C.N. RAMAPPA GOWDAversusC.C. CHANDREGOWDA (DEAD) BY LRS. & ANR.

                       [2012] 5 S.C.R. 453


                   C.N. RAMAPPA GOWDA                                A
                                 v.
     C.C. CHANDREGOWDA (DEAD) BY LRS. & ANR.
             (Civil Appeal No. 3710 of 2012)

                        APRIL 23, 2012
                                                                     B
      [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

        Code of Civil Procedure, 1908 - Or. 8, r. 10 - Non-filing
  of written statement - Duty of Court - Held: In a case where
  written statement has not been filed, the Court should be a C
 little more cautious in proceeding under Or.8 r.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 D
 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 admission by the defendant,
 the Court can conveniently pass a judgement and decree
 against the defendant who has not filed the written statement E
 - But, if the plaint itself indicates that there are disputed
 questions of fact involved in the case arising from the plaint
 itself giving rise to two versions, it would not be safe for the
 Court to record an ex-parte judgement without directing the
 plaintiff to prove the facts so as to settle the factual controversy F
 - In the instant case, the trial court decreed the suit without
 assigning any reason how the plaintiff was entitled for half
 share in the property - The same was absolutely cryptic in
 nature wherein the trial court did not critically examine as to
 how the affidavit filed by the plaintiff in support of his plea of G
jointness of the famlJy was proved - 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 -

                               453                                  H
    454     SUPREME COURT REPORTS                  [2012] 5 S.C.R.

A The trial court 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 High Court was legally justified in setting aside
  the judgement and decree of the trial court and allowing the
B 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 - However, since the
  disposal of the suit for partition has now been dragged into a
  protracted retrial of the suit, it is legally just and appropriate
C to balance the scales of equity and Fairplay by awarding a sum
  of rupees twenty five thousand by way of a token cost to the
  Plaintiff/Appel/ant to be paid by the Defendant/Respondent
   expeditiously as the impugned order of the High court
  directing retrial shall be given effect to only thereafter.

D      The appellant had filed a suit for partition and
  separate possession of landed property which according
  to his case was a joint family property. The defendants-
  respondents were served with the notice in response to
  which Vakalatnama was filed by their advocate. However,
E in spite of numerous opportunities, no written statement
  was filed by the defendants-respondents and
  subsequently, the trial court directed the plaintiff.
  appellant to lead evidence. The plaintiff filed his evidence
  by way of affidavit along with certain documents. On the
F basis of the pleadings and the ex-parte evidence
  adduced by the plaintiff in support of his case, the trial
  court decreed the suit in favour of the plaintiff-appellant
  and held him entitled to a decree of partition to the extent
  of half share in the landed property. The defendants-
G respondents thereafter filed appeal before the High Court.
  The High Court set aside the judgment and decree passed
  by the trial court and remanded the matter to the trial
  court for its retrial and consideration of the matter afresh.
  The defendants-respondents were also granted liberty to
H file written statement and produce the documents and
 C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 455
            (DEAD) BY LRS. & ANR.
the trial court was directed to dispose of the suit on        A
merits. The decree of partition which the plaintiff-
appellant had already got executed in his favour was
made subject to the result of retrial of the suit.

      The questions which required determination in the 8
 present appeal were: 1) 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 C
 when the defendants-respondents were admittedly
 served with the summons and were also duly
 represented by their advocate in the trial court (ii)
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 D
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 and (iii) Whether the trial court
before whom the defendants failed to file written E
statement in spite of repeated opportunities could
straightway pass a decree in favour of the plaintiff without
entering into the merits of the plaintiffs case and without
directing the plaintiff to lead evidence in support of his
case and appreciating any evidence or in spite of the F
absence of written statement, the trial court ought to try
the suit critically appreciating the merits of the plaintiffs
case directing the plaintiff to adduce evidence in support
of his own case examining the weight of evidence led by
the plaintiff.                                                 G

    Dismissing the appeal, the Court

     HELD: 1.1. The plaintiff-appellant has sought to prove
his case that the suit property was a joint family property
only on the strength of affidavit which he had filed and      H
    456    SUPREME COURT REPORTS               (2012] 5 S.C.R.


