Patna High Court
Balmiki Singh And Ors. vs Smt. Lalpari Devi And Ors. on 28 January, 1980
Equivalent citations: AIR1981PAT161, 1981(29)BLJR599, AIR 1981 PATNA 161, 1981 BLJR 599, 1981 BBCJ 208, (1981) BLJ 555, (1981) PAT LJR 244
JUDGMENT Ch. Sia Saran Sinha, J.
1. This appeal by some of the defendants is directed against the judgment and decree of the learned Additional Subordinate Judge, Gaya, decreeing the plaintiffs' suit for partition.
2. One Rashdhari Singh had three sons, Jugal Singh, Basudeo Singh and Ramkeshwar Singh. He had also a brother named Kharagdhari Singh. Jugal Singh had two sons Deoki Singh and Ramnandan Singh (defendant No. 2), Deoki Singh had a son named Balmiki Singh, who is defendant No. 1, defendant No. 3 is the widowed mother of defendant No. 1. Mt. Dhaneshwar Kuer (defendant No. 4) is the wife of defendant No. 2, Basudeo Singh (since dead) died leaving behind one Mt. Dipa Kuer, his widow, and Lalpari Devi, wife of his predeceased son. Ramkeshwar Singh undisputedly died issueless in a state of jointness with his other two brothers named above.
3. Lalpari Devi, the sole plaintiff respondent of this appeal after the death of Dipa Kuer during the pendency of the suit, along with her mother-in-law, Dipa Kuer, instituted the instant suit for partition of her eight annas interest in what was described to be the joint family properties of all the defendants 5 to 11, being the de-
pendants of Kharagdhari Singh. The allegation in the plaint, inter alia, was that the deed of gift dated the 16th Sept., 1963, said to have been executed by Dipa Kuer in favour of defendant No. 1, was a fabricated and sham document and, in fact, it was never executed as such by Dipa Kuer. Undisputedly, this deed of gift embraced eight annas interest in the properties sought to be partitioned in this suit. The plaintiffs sought for partition by ignoring this deed of gift.
4. Defendant No. 1 contested the suit, alleging inter alia, that the deed of gift mentioned above was a genuine and valid document and Dipa Kuer having parted with her interest in the suit properties under the deed, the suit instituted by her for partition must fail. Defendants 2, 3 and 4 did not enter appearance. Defendants 5 to 11 appeared and filed a written statement but they subsequently left the scene.
5. On 6-7-1971 Dipa Kuer was examined on commission. One witness on behalf of defendant No. 1 was also examined as a special witness. Thereafter some controversy appears to have arisen between the learned advocates for the plaintiff and defendant No. I touching the question of onus of proof i.e. the right to lead evidence first. It appears that this controversy was settled between the parties on the advocates' conceding that the suit be decided on the pleading of the parties, themselves, obviously meaning the plaint filed by the plaintiffs and the written statement filed on behalf of the defendant No. 1, even ignoring the evidence already adduced. Accordingly, the Subordinate Judge delivered the judgment in which, as stated above, he decreed the suit on contest against defendant No. 1 and ex parte, against other defendants. Defendants 1 to 4 have taken the matter to this court in this First appeal.
6. Mr. Lakshman Sharan Sinha, learned counsel for the appellants, attacking the judgment of the court below as perverse and illegal, submitted that the same be set aside and the case be sent back to the trial Court on remand for decision in accordance with law. This contention was refuted by learned counsel for respondent first party.
7. One of the grounds of attack by Mr. Sinha was that there being no agreement between the plaintiff and the defendants, except defendant No. 1, about the disposal of the suit on the basis of the pleadings of the parties, the court below erred seriously in law in deciding the suit ex parte against the other defendants, even without prima facie evidence to support the ex parte claim. Defendants 2 to 4 had not filed any written statement at all. The other defendants did file a written statement but they were not parties to the agreement, referred to above. Obviously, therefore the so-called agreement entered into between the advocates of the plaintiff and defendant No. 1 could not be binding on the other defendants and this necessitated the plaintiff to adduce even prima facie evidence to support her claim against the other defendants.
8. Learned counsel for the respondent 1st party sought to take advantage of the provisions of Rule 5 (2) of Order VIII of the Civil P. C. (hereinafter referred to as 'the Code'), which was newly added by the Code of Civil Procedure (Amendment) Act, 1976, which provides that where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the court may, in its discretion, require any such fact to be proved. The instant suit having been decided on the 23rd Aug., 1971, this provision was not then on the statute book. The judgment also does not profess that the trial court decided the suit ex parte against the above mentioned defendants on the basis of the facts contained in the plaint. For these reasons the action of the trial court in decreeing the suit ex parte against the defendant (except defendant No. 1) in the facts and circumstances of this case, cannot be supported in law and it has to be set aside.
