BRIJITHA Vs. KUTTIYAMMA

JUDGEMENT

(1.) The scope of enquiry by the appellate court in an appeal arising from a judgment and decree passed exparte is raised for a decision in this Second Appeal. Respondent sued the appellants, her mother and brother for partition and separate possession of the share claimed by her in the suit property which originally belonged to the late Joseph, her father. Appellants resisted the suit and raised a counter claim contending that respondent was sent in marriage giving her share in the family property and thereafter, appellants effected partition of the suit property as per document No. 2669 of 2006. The prayer in the counter claim is for a declaration that the said partition deed is valid and for other reliefs. The case came up for trial on 23.10.2009. That day, appellants and counsel remained absent. Appellants were set exparte. Respondent produced Exts.A1 to A3 and on the strength of those documents and the affidavit filed by her, a preliminary decree for partition was passed. The counterclaim was dismissed. Appellants filed I.A.Nos. 1189 and 1190 of 2009 to set aside the exparte decree and to condone the delay in filing the application. Those applications were dismissed. Appellants challenged the exparte judgment and decree in the Sub Court, Pala in A.S. No. 88 of 2010. There, appellants prayed for a remand of the case explaining the circumstances under which they happened to be absent in the trial court on the day of trial. Learned Sub Judge dismissed the appeal. Hence this Second Appeal urging by way of substantial questions of law whether in an appeal filed against the exparte decree, is it not in the interest of justice that as per Order XLI, Rule 23 of the Code of Civil Procedure (for short, "the Code"), the case is remanded to give the appellants an opportunity to substantiate their contentions and whether, it is legally justifiable that since the petition to set aside the exparte decree is dismissed by the trial court, the prayer for remand cannot be allowed

(2.) It is contended by the Learned Counsel that appellants had justifiable reason for their absence in the trial court on the day of trial which the first appellate court has not taken into account. It is also contended by the Learned Counsel that there is nothing which prevented the first appellate court from remanding the case to the trial court for fresh decision after giving appellants opportunity to adduce evidence.

(3.) It is not disputed that on account of absence of appellants and counsel trial court decided to hear the suit exparte. Acting upon the evidence let in by the respondent, a decree for partition was passed in her favour. The counter claim was dismissed.