A has failed to lead any oral or documentary evidence to
  establish that the property was joint in nature. Even if the
  case of the plaintiff-appellant was correct, it was of vital
  importance for the trial court to scrutinize the plaintiffs
  case by directing him to lead some documentary
B evidence worthy of credence that the property sought to
  be partitioned was joint in nature. But the trial court
  seems to have relied upon the case of the plaintiff merely
  placing reliance on the affidavit filed by the plaintiff which
  was fit to be tested on at least a shred of some
c documentary evidence even if it were by way of an ex-
  parte assertion. Reliance placed on the affidavit in a
  blindfold manner by the trial court merely on the ground
  that the 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
0
  nothing short of a decree which is penal in nature. [Para
  13] [466-F-H; 467-A-B]

         1.2. The effect of non-filing of the written statement
    and proceeding to try the suit is clearly to expedite the
E   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. In a case where written statement has
    not been filed, the Court should be a little more cautious
F   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
G   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 admission by the defendant, the Court can
    conveniently pass a judgement and decree against the
H   defendant who has not filed the written statement. But, if
 C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 457
            (DEAD) BY LRS. & ANR.
the plaint itself indicates that there are disputed            A
 questions of fact involved in the case arising from the
plaint itself giving rise to two versions, it would not be
safe for the Court to record an ex-parte judgement
without directing the plaintiff to prove the facts so as to
settle the factual controversy. In that event, the ex-parte    B
judgement although may appear to have decided the suit
expeditiously, it ultimately gives rise to several layers of
appeal after appeal which ultimately compounds the
delay in finally disposing of the suit giving rise to
multiplicity of proceeding which hardly promotes the           c
cause of speedy trial. However, if the Court is clearly of
the view that the plaintiff's case even without any
evidence is prima facie unimpeachable and the
defendant's approach is clearly a dilatory tactic to delay
the passing of a decree, it would be justified in              D
appropriate cases to pass even an uncontested decree.
What would be the nature of such a case ultimately will
have to be left to the wisdom and just exercise of
discretion by the trial court who is seized of the trial of
the suit. [Para 14] [467-C-H; 468-A-B]
                                                               E
     Ba/raj Taneja And Another. v. Suni/ Madan And Another,
(1999) 8 SCC 396: 1999 (2) Suppl. SCR 258; Kai/ash vs.
Nanhku And Ors. (2005) 4 SCC 480: 2005 (3) SCR 289 -
relied on.
                                                               F
     2. In the instant case, the trial court has decreed the
suit without assigning any reason how the plaintiff is
entitled for half share in the property. The same is
absolutely cryptic in nature wherein the trial court has not
critically examined as to how the affidavit filed by the       G
plaintiff in support of his plea of jointness of the family
was proved on relying upon Ex.P-1 to P-10 without even
discussing the nature of the document indicating that the
suit property was a joint property. Ex.P-1 to P-10 are the
preliminary records viz. Atlas, Tipni Book, R.R. Pakka
                                                               H
   458      SUPREME COURT REPORTS               [2012] 5 S.C.R.


A Book, Settlement Akarband, sale deeds etc. The trial
  court although relied upon these documents, it has not
  elaborated critically as to why these documents have
  been believed without indicating as to how it proves the
  plea that the property always remained joint in nature and
B had never been partitioned between the parties. Even if
  the trial court relied upon these documents to infer that
  the property was joint in nature, it failed to record any
  reason as to whether the property was never partitioned
  among the coparceners. It is a well acknowledged legal
c 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 clearly adopted an erroneous approach by
  inferring that merely because there was no evidence of
0
  denial or rebuttal, the plaintiffs 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
E jointness of the suit property on the basis of which a
  decree of partition could be passed in his favour. [Para
  15) [468-C-H; 469-A]

