MALLAYYA Vs. TOTAYYA

JUDGEMENT

(1.) 1. This is a defendant's appeal against the judgment and decree dated 30-6-1988 in Original Suit No. 22 of 1987 on the file of the Civil Judge, Gadag.

(2.) The undisputed facts, which are set out in the course of the judgment under appeal may be stated briefly and they are as follows. In the course of this judgment, we will refer to the parties by the ranks assigned to them in the trial Court. The plaintiff filed a suit for declaration of title and possession of suit land. The suit was registered and defendant was served with notices. He entered appearance through Counsel on 7-8-1987. On 7-9-1987, 9-10-1987, 9-11-1987 and 4-12-1987 the suit was adjourned for the purpose of filing written statement. But on 4-12-1987 Counsel for defendant retired from the case and a new Counsel appeared for the defendant and sought further time to file the written statement. The case was adjourned to 22-1-1988. On 22-1-1988, no written statement was filed and that fact was recorded in the order sheet. Thereafterwards, the case was adjourned for evidence. On 12-2-1988, 26-2-1988, 17-6-1988 and 29-6-1988 presumably the case was adjourned for the evidence of the plaintiff. However, on the last mentioned date, the Counsel for the plaintiff appears to have induced the Court to proceed to pass judgment and decree in favour of the plaintiff in terms of Order VIII Rule 10 CPC as no written statement had been filed. Arguments were heard and the suit was posted for judgment on 13-6-1988. It was before judgment and after it was reserved for judgment, the defendant's Counsel filed an application under Order IX Rule 9 read with S. 151 of the Code of Civil Procedure to set aside the order "W.S. not filed" recorded on 22-1-1988. But that application came to be dismissed as the plaintiff's Counsel placed reliance on the ruling of the Supreme Court in the case of Arjunasingh v. Mahendra Kumar (AIR. 1964 S.C. 993). Therefore, the judgment was pronounced decreeing the suit on 30-6-1988.

(3.) Mr. Adi, learned Counsel for the appellant, before us contends that nothing in the language by Rule 10 of Order VIII is suggestive that a suit may be decreed without proof of the plaint allegations. He has relied upon certain decisions of the Supreme Court to support that contention. Therefore, the only question that falls for our determination in this appeal is whether the trial Court was correct in proceeding to pass the judgment and decree without proof of plaint allegations i.e., without recording any evidence for the pleintiff, but acting on the documents filed along with the plaint, without proof of those documents, without those documents being received in evidence in accordance with the procedure laid down for receipt of evidence by Civil Courts during or in the course of trial ?