Mallappa Adiveppa Tambragundi and Others vs Neelavva and Others

B. Veerappa, J.—Defendants 1, 3 to 8 filed the above Regular First Appeal against the judgment and decree dated 13.11.2014 made in O.S. No. 84/2014 on the file of the Additional Senior Civil Judge, Gadag, decreeing the suit of the plaintiff declaring that, Irawa is entitled to get 1/6th share in the suit schedule properties and since Irawa died, her LRs i.e., the plaintiffs are together entitled to get 1/6th share of deceased Iravva in the suit schedule properties and that defendants 1 to 3 are entitled to get 1/6th share each in the suit schedule properties and also declaring that Mangalavva is entitled to get 1/6th share in the suit schedule properties and since she died her LR defendant No. 4 is entitled to get 1/6th share of Mangalawa in the suit schedule properties and further declaring that Virupakshappa is entitled to 1/6th share in the suit schedule properties and since Virupakshappa died his LRs i.e. defendants 5 to 8 together are entitled to get 1/6th share in the suit schedule properties.

The dispute is in respect of immovable properties to an extent of 19 to 20 acres of land and the one of the contention taken by the learned Counsel for defendants is that, the plaintiffs have not impleaded the other brothers i.e., Manjappa, Adiveppa and Hanamareddi as parties to the suit and therefore, the suit was not maintainable.

The respondents 1 and 2 who are the plaintiffs in the trial court filed the suit against the defendants seeking for a decree of partition and separate possession in respect of the suit schedule properties by metes and bounds, contending that one Siddavva wife of Mallappa Tambargundi was the propositus of the family and she was the owner of all the suit properties and she had a son by name Adiveppa who died in the year 1972 leaving behind his wife Devamma and Devamma also died on 3.8.2009. Adiveppa had four sons by name Mallappa, Andappa, Veerappa and Virupakshappa and three daughters by name Irawa, Mangalavva and Parvathavva. The said Irawa died on 10.10.1994 leaving behind her the plaintiffs as her LRs. Smt. Parvatawa died long back issueless. Mangalawa died in the year 1992 leaving behind her only son Hanamreddi as her LR. Virupakshappa also died on 4.2.2006 leaving behind his wife Sudha and son Maruti and two daughters by name Jyoti and Sumangala as his LRs. The original propositus Siddawa died on 9.1.1987.

It is the further case of the plaintiffs that after the death of Siddavva, her four grandsons by name Mallappa, Andappa, Veerappa and Virupakshappa got their names entered as joint owners of the suit properties excluding the daughters Iravva and Mangalavva falsely stating that, Iravva, Mangalavva and Devamma have given their consent relinquishing their right stating that their names should not be entered as LRs of deceased Siddawa. Infact, Irawa and Mangalawa have not relinquished their right in the suit properties stating and they have not given any consent to enter the names of the only grandsons. The said grandsons got entered only their names behind the back and without the knowledge of Irawa and Mangalawa. They used to say that Irawa and Mangalawa have also got share in the suit properties and used to give the share in the crops grown every year. Thus, the defendants 1, 2, 3 and deceased Virupakshappa have played fraud on their sisters and got their names entered as owners as per M.E. No. 6201. It is the further case of plaintiffs that, defendants 1 to 3 stopped giving share in the crops grown in the suit lands for the last one year. So when the plaintiffs made enquiries in the Office of Tahasildar and also the Village Accountant of Hirewaddatti village and Panchayat Secretary, they came to know that the grandsons of Siddavva had got only their names entered as joint owners of the suit properties excluding names of Iravva and Mangalavva. Therefore, the plaintiffs were constrained to file the suit for partition and separate possession of their share in the suit schedule properties.

The defendants, in response to the summons issued by the trial court, appeared through their Counsel and inspite of opportunity given they have not filed the written statement and therefore, the trial court treated the written statement of defendants as not filed and posted the matter for evidence.

In order to prove their case, the plaintiff No. 2 examined as P.W. 1 and produced documents as Ex. P.1 to P.10. The defendants have not chosen to adduce any evidence in support of their case.

On the basis of the plaint averments, the Trial Court framed the following issues:

"1. Whether the plaintiffs prove that, their mother Irawa is grand daughter of propositus Siddavva and they have inherited the suit properties through their mother Irawa?

Whether the plaintiffs further prove that, they are entitled to get 1/6th share in the suit schedule properties?

