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Whether court can decree the suit if written statement is not filed?

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)

Second Appeal No. 476 of 2015

Decided On: 10.04.2018

Martand

Vs.

Dilip Namdeorao Gotmare and Ors.

Hon’ble Judges/Coram: Manish Pitale, J.

Citation: 2018(5) MHLJ 674

1. By this appeal, the appellant (original plaintiff) is challenging the judgment and order dated 29-04-2015 passed by the Court of District Judge-10, Nagpur (Appellate Court), whereby the appeal filed by the appellant herein was dismissed and the judgment and order passed by the Court of 2nd Joint Civil Judge, Senior Division, Nagpur (Trial Court) stood confirmed.

2. The appellant filed Special Civil Suit No. 1021 of 1996, being a suit for declaration, damages and permanent injunction, claiming that he had become the owner of suit property i.e. agricultural field survey No. 83/1 situated at village Satnawari, PH No. 52, Taluka Nagpur (Rural), District Nagpur, admeasuring 4.06 acres. It was his case that the said suit property was allotted to him in a Partition Deed dated 23-11-1986. It was claimed that under the said document, Namdeorao Gotmare, the father of appellant, had allotted the said property to the appellant in exclusion of other members of the family i.e. defendant Nos. 1 to 4 (respondent Nos. 1 to 4 herein). The appellant placed a photocopy of the said Partition Deed on record and it was claimed in his evidence that the original of the said document was with respondent No. 1. The defendants failed to file written statement in the proceedings before the trial Court. It is so recorded by the trial Court in paragraph 6 of its judgment that defendant Nos. 1 to 4 were proceeded without written statement and that defendant No. 5, being a person to whom the other defendants were allegedly intending to sell the suit property, did not even appear before the Court. Therefore, suit was proceeded ex parte against defendant No. 5.

3. By its judgment and order dated 20-08-2007, the trial Court dismissed the suit filed by the appellant. The trial Court found that the claims made by the appellant were based on the aforesaid Partition Deed or family arrangement, but, it was not produced before the Court. It was also noted by the trial Court that although the alleged witnesses to the said Partition Deed were produced before the Court, unless the said document was brought on record, the evidence of such witnesses was of no avail. It is a matter of record that the suit property has been recorded in the name of all the heirs of said Namdeorao Gotmare, including the appellant. The trial Court found that the appellant had failed to prove his case and therefore the suit was dismissed.

4. Aggrieved by the same, the appellant filed Regular Civil Appeal No. 442 of 2012 before the appellate Court. By the impugned judgment and order, the appeal has been dismissed and it has been found that the appellant failed to establish that he was the exclusive owner of the suit property. The appellate Court treated the aforesaid document i.e. Partition Deed as Will and it found that in the absence of said document being brought on record, the contentions of the appellant could not be accepted. It was specifically argued on behalf of the appellant before the appellate Court that in the absence of written statement filed by the contesting respondents (defendants), the trial Court ought to have held that the appellant had been able to prove his contentions on the basis of admissions and that a decree ought to have followed. The appellate Court rejected the contentions and dismissed the appeal, thereby confirming the judgment and decree passed by the trial Court.

5. Aggrieved by the impugned judgment and order, the appellant has filed this appeal. On 13-01-2017, this Court issued notice for final disposal of this appeal on the following substantial question of law :-

“Whether the plaintiff is entitled to a decree on admission in absence of document of title produced on record?”

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6. Shri A.S. Deshpande, learned Counsel appearing on behalf of the appellant submitted that since the respondents had failed to file written statement in the trial Court, on a conjoint reading of Order 8 Rule 10 and Order 12 Rule 6 of the Code of Civil Procedure, 1908 [CPC], the trial Court ought to have passed a decree on admissions in favour of the appellant. It was contended that absence of written statement on behalf of the respondents (defendants) amounts to admission of the claims made in the plaint by the appellant and that therefore, decree ought to have been passed by the trial Court in his favour. The learned Counsel for the appellant placed on record the judgments of the Hon’ble Supreme Court in the case of Karam Kapahi and others v. M/s. Lal Chand Public Charitable Trust and another, reported at MANU/SC/0240/2010 : AIR 2010 SC 2077, Balraj Taneja and another v. Sunil Madan and another, reported at MANU/SC/0551/1999 : AIR 1999 SC 3381 and judgment of this Court in the case of National Insurance Co. Ltd., Mumbai v. Dayanand Margeppa Pedde and others, reported at MANU/MH/0096/2010 : 2010 (2) Mh.L.J. 931.

