22 Jan 2121
Case : Shri Nijamuddin and Ors. v. Smt. Akhtarbegum and Anr. R.F.A. No. 100309 of 2017 (PAR/O) C/W R.F.A. No. 100234 of 2018
Court : Karnataka High Court
Bench : Justice Sreenivas Harish Kumar and Justice P. N. Desai
Decided on : 22 Jan 2121
The Relevant Statutes
Order VIII Rules 5 and 10 and Order 41 Rule 27 of the Civil Procedure Code, 1908
Sections 101 and 102 of the Indian Evidence Act, 1872
Brief Facts and Procedural History
1. Appellants and Respondent (hereinafter referred to as defendant and plaintiff respectively) are brothers and sisters governed by Mohammedan law. It is stated that the propositus of Plaintiff and defendant died, leaving behind his wife and children as his legal heir
2. The defendant without the consent and knowledge of the plaintiff got mutated their names to the suit schedule properties and denied the plaintiff’s share. A Suit for partition and separate possession was filed.
3. The trial court denied the right of the defendant to cross-examine the plaintiff’s witness on the ground that the defendants did not file the written statement and the suit was decreed. Aggrieved by the order present appeal has been filed before the honourable High Court.
4. RFA NO.100309/2017 was filed assailing the judgement and decree passed dated 30.11.2016 and RFA No. 100234/2018 was filed challenging the final decree dated 23.03.2018.
The Issue of the Case
Whether the defendants who have not filed the written statement, have a right to cross-examine the plaintiff and plaintiff’s witness?
The Observations by the Court
1. The Honourable Karnataka High Court observed that on 13.07.2015 defendant 1 appeared and on 18.09.2015 defendant 2 appeared through counsel both of whose written statements were taken as not filed.
2. In the light of Order VIII Rule 5 and Order VIII Rule 10 of Civil Procedure Code, 1908 and Section 101 and Section 102 of Indian Evidence Act, 1872 it was observed that simply because the defendant has not denied the plaint averments and the evidence of the plaintiffs, the court cannot straight away accept the case of the plaintiff and decreed the suit and the court should be satisfied with right of the plaintiffs, proof of their entitlement and interference of such right by the defendant. Therefore, the adverse party is not debarred from cross-examining the plaintiff and their witness for the simple reason that a written statement is not filed and the same was held in the case of Modula India vs. Kamakshya Singh Deo (AIR 1989 SC 162).
3. Following the principles of the aforesaid Judgment, it was contended that the defendant is also entitled to make such arguments and submission on the question of law as the plaintiff may not have brought to the notice of the Court as such valuable rights are not taken away by any of the rules, law or procedure.
4. The Honourable Karnataka High Court concluded by giving defendants an opportunity to contest the suit on merit and they are allowed to produce additional evidence under Order 41 Rule 27 of Code of Civil Procedure, 1908 before the trial court. The trial Court is at liberty to accept the said documents subject to their admissibility and filing of written statement as a condition precedent for consideration of those documents.
5. The Honourable Karnataka High Court observed that the judgement of the trial court needs interference by the honourable High Court as the Trial Court Judge has committed illegality and erred by not giving reasonable opportunity to the defendants.
The Decision Held by the Court
1. RFA NO.100309/2017 and RFA NO. 100234/2018 are allowed and the decree passed are set aside. The matter is remanded to the trial court for disposal afresh on merits.
2. The appellants and defendants are permitted to contest the suit. They shall file the written statement within 30 days from the date fixed for the appearance of the parties subject to payment of the cost of Rs.10,000 to the respondent/plaintiffs. If the defendants fail to file their written statement, the trial court is at liberty to proceed further and decide the suit in accordance with the law.
3. The plaintiffs and defendants shall appear before the court on 02.03.2021 without further notice.
4. The trial court shall dispose of the matter at the earliest.