C.N. RAMAPPA GOWDA versus C.C. CHANDREGOWDA (DEAD) BY LRS. & ANR.

Citation: [2012] 5 S.C.R. 453 · Decided: 23-04-2012 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Dismissed

Judgment (excerpt)

[2012] 5 S.C.R. 453 
C.N. RAMAPPA GOWDA 
v. 
C.C. CHANDREGOWDA (DEAD) BY LRS. & ANR. 
(Civil Appeal No. 3710 of 2012) 
APRIL 23, 2012 
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.] 
Code of Civil Procedure, 1908 - Or. 8, r. 10 - Non-filing 
A 
B 
of written statement - Duty of Court - Held: In a case where 
written statement has not been filed, the Court should be a C 
little more cautious in proceeding under Or.8 r.10 CPC and 
before passing a judgement, it must ensure that even if the 
facts set out in the plaint are treated to have been admitted, 
a judgement and decree could not possibly be passed without 
requiring him to prove the fact pleaded in the plaint - It is only D 
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 judgement and decree 
against the defendant who has not filed the written statement 
E 
- 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 judgement without directing the 
plaintiff to prove the facts so as to settle the factual controversy 
F 
- In the instant case, the trial court decreed the suit without 
assigning any reason how the plaintiff was entitled for half 
share in the property - The same was absolutely cryptic in 
nature wherein the trial court did not critically examine as to 
how the affidavit filed by the plaintiff in support of his plea of G 
jointness of the famlJy was proved - 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 -
453 
H 
454 
SUPREME COURT REPORTS 
[2012] 5 S.C.R. 
A The trial court 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 High Court was legally justified in setting aside 
the judgement and decree of the trial court and allowing the 
B appeal to the limited extent of remanding the matter to the 
trial court for a de-novo trial after permitting the defendant-
respondent to file the written statement - However, since the 
disposal of the suit for partition has now been dragged into a 
protracted retrial of the suit, it is legally just and appropriate 
C to balance the scales of equity and Fairplay by awarding a sum 
of rupees twenty five thousand by way of a token cost to the 
Plaintiff/Appel/ant to be paid by the Defendant/Respondent 
expeditiously as the impugned order of the High court 
directing retrial shall be given effect to only thereafter. 
D 
The appellant had filed a suit for partition and 
separate possession of landed property which according 
to his case was a joint family property. The defendants-
respondents were served with the notice in response to 
which Vakalatnama was filed by their advocate. However, 
E in spite of numerous opportunities, no written statement 
was filed by the defendants-respondents and 
subsequently, the trial court directed the plaintiff. 
appellant to lead evidence. The plaintiff filed his evidence 
by way of affidavit along with certain documents. On the 
F basis of the pleadings and the ex-parte evidence 
adduced by the plaintiff in support of his case, the trial 
court decreed the suit in favour of the plaintiff-appellant 
and held him entitled to a decree of partition to the extent 
of half share in the landed property. The defendants-
G respondents thereafter filed appeal before the High Court. 
The High Court set aside the judgment and decree passed 
by the trial court and remanded the matter to the trial 
court for its retrial and consideration of the matter afresh. 
The defendants-respondents were also granted liberty to 
H file written statement and produce the documents and 
C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 455 
(DEAD) BY LRS. & ANR. 
the trial court was directed to dispose of the suit on 
A 
merits. The decree of partition which the plaintiff-
appellant had already got executed in his favour was 
made subject to the result of retrial of the suit. 
The questions which required determination in the 
8 
present appeal were: 1) Whether the High Court 
exceeded its jurisdiction b

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