7. On the other hand, Shri S.Z. Qazi, learned Counsel appearing on behalf of the respondents, submitted that although the respondents (defendants) had failed to file written statement before the trial Court, the appellant (plaintiff) was required to prove his case to the hilt. It was submitted that failure to file written statement on behalf of the respondents would not absolve the appellant from proving his case before the Court by adducing cogent evidence in support of his claim. It was submitted that when the basic document i.e. the alleged Partition Deed was never produced by the appellant before the trial Court, there was no error committed by the Courts below in dismissing the suit filed by the appellant. It was submitted that although the appellant claimed in his evidence that the original of the Partition Deed was with respondent No. 1, no notice to produce the original documents was issued by the appellant and he did not file any application before the Court for direction to respondent No. 1 to produce such document in the proceedings before the trial Court. It was submitted that the appellant had failed to prove his contentions by placing on record cogent evidence and that the Courts below were justified in dismissing the suit filed by the appellant. The plaintiff relied upon the judgments of the Hon’ble Supreme Court in the case of Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited and another, reported at MANU/SC/0270/2013 : (2013) 4 SCC 396 and Maya Devi v. Lalta Prasad, reported at MANU/SC/0122/2014 : (2015) 5 SCC 588.

8. Having heard the learned Counsel for the parties and upon perusal of record it needs to be examined as to whether the appellant is justified in claiming that due to failure on the part of the respondents to file written statement before the trial Court, it was necessary to pass a decree in his favour on the basis of pleadings in the plaint. The learned Counsel for the appellant has placed reliance on Order 8 Rule 10 and Order 12 Rule 6 of CPC. The aforesaid provisions read as follows :-

“Order VIII Rule 10 of C.P.C.

[10. Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.]”

Order XII Rule 6 of C.P.C

[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 question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

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(2) Whenever a judgment is pronounced under sub-rule(1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.]”

9. According to the learned Counsel appearing for the appellant a conjoint reading of the aforesaid provisions would show that failure on the part of the respondents to file written statement would require the Court to pronounce judgment against them and that the respondents (defendants) would be deemed to have admitted the claims made by the appellant in the plaint. It was contended that the burden on the appellant (plaintiff) would stand reduced to that extent, in the absence of written statement and any specific denial on behalf of the respondents.

10. A perusal of the aforesaid provisions and an analysis of the same based on the law laid down by the Hon’ble Supreme Court in that context, would show that when the defendants fails to file written statement and there is no specific denial on record in terms of pleadings, the Court is cast with a greater responsibility and onerous obligation to satisfy itself that the plaintiff has been able to prove his case to the hilt. In this context, the reliance placed by learned Counsel for the respondents on the judgment of the Hon’ble Supreme Court in the case of Maya Devi (supra) is appropriate. The relevant portion of the said judgment reads as follows :-

“41. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the Plaintiff’s claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha v. T ELCO Ltd., MANU/SC/0270/2013 : (2013) 4 SCC 396, will be sufficient. The failure to file a Written Statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the Court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted.”

11. Even in the judgment relied by the learned Counsel for the appellant in the case of Balraj Taneja and another (supra), the Hon’ble Supreme Court has held as follows :-

“29. 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 the Court should 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. 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 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.”

12. Applying the said position of law to the facts of the present case would show that the appellant has relied heavily on a document termed as Partition Deed. Even in the absence of written statement on behalf of the respondents specifically denying the claims made by the appellant, the burden was on the appellant to prove the aforesaid document in terms of the requirements of law, in order to successfully claim the relief of declaration and other ancillary reliefs sought in the suit filed by him. The Courts below have found that the appellant failed to produce the original Partition Deed and that only a photocopy of the same was placed on record. It was stated in the evidence of the appellant that the original of the said document was with respondent No. 1, but, no efforts were taken by the appellant in terms of law to ensure that the original document was brought before the Court.

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13. In the absence of the most crucial piece of evidence in support of the claims made by the appellant being brought on record, merely producing alleged witnesses to the said document before the Court was of no avail. In fact, the trial Court specifically records this aspect while rejecting the claims made by the appellant.

14. In the absence of written statement on behalf of defendants and deemed admissions by them, as claimed by the appellant, the law laid down by the Hon’ble Supreme Court places greater responsibility on the trial Court to ensure that the appellant has been able to prove his case to the hilt. In the present case, on the basis of material on record it is evident that the appellant, being the plaintiff, had miserably failed to produce cogent evidence on record to prove his case, even in the absence of written statement filed on behalf of the respondents. The view taken by the trial Court in this context cannot be found faulted with and the appellate Court has also confirmed the same by correctly applying the position of law.

15. Therefore, it is clear that the substantial question of law framed by this Court deserves to be answered in favour of the respondents and against the appellant and it is held that even if the respondents failed to file written statement in the present case, it was for the appellant to have proved his case to the hilt by producing cogent evidence. In the absence of aforesaid Partition Deed being placed before the Court despite the fact that it was the very basis of the claims of the appellant, the Courts below cannot be said to have committed an error in holding against the appellant. In this light, it is evident that the reliance placed on behalf of the appellant on judgment of the Hon’ble Supreme Court in Karam Kapahi (supra) and of this Court in National Insurance Co. Ltd. (supra), is misplaced. Hence, this appeal is dismissed with no order as to costs.

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