SYED ISMAIL Vs. SHAMSHIA BEGUM

JUDGEMENT

(1.) THIS matter being listed for admission, the same is taken up for final disposal as respondents 1 and 2 remained unrepresented after service of notice. Heard and disposed of by this judgment.

(2.) 1st respondent filed a suit for partition and separate possession of the suit schedule properties. The defendants who entered appearance through their Advocate failed to file the written statement. The matter was thereafter set down for the evidence of the plaintiff. In the meantime, the judgment of this Court was reported in Mahanta-Swamigalu Guru v. Chairman, Grama Panchayat of Managoli, ILR (1999) Kant 1942 wherein this Court held thus :

(3.) THE impugned order does not disclose the nature of pleading placed by the plaintiff and whether there is prima facie material to grant a decree in his favour. A judgment in favour of plaintiff is not automatic. The Court has to consider the case of the plaintiff and grant a decree in his favour. The learned trial Judge has not referred to the pleadings of the plaintiff and the documents produced by him to substantiate even a prima facie case for grant of a decree in his favour. Therefore the judgment and decree in favour of the plaintiff is not automatic on failure of the opposite party to put his defence. The Court can grant a judgment in favour of the party only upon consideration of the case of the plaintiff including appreciation of pleadings and evidence. A similar question came up for consideration before the Apex Court in Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 : (AIR 1999 SC 3381 ). The Supreme Court has laid down while considering the ambit of Order 8, Rules 10 and 5 (2) and Order 12, Rule 6 and Order 6, Rules 2 and 4 and Order 7, Rule 1 (e), C. P. C. as follows :-