principle cannot apply and the ruling referred to above will govern.” 29. The above decision is squarely applicable to the case on hand. In the case on hand also, since the parties are Christians, the doctrine of partial partition cannot be made applicable to them. Even otherwise, if the appellant thinks that he is prejudiced by the exclusion of that property, he can very well bring a suit in respect of that property. Hence, the above contention of the second defendant, which is absolutely devoid of substance, is liable for rejection. 30. Now turning to the second contention of the appellant that Order 15 Rule 1 CPC is not applicable to the case on hand and according to the learned counsel for the appellant, the trial Court has applied the same, after the suit, had travelled beyond the stage of first hearing and moreover, both the pleas under Order XII Rule 6 CPC and that Order XV Rule 1 CPC, which are on different tracks, cannot be applied to one and the same case. 31. No doubt, as rightly contended by the learned counsel for the appellant, the scope of the both provisions are entirely different. 31. No doubt, as rightly contended by the learned counsel for the appellant, the scope of the both provisions are entirely different. But, as rightly pointed out by the learned counsel for the first defendant, there is no bar or prohibition for applying both the provisions in one and the same case. Before proceeding further, it is necessary to refer Order XV Rule 1 CPC. “Parties not at issue- Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.” 32. The words used “first hearing” of the suit assumes importance. While interrupting the words 'first hearing' of the suit, the Hon'ble Supreme Court in Badami (deceased) by her Legal Heir Vs. Bhali reported in (2012) 11 SCC 574 , after referring to its earlier decisions, has held that the words 'first hearing' do not mean the day for the return of the summons or the returnable date, but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. 33. In the case on hand, as already pointed out, the contesting defendants have filed their written statements and issues are yet to be framed. Considering the above and on relying the decision of the Hon'ble Supreme Court referred above, this Court has no hesitation to hold that the trial Court has rightly invoked Order XV Rule 1 C.P.C., along with Order XII Rule 6 C.P.C. Except the above, the appellant has not canvassed any other ground to impugn the judgment and decree of the trial Court. Hence, this Court concludes that the appeal is devoid of merits and the same is liable to be dismissed. 34. In the result, the appeal is dismissed. Consequently, connected Miscellaneous Petition is closed.