TaxTMI 
TaxTMI 
2012 (4) TMI 847
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....iff-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 opp....
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....ereinbefore. 5. Since the defendants neither filed written statement nor cross-examined the plaintiff, the learned Judge vide judgment and order dated 28.01.2004 on the basis of the pleadings and the ex-parte evidence adduced by the plaintiff in support of his case, decreed the suit in favour of the plaintiff-appellant and was thus held entitled to a decree of partition to the extent of half share in the landed property. The learned trial judge further held that the defendants although were served with the notice and were represented by their counsel, they did not choose to file written statement denying the case of the plaintiff and hence there was no reason to disbelieve the case of the plaintiff. Accordingly, the suit was decreed directing that the plaintiff-appellant shall be entitled to half share in the property. 6. The defendants-respondents herein thereafter challenged the judgment and decree before the High Court by filing an appeal bearing RFA No. 597/2004 wherein the plaintiff-appellant herein submitted that the defendants-respondents have not stated any valid or justifiable reason for non-filing of the written statement nor took part in the proceedings before the tria....
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....all has been assigned by the defendants and, therefore, the High Court committed error by granting undue indulgence and permitting the defendants to file written statement and documents when their right to file the same stood forfeited. 10. Contesting the appeal, it was urged on behalf of the defendants-respondents that the suit of the plaintiff-appellant has been decreed only on the basis of the averments in the plaint which was legally impermissible for even if the suit has been decided in the absence of written statement, the trial court ought not to have decreed the suit without cross-examination of the plaintiff's witness and without appreciation of evidence and, therefore, it has rightly been set aside by the High Court. Elaborating on this part of his submission, it was contended that the trial court was bound to independently examine the case of the plaintiff and satisfy itself as to the correctness of the plaintiff's claim even in the absence of written statement which evidently has not been done. In these circumstances, the High Court has rightly exercised its discretion and allowed the defendants-respondents to file their written statement. To reinforce his submission, ....
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....expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8". 11. Explaining the default on the part of the defendant for not filing written statement it has been stated that late C.C. Chandregowda represented by his Lr. C.C. Harish was suffering from severe illness due to jaundice. This fact was pleaded before the High Court at the stage of appeal and the High Court in the light of the same has rightly remanded the matter to the trial court to re-consider it afresh. Learned counsel for the defendants-respondents also submitted that the remand order of the High Court will not serve the interest of justice if the defendants-respondents are not allowed to place written statement of the defendants-respondents on record and the remand order will not serve any useful purpose if the suit is restored and ordered for retrial without permitting the defendants-respondents to file written statement. Learned counsel has contended that the filing of written statement is governed by procedural law and this Hon'ble Court has....
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.... defendant had failed to file written statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which would be nothing short of a decree which is penal in nature. 14. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgement, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgement and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed....
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....s never partitioned among the coparceners. It is a well acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the past even if there was no written statement to the contrary or any evidence of rebuttal. The trial court in our view clearly adopted an erroneous approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiff's case could be held to have been proved. The trial court, therefore, while accepting the plea of the plaintiff-appellant ought to have recorded reasons even if it were based on ex-parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour. 16. As a consequence of the aforesaid analysis and the reasons recorded hereinabove, we are of the view that the High Court was legally justified in setting aside the judgement and decree of the trial court and allowing the appeal to the limited extent of remanding the matter to the trial court for a de-novo trial after permitting the defendant-respondent to file the written statement. Th....