Whether the plaintiffs are entitled to the relief of partition and separate possession as sought for?

What order?"

The trial court after considering the entire material on record, has recorded a finding that the plaintiffs proved that their mother Irawa is the grand daughter of propositus Siddawa and they have inherited the suit properties through their mother Irawa and they are entitled to get 1/6th share in the suit schedule properties and accordingly, decreed the suit of the plaintiffs as prayed for.

Being aggrieved by the said judgment and decree, the present regular first appeal is filed by defendants.

I have heard the learned Counsel for the parties to the lis.

Sri. M.G. Naganun, learned Counsel for appellants has contended that, the trial court has recorded that the defendants have not filed any written statement. The said finding recorded by the trial court is without any basis. In fact the defendants filed the written statement on 13.11.2014 along with the application for seeking permission to file the written statement. The said application was erroneously rejected by the trial court only on the ground that the case was posted for judgment and thus, no opportunity was given to the appellants to adduce evidence.

Per contra, Sri Sangram S. Kulkarm, the learned Counsel for respondents 1 and 2, sought to justify the impugned judgment and decree of the trial court contending that, inspite of sufficient opportunity was given to the defendants to file their written statement, they have not availed the opportunity to defend their case by filing written statement within time. The trial court has rightly decreed the suit in accordance with law and therefore, the appeal is liable to be dismissed.

The only point that arise for consideration in the present appeal is:

"Whether the trial court is justified in passing the impugned judgment and decree without giving an opportunity to defendants to file written statement, adduce evidence and produce documents?"

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

The undisputed facts are that the plaintiffs filed the suit for partition and separate possession in respect of the suit schedule properties contending that, the plaintiffs and defendants are members of the joint family and they are entitled to a share. The trial court has recorded a finding that though sufficient opportunity was given to the defendants to file written statement they have not filed the same. Admittedly, the suit was filed by the plaintiffs on 30.04.2014 for partition and separate possession, which came to be decreed on 13.11.2014 within a span of seven months. The order sheet of the case depicts that, on 14.10.14 the trial court has recorded that written statement was not filed and posted the matter for evidence on 23.10.14. Evidence of P.W. 1 was recorded on 12.11.2014 and matter was posted for defendants'' arguments. The defendants field an application under Section 151 of Code of Civil Procedure for permission to file written statement on the next day, i.e. on 13.11.2014, along with the written statement, but unfortunately, the trial court rejected the application and proceeded to pass the impugned judgment and decree, which clearly indicates that the trial court has not given sufficient opportunity to defendants to putforth their case by filing written statement and adducing evidence, etc.

It is not in dispute that the suit filed by the plaintiffs is for partition and separate possession in respect of immovable properties. When the plaintiffs and defendants are agitating their rights/shares in the immovable properties, sufficient opportunity should be given to the parties to putforth their respective case. The procedure adopted by the trial court in rejecting the application for permission to file written statement by defendants, only on technical grounds has resulted in injustice being caused to the appellants. When substantial justice and technicality are pitted against each other, only substantial justice should prevail. In para-3 of the judgment the trial court except stating, "defendants appeared through their Counsel and inspite of providing sufficient opportunity they have not filed the written statement", nothing is forthcoming as to when the matter was posted for plaintiffs'' evidence, when the cross-examination was closed and when the opportunity was given to defendants to cross-examine plaintiffs, defendants'' evidence, etc.

The order sheet produced by the learned Counsel for appellants discloses that, on 14.10.2014, the trial court has recorded, ''the written statement taken as not filed''. Then the matter was posted for plaintiffs evidence on 23.10.2014 on that day the plaintiffs and defendants remained absent. The matter was posted for evidence on 6.11.2014, on that day both the plaintiffs and defendants remained absent. Again the matter was posted for plaintiffs'' evidence on 12.11.2014 on that day, the plaintiffs present and defendants remained absent. One Shankarawwa examined as P.W. 1 and exhibits P.1 to P.10 were marked and evidence of plaintiffs was taken as closed. For defendants'' evidence it was recorded as ''no representation, hence evidence on defendant''s side taken as closed, for arguments and to hear arguments, judgment by 13.11.2014''.

