C N RAMAPPA GOWDA Vs. C C CHANDREGOWDA

JUDGEMENT

(1.) THE impugned order dated 05.10.2010 passed by the Division Bench of the High Court of Karnataka at Bangalore in R.F.A.No. 597/2004 is under challenge in this appeal after grant of special leave at the instance of the plaintiff-appellant by which the High Court has set aside the judgment and decree of partition passed in favour of the plaintiff- appellant by the Civil Judge (Sr. Divn.) Chikmagalur dated 28.01.2004 and the appeal was remanded to the trial court in order to consider the matter afresh. THE defendants-respondents herein have also been granted liberty to file written statement and produce the documents within four weeks from the date of the order passed by the High Court and the trial court was directed to dispose of the suit on merits in accordance with law within a period of six months. However, the decree of partition which the plaintiff- appellant already got executed in his favour was made subject to the result of retrial of the suit.

(2.) (i) The core question which requires determination in this appeal is whether the High Court exceeded its jurisdiction by directing the trial court for retrial of the suit and permitting the defendants to file written statement and documents without assigning any justifiable and legally sustainable reason particularly when the defendants-respondents were admittedly served with the summons and were also duly represented by their advocate in the trial court? (ii) Further question which is related to the issue is whether the defendants-respondents who had chosen not to file written statement in spite of several opportunities granted by the trial court, could be granted fresh opportunity by the High Court to file written statement and order for retrial resulting into delay and prejudice to the plaintiff-appellant from enjoying the fruits of the decree in his favour?. (iii) Yet another important question which arises herein and frequently crops up before the trial court is whether the trial court before whom the defendants failed to file written statement in spite of repeated opportunities could straightway pass a decree in favour of the plaintiff without entering into the merits of the plaintiff 's case and without directing the plaintiff to lead evidence in support of his case and appreciating any evidence or in spite of the absence of written statement, the trial court ought to try the suit critically appreciating the merits of the plaintiff 's case directing the plaintiff to adduce evidence in support of his own case examining the weight of evidence led by the plaintiff?

(3.) THE plaintiff-appellant had filed a suit for partition and separate possession of landed property measuring 13 acres 20 guntas which according to his case was a joint family property wherein the partition had not taken place and as the defendants- respondents had failed to arrange for partition and separate possession of the plaintiff 's half share in the schedule property, the plaintiff was compelled to file a suit for partition. It was also averred in the plaint that the defendants-respondents had partitioned the property amongst themselves without giving any share to the plaintiff-appellant. THE plaintiff-appellant sent a legal notice dated 24.05.1999 to the defendants-respondents which were duly served on them in response to which the defendants appeared through their advocate and sent a reply on 10.07.1999 denying the claim of the plaintiff. THE plaintiff-appellant in view of the reply of the defendants-respondents filed a suit bearing O.S.No.197/2002 before the court of Civil Judge (Sr. Divn.) at Chikmagalur for partition and separate possession. THE defendants-respondents in the said suit were served with the notice in response to which Vakalatnama was filed by their advocate. However, in spite of numerous opportunities, no written statement was filed by the defendants-respondents. Since the defendants-respondents failed to file written statement, the trial court directed the plaintiff to lead evidence. THE plaintiff filed his evidence by way of affidavit along with certain documents which were marked as Ex.P-1 to P- 10. However, the plaintiff was neither cross-examined by the defendants nor the defendants had filed the written statement as already stated hereinbefore.