SANTA MONICA CONVENT Vs. ANANT VITHAL KUBAL

JUDGEMENT

(1.) Heard. Admit. By consent, heard forthwith. The following substantial question of law arise for consideration in the matter:"when a suit is decreed ex parte solely on the ground that the affidavit evidence of the plaintiff had gone unchallenged and without analysing such evidence, whether the appellate Court, in the appeal arising from such a decree, should while setting aside the same, remand the matter to the trial Court or proceed to decide the same finally

(2.) The judgment and decree passed by the lower appellate Court is sought to be challenged on the ground that the lower Appellate Court having found that the trial Court had decreed the suit solely on the basis of the affidavit evidence filed by the plaintiff, without even analysing such evidence in any manner and therefore being liable to be set aside, it could not have proceeded to consider the matter on merits but ought to have remanded the matter to the trial Court for being disposed of in accordance with the provisions of law. There is no serious contest by the respondents to the above proposition canvassed by the appellant.

(3.) The undisputed facts relevant for the decision are that, the appellant filed a suit for injunction and also regarding the entries in the record of rights in respect of the suit property. After service of the summons to the respondent, the suit proceeded ex parte and consequently the appellant filed the affidavit evidence in terms of the Order 18, Rule 4 of the Code of Civil Procedure. The trial Court then proceeded to dispose of the suit with the following observations in its judgment:"5. Affidavit in evidence is filed by father Victor Rodrigues, on behalf of the plaintiff and in the capacity of constituted attorney of the plaintiff. Along with the affidavit various documents such as the matriz certificate, survey records, old as well as new and the survey plan etc. are exhibited. Father Victor has solemnly affirmed the case of the plaintiff and the defendants have taken no defence. It is therefore held that the plaintiff has established its case. "