Karnataka High Court
G.H. Chengalarayappa And Ors. vs G. Chengalarayappa on 11 September, 1997
Equivalent citations: ILR1998KAR4031, 1998 A I H C 3679, (1999) 1 CIVLJ 583 (1998) 4 CURCC 453, (1998) 4 CURCC 453
ORDER VIII RULE 10 - and Section 100 - Defendant remained exparte. In a money suit the Trial Court disbelieved the evidence of the plaintiff about his being in possession of valid money lenders Licence, dismissed the suit on the ground that the Money Lenders Licence is not produced without giving any opportunity to produce. The first Appellate Court confirmed the decree of the Trial Court after rejecting the prayer of the plaintiff to permit him to produce the money Lenders Licence HELD - Dismissal of the suit when the defendant remains ex-parte is illegal unless the suit itself is barred under some law. The facts are simple. The suit was filed for recovery of money by the plaintiff. The defendant remained exparte. The plaintiff examined himself and marked documents. If really the trial Court has got any doubt regarding the possession of money lenders licence as required under a particular money lender Act, it should have given an opportunity to the plaintiff to produce the licence, especially when the plaintiff asserted that he had a licence. Without giving an opportunity and in a very hurried and hapazard fashion, the Trial Court has chosen to dismiss the suit. The less said about the Appellate Court is better. Before confirming the decree of the dismissal of the suit by the Trial Court, the Appellate Court did not even permit the appellant to file the licence which he claims to be in possession on the date of transaction in question. At least the appellate Court ought to have allowed him to produce such licence and then if the licence is not in the order, the suit could be dismissed. But, this procedure has not been followed by the Appellate Court. (B) CIVIL PROCEDURE CODE, 1908 (Central Act No. 5 of 1908) Order XIV Rule 1 - Framing of Issues the defendant remains ex-parte - Court framing an issue for itself and rejecting the claim of the plaintiff is illegal. When a plaintiff comes to the Court and the defendant remains exparte, unless it is seen that the claim made by the plaintiff is barred by any law, the Court have no right to doubt the factual aspects, in the absence of any opposition to it. Here is a case where the question whether the plaintiff had a licence on the date of transaction is one of the fact. Unless, the defendant claims it and puts as an issue, it is deemed to have been admitted by him that the plaintiff had a licence on that day. The matters like this depends upon the particular fact to be alleged and denial being made by the defendant. The Court cannot frame a issue for itself and reject the claim of the plaintiff. Unfortunately, the plaintiff is being driven from piller to post and post to pillar from eleven years for recovery of sum of Rs. 4000/- and odd. JUDGMENT T.N. Vallinayagam, J.
1. The plaintiff is the appellant. This is again one of the unfortunate way of disposing of cases by the subordinate Courts despite non-filing written statement on behalf of the defendant.
2. The facts are simple. The suit was filed for recovery of money by the plaintiff. The defendant remained exparte. The plaintiff examined himself and marked documents. If really the trial Court has got any doubt regarding the possession of money lenders licence as required under a particular money lender Act, it should have given an opportunity to the plaintiff to produce the licence, especially when the plaintiff asserted that he had a licence. Without giving an opportunity and in a very hurried and hapazard fashion, the Trial Court has chosen to dismiss the suit.
3. The less said about the Appellate Court is better. Before confirming the decree of the dismissal of the suit by the Trial Court, the Appellate Court did not even permit the appellant to file the licence which he claims to be in possession on the date of transaction in question. At least the appellate Court ought to have allowed him to produce such licence and then if the licence is not in the order, the suit could be dismissed. But, this procedure has not been followed by the Appellate Court.
4. When a plaintiff comes to the Court and the defendant remains exparte, unless it is seen that the claim made by the plaintiff is barred by any law, the Court have no right to doubt the factual aspects, in the absence of any opposition to it. Here is a case where the question whether the plaintiff had a licence on the date of transaction is one of the fact. Unless, the defendant claims it and puts as an issue, it is deemed to have been admitted by him that the plaintiff had a licence on that day. The matters like this depends upon the particular fact to be alleged and denial being made by the defendant. The Court cannot frame a issue for itself and reject the claim of the plaintiff. Unfortunately, the plaintiff is being driven from piller to post and post to pillar from eleven years for recovery of sum of Rs. 4000/- and odd.
5. This is not what the Courts are meant for. The Courts should also feel that they have basic duty of giving relief to the parties who have come with the proper face. In this view, Second Appeal is allowed, setting aside the judgment and decree of the Courts below. Suit is decreed as prayed for with costs.