9. The other contention raised by Mr. Lakshman Sharan Sinha was that the judgment of the trial court proceeded on the assumption that there was admission on the part of defendant No. 1 in the written statement filed by him about Dipa Kuer being a Pardanasin lady. It is on this assumption that the trial Court threw the entire burden of proof on defendant No. 1 and holding that he had failed to discharge that onus, he held the deed of gift to be a sharn and ineffective transaction, and, therefore, decreed the suit as prayed for by the plaintiff.
10. In the very first sentences of paras. 24 and 25 of the written statement filed by defendant No. 1, which are by way of the reply to the assertions made in paras. 8 and 9 of the plaint, it was stated in unequivocal terms that the statements made in paras. 8 and 9 of the plaint are false. It is true that in the subsequent sentences of paras. 24 and 25 there is no specific denial about Dipa Kuer being a Par-danasin lady but construing the entire statements in paras. 24 and 25 of the written statement it would be wrong to assume that there was admission on the part of defendant No. 1 about Dipa Kuer being a Pardanasin lady. Learned counsel for the appellants relied in this connection on a decision of this Court in Smb. Andhi Kuer v. Rajeshwar Singh (AIR 1972 Pat 325) where it was held, inter alia, that the term 'Pardanasin lady' is not a term of art. It has special legal significance and if, therefore, the plaintiffs alleged that the lady was a Pardanasin lady and the defendants refuted it by saying that the said allegation was | false, it would amount, by implication, to denial of the assertion that the lady was a Pardanasin lady. It is true that in that case some evidence was adduced by the plaintiff but here in the instant suit the very first sentences of paras. 24 and 25 of the written statement describe the allegations of paras 8 and 9 of the plaint to be false. This wrong assumption on the part of the trial court, therefore, led to the perversity of its finding and deciding the case on such a finding has, therefore, led to obvious illegality and it may not be possible to support the judgment of the trial Court even against defendant No. 1 and the same has to be set aside as against him as well.
11. This takes us to the consideration of another question, namely, the propriety or otherwise of the remand of the case. Whatever might have been the position earlier about the power of this Court to remand a suit after the amendment of the Civil P. C., the new amended provision in the shape of Rule 23A of Order XII lays down that where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. The contention raised by learned counsel for respondent 1st party in this respect simply was that this new amended provision did not extend the ambit of the powers of remand of the Appellate Court beyond what it was prior to the amendment. This contention is without any substance and it has to be negatived.
12. The question is whether it is possible to do justice to the parties without remand of the suit. The reply, in my opinion, will be in the negative. Learned advocates of the plaintiff and defendant No. 1 might have their own notion about the construction of the pleadings of their clients and this might have actuated them to reach the above agreement, which is somewhat unusual in nature but what should be uppermost in mind is the doing of justice to the parties of this suit which involves valuable properties. In my opinion, the facts and circumstances of the case necessitate a remand of the suit for the ends of justice.
13. The result is that the appeal succeeds, the judgment and the decree of the trial Court are set aside and the suit is sent back to the trial Court for decision in accordance with law, keeping in view the provisions of Order VIII, Rule 5 of the Code and Section 58 of the Evidence Act, both, of which lay down that the Court may in its discretion require any facts, even if admitted, to be proved otherwise than by such admission. In the peculiar facts and circumstances of this case there shall be no order for costs and the parties shall bear their own costs so far incurred by them.
Hari Lal Agrawal, J.
14. While agreeing that the suit should be remanded for a fresh decision I would like to point out one more illegality that vitiates the judgment and the decree of the trial Court. Defendants 2, 3 and 4 had not appeared in the suit and, therefore, there was no written statement on their behalf. Therefore, any agreement reached between the plaintiff and the appearing defendant was certainly not binding on them. Thus, the defendants could not be said to be bound by the doctrine of non-traverse either. As the recent amendment of Order VIII, Rule 5 was not on the statute book, the trial Court, at best could have decreed the suit against the contesting defendant in absence of any evidence to bind the defendants, particularly resting the burden of proof on the I non-appearing defendants. As the decree is one and inseparable, applying the principle as contained in Order IX, Rule 13 of the Code, as it has got to be set aside against the non-appearing defendants, it is bound to be set aside against all the defendants.