      3. The High Court was legally justified in setting
F 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.
  However, this Court is conscious of the fact that the
G Plaintiff/Appellant for no fault on his part has been forced
  to entangle himself in the appeal before the High Court
  as Respondent giving rise to an appeal before this Court,
  although the Defendant/Respondent had leisurely failed
  \a file written statement in spite of numerous
H opportunities to file the same and also had failed to cross-
C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 459
           (DEAD) BY LRS. & ANR.
examine the plaintiff witnesses, but once the decree for          A
partition of half share was passed in favour of the
Plaintiff/Appellant, the Defendant/Respondent promptly
challenged the same by filing an appeal before the High
Court. Since the disposal of the suit for partition has now
been dragged into a protracted retrial of the suit, it is         B
legally just and appropriate to balance the scales of
equity and fairplay by awarding a sum of rupees twenty
five thousand by way of a token cost to the Plaintiff/
Appellant to be paid by the Defendant/Respondent
expeditiously as the impugned order of the High court             c
directing retrial shall be given effect to only thereafter.
[Para 16] (469-B-F]

                      Case Law Reference
    1999 (2) Suppl. SCR 258 relied on             Para 10         D
    2005 (3) SCR 289              relied on       Para 11

    CIVIL APPEAL JURISDICTION: Civil Appeal No. 3710 of
2012.
                                                                  E
    From the Judgment & Order dated 05.10.2010 of the High
Court of Karnataka at Bangalore in R.F.A. No. 597 of 2004.

      R.S. Hegde, Chandra Prakash, Ashwani Garg, P.P. Singh
for the Appellant.
                                                                  F
    T.V. Ratnam for the Respondents.

    The Judgment of the Court was delivered by

     GYAN SUDHA MISRA, J. 1. The impugned order dated
05.10.201 O passed by the Division Bench of the High Court of     G
Karnataka at Bangalore in R. F.A. No. 597 /2004 is under
challenge in this appeal after grant of special leave at the
instance of the plaintiff-appellant by which the High Court has
set aside the judgment and decree of partition passed in favour
of the plaintiff-appellant by the Civil Judge (Sr. Divn.)         H
    460      SUPREME COURT REPORTS                   [2012] 5 S.C.R.

A   Chikmagalur dated 28.01.2004 and the appeal was remanded
    to the trial court in order to consider the matter afresh. The
    defendants-respondents herein have also been granted liberty
    to file written statement and produce the documents within four
    weeks from the date of the order passed by the High Court and
s   the trial court was directed to dispose of the suit on merits in
    accordance with law within a period of six months. However,
    the decree of partition which the plaintiff-appellant already got
    executed in his favour was made subject to the result of retrial
    of the suit.
c        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
D   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
E   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
F   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 opportunities could straightway pass a
G decree in favour of the plaintiff without entering into the merits
  of the plaintiffs case and without directing the plaintiff to lead
  evidence in support of his case and appreciating any evidence
  or in spite of the absence of written statement, the trial court
  ought to try the suit critically appreciating the merits of the
H
 C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 461
 (DEAD) BY LRS. & ANR. [GYAN SUDHA MISRA, J.]
plaintiff's case directing the plaintiff to adduce evidence in           A
support of his own case examining the weight of evidence led
by the plaintiff?

      3. Before we appreciate the aforesaid questions involved
in this appeal, it appears essential to record some of the salient       B
features and facts of the case giving rise to this appeal after
grant of leave.