On 13.11.2014 it was recorded as plaintiff absent, Defendant No. 1 present, Filed application under Section 151 of Code of Civil Procedure seeking permission to file written statement along with filed written statement on behalf of defendant No. 1. Memo for adoption of defendants 2, 3, 4, 5 and 6 to 8 was also filed. The said application was rejected on the ground that the matter was posted for judgment and judgment was ready and once the matter has been heard and posted for judgment nothing is required to be done by the court except to pronounce the judgment in view of the dictum of this Court in the case of Rabiya Bi Kassim M. Vs. The Country Wide Consumer Financial Service Ltd., . Accordingly, application was rejected.

Thus, the entire order sheet referred to above clearly depicts that on two occasions the plaintiffs remained absent and the trial court has given opportunity on three occasions to lead evidence to the plaintiffs. On 12.11.2014 the plaintiff No. 2 was examined as P.W. 1 and marked documents Ex. P.1 to P.10. On that date no reference was made to defendants evidence. It was taken as evidence closed without giving any further date for defendants evidence. Arguments were heard on the same day and matter was posted for judgment, which clearly indicates that recording of evidence of P.W. 1 and closing evidence of defendants and arguments of plaintiffs without giving opportunity to defendants to adduce evidence was made in a hurried manner. Recording of evidence and arguments of parties was closed on 12.11.2014 itself. Though the defendants filed application along with the written statement on the next day itself, the said application was not considered and proceeded to pass the judgment only on the ground that judgment was reserved and nothing to be heard. The impugned judgment and decree passed by the trial court clearly indicates that the learned trial judge was rushed to dispose of the matter on merits in a hurried manner, without giving an opportunity to defendants to putforth their case, evidence and address their arguments, which is nothing but justice hurried and buried. Such a procedure adopted by the trial court is impermissible in law since, the rights of parties in respect of immovable properties are involved. In view of the aforesaid reasons, the point/issue raised is answered in negative holding that the trial court is not justified in passing the impugned judgment and decree.

While considering the provisions of Section 151 of Code of Civil Procedure, the Hon''ble Supreme Court in the case of K.K. Velusamy Vs. N. Palanisamy, , has held at paras 12 and 13 of its judgment as under:

"12. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.

The learned counsel for respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments."

In the present case, the order sheet maintained by the trial court clearly indicates that the trial court in a hurried manner concluded the evidence of plaintiffs and defendants, and the arguments on the same day i.e. on 12.11.2014, without giving opportunity to defendants to lead their evidence and address arguments, which clearly indicates that the trial court has proceeded to pass the impugned judgment only based on technicality, which is nothing but to abuse the process of the court. The trial court has lost sight of the fact that the present case was for partition between the members of the joint family properties, where sufficient opportunity should have been given to the defendants to file written statement, adduce evidence and produce material documents and to putforth their case. The procedure adopted by the learned Judge while passing the impugned judgment and decree is contrary to the provisions of Order 17 Rules 1 and 2 of Code of Civil Procedure. The provisions of Order 17 Rules 1 and 2 of CPC reads thus:

"1. Court may grant time and adjourn hearing.--(1) The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the Suit for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.

(2) Costs of adjournment--in every such case the court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fits:

Provided that--

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary,

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party,

(c) the fact that the pleader of a party is engaged in another court, shall not be a ground for adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time,

(e) where a witness is present in court but a party or his pleader is not present or the party or his pleader, though present in court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination in chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.

Procedure if parties fail to appear on day fixed.--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other orders as it thinks fit.

Explanation : Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion proceed with the case as if such party were present."

Thus, the provisions of Order XVII Rules 1 and 2 of Code of Civil Procedure makes it very clear that, the courts for the reasons recorded in writing adjournment shall not be granted for more than 3 times to a party during the hearing of the suit and shall make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fits. The impugned judgment and decree passed by the trial court without giving sufficient opportunity to defendants to putforth their case cannot be sustained in view of the law laid down by the Hon''ble Supreme Court in the case of K.K. Velusamy v. N. Palanisamy cited supra.

Therefore, in view of the peculiar facts and circumstances of the present case, the impugned judgment and decree passed by the trial court is erroneous, contrary to law. Accordingly, the regular first appeal is allowed. The judgment and decree dated 13.11.2014 made in O.S. No. 84/2014 on the file of the learned Additional Senior Civil Judge, Gadag, is set aside and the matter is remanded to the trial court for fresh consideration in accordance with law.

Both the parties are directed to appear before the trial court on 2.11.2015.