      4. The plaintiff-appellant had filed a suit for partition and
separate possession of landed property measuring 13 acres
20 guntas which according to his case was a joint family                 C
property wherein the partition had not taken place and as the
defendants-respondents had failed to arrange for partition and
separate possession of the plaintiffs half share in the schedule
property, the plaintiff was compelled to file a suit for partition. It
was also averred in the plaint that the defendants-respondents           D
had partitioned the property amongst themselves without giving
any share to the plaintiff-appellant. The plaintiff-appellant sent
a legal notice dated 24.05.1999 to the defendants-respondents
which were duly served on them in response to which the
defendants appeared through their advocate and sent a reply              E
on 10.07.1999 denying the claim of the plaintiff. The plaintiff-
appellant in view of the reply of the defendants-respondents
filed a suit bearing O.S.No.197/2002 before the court of Civil
Judge (Sr. Divn.) at Chikmagalur for partition and separate
possession. The defendants-respondents in the said suit were             F
served with the notice in response to which Vakalatnama was
filed by their advocate. However, in spite of numerous
opportunities, no written statement was filed by the defendants-
respondents. Since the defendants-respondents failed to file
written statement, the trial court directed the plaintiff to lead        G
evidence. The plaintiff filed his evidence by way of affidavit
along with certain documents which were marked as Ex.P-1 to
P-10. However, the plaintiff was neither cross-examined by the
defendants nor the defendants had filed the written statement
as already stated hereinbefore.
                                                                         H
    462       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A       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
B 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
c 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
D 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 trial court in spite of service of summons. There was also
E no prayer incorporated seeking permission to file the written
  statement . It was also stated therein that the plaintiff had
  already got the preliminary decree of partition executed and
  came in possession of half share of the schedule property.

F      7. The High Court by its interim order dated 30.05.2005
  had also refused to grant stay of execution of the decree in
  favour of the plaintiff-appellant and directed that the trial court
  may conclude the final decree proceedings. However, it' was
  observed that if the preliminary decree is given effect to and
G the property is divided and allotted in the final decree
  proceedings, the same shall be subject to the result of the
  appeal. Thereafter during pendency of the appeal before the
  High Court, the defendant No.1 died whose legal
  representatives were brought on record.

H         8. The appeaJwas finally heard by the High Court and the
 C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 463
 (DEAD) BY LRS. & ANR. [GYAN SUDHA MISRA, J.]

judgment and order in appeal was delivered on 05.10.2010 by            A
the High Court setting aside the judgment and decree passed
by the trial court and the matter was remanded to the trial court
for its retrial and consideration of the matter afresh as already
stated hereinbefore. The plaintiff-appellant felt aggrieved with
the impugned order of the High Court and hence filed the               B
special leave petition before this Court wherein leave was
granted and the matter was heard at some length.

      9. Learned counsel for the plaintiff-appellant has reiterated
the contentions urged before the High Court and submitted that         C
the defendants-respondents ought to be held to have forfeited
their rights to file their written statement and adduce evidence
as the defendants were duly served with the summons and were
also represented by their advocate. In spite of this the
defendants chose not to file written statement although several        D
opportunities were granted and they had also not stated any
reason for not filing written statement. It was further urged that
even in appeal the defendants have not disputed the factum of
the suit property being joint family property and, therefore, in
absence of any evidence to the contrary, the High Court ought
not to have interfered with the judgment and decree passed by          E
the trial court. It was submitted that the defendants had slept over
the matter and committed grave latches when they failed to file
written statement for which no reason at all has been assigned
by the defendants and, therefore, the High Court committed
error by granting undue indulgence and permitting the                  F
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    G
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
plaintiffs witness and without appreciation of evidence and,           H
    464       SUPREME COURT REPORTS                    [2012] 5 S.C.R.


A 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
  plaintiffs claim even in the absence of written statement which
B 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, it was further supplemented that a duty
  is cast upon the court to examine the plaintiff and satisfy itself
c as to the correctness of the averments of the pleadings and the
  trial court ought not to have adopted the plaint without even
  cross-examination of the plaintiff. In support of his submission,
  learned counsel has placed reliance on the ratio of the decision
  of this Court in Ba/raj Taneja And Another. vs. Sunil Madan
D And Another reported in (1999) 8 SCC 396 wherein this Court
  has dealt with a situation which has arisen in the present appeal.
  In the matter of Ba/raj Taneja (supra), the Court while
  considering a circumstance wherein written statement was not
  filed by the defendant, held that the court is duty bound to
E adjudicate even in the absence of complete pleadings or in the
  presence of pleadings of only one party. Learned counsel in
  this context has specifically placed reliance on the observations
  of this Court which is of great relevance and value wherein it
  was held as follows:-

F         "As pointed out earlier, the court has not to act blindly upon
          the admission of a fact made by the defendant in his written
          statement nor should the court proceed to pass judgment
          blindly merely because a written statement has not been
          filed by the defendant traversing the facts set out by the
G         plaintiff in the plaint filed in the court. In a case, specially
          where a written statement has not been filed by the
          defendant, the court should be a little cautious in
          proceeding under Order 8 Rule 10 CPC. Before passing
          the judgment against the defendant it must see to it that
H         even if the facts set out in the plaint are treated to have
C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 465
(DEAD) BY LRS. & ANR. [GYAN SUDHA MISRA, J.]
     been admitted, a judgment could possibly be passed in               A
     favour of the plaintiff without requiring him to prove any fact
     mentioned in the plaint. It is a matter of the court's
     satisfaction and, therefore, only on being satisfied that
     there is no fact which need be proved on account of
     deemed admission, the court can conveniently pass a                 B
     judgment against the defendant who has not filed the
     written statement. But if the plaint itself indicates that there
     are disputed questions of fact involved in the case
     regarding which two different versions are set out in the
     plaint itself, it would not be safe for the court to pass a         c
     judgment without requiring the plaintiff to prove the facts
     so as to settle the factual controversy. Such a case would
     be covered by the 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          D
     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                      E
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            F
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                  G
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 held in
Kai/ash vs. Nanhku And Ors. reported in (2005) 4 SCC 480,
as follows:-                                                             H
    466       SUPREME COURT REPORTS                   [2012] 5 S.C.R.


A         "The purpose of providing the time schedule for filing the
          written statement under Order 8 Rule 1 CPC is to expedite
          and not to scuttle the hearing. The provision spells out a
          disability on the defendant. It does not impose an embargo
          on the power of the court to extend the time. Though the
B         language of the proviso to Rule 1 Order 8 CPC is couched
          in negative form, it does not specify any penal
          consequences flowing from the non-compliance. The
          provision being in the domain of the procedural law, it has
          to be held directory and not mandatory. The power of the
          court to extend time for filing the written statement beyond
c
          the time schedule provided by Order 8 Rule 1 CPC is not
          completely taken away."

        12. It was finally submitted that the plaintiff-appellant who
  claims to be in possession of his share in the plaint schedule
D property would not be prejudiced in any manner by the order
  of remand and hence the High Court was perfectly justified in
  remanding the matter for its trial by granting permission to the
  defendants-respondents to file written statement which need not
  be interfered with by this Court under its extra-ordinary
E jurisdiction under Article 136 of the Constitution.

         13. In the light of the ratio decidendi of the cases cited
  hereinabove, when we examined the judgement and order of
  the trial court granting a decree of partition in favour of the
F plaintiff-appellant, we could notice that the plaintiff-appellant has
  sought to prove his case that the suit property was a joint family
  property only on the strength of affidavit which he had filed and
  has failed to lead any oral or documentary evidence to establish
  that the property was joint in nature. Even if the case of the
G plaintiff-appellant was correct, it was of vital importance for the
  trial court to scrutinize the plaintiffs case by directing him to lead
  some documentary evidence worthy of credence that the
  property sought to be partitioned was joint in nature. But the
  trial court seems to have relied upon the case of the plaintiff
  merely placing reliance on the affidavit filed by the plaintiff which
H
 C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 467
 (DEAD) BY LRS. & ANR. [GYAN SUDHA MISRA, J.]

was fit to be tested on at least a shred of some documentary             A
evidence even if it were by way of an ex-parte assertion.
Reliance placed on the affidavit in a blindfold manner by the
trial court merely on the ground that the defendant had failed
to file written statement would amount to punitive treatment of
the suit and the resultant decree would amount to decree which           B
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          C
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               D
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            E
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
admission by the defendant, the Court can conveniently pass
a judgement and decree against the defendant who has not
filed the written statement. But, if the plaint itself indicates that    F
there are disputed questions of fact involved in the case arising
from the plaint itself giving rise to two versions, it would not be
safe for the Court to record an ex-parte judgement without
directing the plaintiff to prove the facts so as to settle the factual
controversy. In that event, the ex-parte judgement although may          G
appear to have decided the suit expeditiously, it ultimately gives
rise to several layers of appeal after appeal which ultimately
compounds the delay in finally disposing of the suit giving rise
to multiplicity of proceeding which hardly promotes the cause
of speedy trial. However, if the Court is clearly of the view that       H
    468     SUPREME COURT REPORTS                   [2012] 5 S.C.R.


A the plaintiffs case even without any evidence is prima facie
  unimpeachable and the defendant's approach is clearly a
  dilatory tactic to delay the passing of a decree, it would be
  justified in appropriate cases to pass even an uncontested
  decree. What would be the nature of such a case ultimately will
B have to be left to the wisdom and just exercise of discretion by
  the trial court who is seized of the trial of the suit.

          15. When we examined the instant matter on the anvil of
    what has been stated above, we have noticed that the trial court
    has decreed the suit without assigning any reason how the
C   plaintiff is entitled for half share in the property. The same is
    absolutely cryptic in nature wherein the trial court has not
    critically examined as to how the affidavit filed by the plaintiff
    in support of his plea of jointness of the family was proved on
    relying upon Ex.P-1 to P-10 without even discussing the nature
D   of the document indicating that the suit property was a joint
    property. Ex.P-1 to P-10 are the preliminary records viz. Atlas,
    Tipni Book, R.R. Pakka Book, Settlement Akarband, sale
    deeds etc. The trial court although relied upon these
    documents, it has not elaborated critically as to why these
E   documents have been believed without indicating as to how it
    proves the plea that the property always remained joint in nature
    and had never been partitioned between the parties. Even if
    the trial court relied upon these documents to infer that the
    property was joint in nature, it failed to record any reason as to
F   whether the property was 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
G   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 plaintiffs case could
    be held to have been proved. The trial court, therefore, while
    accepting the plea of the plaintiff-appellant ought to have
H   recorded reasons even if it were based on ex-parte evidence
C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA 469
(DEAD) BY LRS. & ANR. [GYAN SUDHA MISRA, J.]
that the plaintiff had succeeded in proving the jointness of the      A
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
                                                                      8
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. The appeal consequently stands dismissed.
However, we are conscious of the fact that the Plaintiff/             C
Appellant for no fault on his part has been forced to entangle
himself in the appeal before the High Court as Respondent
giving rise to an appeal before this Court, although the
Defendant/Respondent had leisurely failed to file written
statement in spite of numerous opportunities to file the same         D
and also had failed to cross-examine the plaintiff witnesses, but
once the decree for partition of half share was passed in favour
of the Plaintiff/Appellant, the DefendanURespondent promptly
challenged the same by filing an appeal before the High Court.
Since the disposal of the suit for partition has now been             E
dragged into a protracted retrial of the suit, we consider it
legally just and appropriate to balance the scales of equity and
fairplay by awarding a sum of rupees twenty five thousand by
way of a token cost to the Plaintiff/Appellant to be paid by the
Defendant /Respondent expeditiously as the impugned order             F
of the High court directing retrial shall be given effect to only
thereafter.

    17. The appeal thus stands dismissed subject to the
payment of cost by the DefendanURespondent to the Plaintiff/          G
Appellant.

B.8.8.                                       Appeal dismissed.


                                                                      H