Suresha Devi vs Bhagwan Das and Another

Mrs. Poonam Srivastava, J.—Heard learned counsel for the parties.

The suit for cancellation of Will and permanent injunction was instituted by the plaintiff/respondent Bhagwan Das and another against the defendant/appellant. The defendant was issued summons and since service could not be effected personally, notice was affixed on the door of the defendant. Besides notice was sent by registered post as well as by publication. The defendant did not appear in the Court. In response to service, the trial Court held service to be sufficient and passed an order to proceed ex parte on 3.5.2005.

The plaintiffs adduced certain documents, list 8 Ga2 consisting of copy of Will, Khatauni paper No.8 Ga2/1 regarding Khata No.15, paper No.8Ga 2/5 electoral list and extract of pariwar register. P.W. 1 Sunil Kumar and P.W.2 Bhagwan Das submitted their statement by means of an affidavit 16 Ka1 and 17 Ka1, no other oral or documentary evidence was adduced, as a consequence evidence was closed and counsel for the plaintiff/respondents was heard. The suit was dismissed on 26.11.2005. Civil Appeal No.103 of 2005 was preferred by the plaintiffs. The appeal was allowed and suit was decreed vide judgment and decree dated 26.4.2007.

Substantial questions of law raised in the instant appeal are:

Whether the appellate Court can cancel the Will, which was executed by Smt. Keshera Devi in favour of appellant/defendant and was also fully proved by the attesting witnesses?

Whether the appellate Court can cancel the Will, while the same has been proved in revenue Court and mutation was also made in favour of the defendant/appellant?

Whether the appellate Court can decree the suit of the plaintiffs/respondents ex parte?

Whether framing point of determination by the trial Court and lower appellate Court under Rule and under Order 41, Rule 31 CPC, the judgment of the lower appellate Court is sustainable under law as it is mandatory provisions of CPC for lower appellate Court before deciding the case?

Whether the lower appellate Court can reverse findings of the trial Court, without any plausible reason?

Whether findings of the Courts below are based on presumption and surmises?

Whether findings of the lower appellate Court are based on misreading oral as well as documentary evidence available on record, are perverse and are not sustainable under law?

Whether, Will can be cancelled on the ground that it has not been executed in favour of real relatives?

However, without going into any substantial questions of law, on perusal of the two judgment, it transpires that the trial Court has failed to frame issues as provided under Order 14 CPC. It has only mentioned allegations in the plaint and nature of evidence brought on record by the plaintiffs and decided to proceed ex parte without framing any issue and dismissed the plaintiff''s suit.

The judgment in the appeal given by the lower appellate Court is also without framing any point of determination. The suit was decreed ex parte by the appellate Court only for the reason that the defendant/appellant has not filed any counter affidavit to rebut an affidavit filed on behalf of the plaintiffs and therefore, the lower appellate Court allowed the appeal ex parte recording a finding that the plaintiffs have been able to prove their case. Entries in favour of the appellant have been expunged on the basis of findings recorded by the lower appellate Court, which is impugned in the instant appeal.

Perusal of the impugned judgment shows that it is in complete violation of Order 41 Rule 31 CPC. No point for determination has been framed by the lower appellate Court and, therefore, there is no decision on the questions, which are to be determined in the instant appeal. No reason has been assigned but for the fact that no counter affidavit was filed. I am of the view that the judgment of the lower appellate Court decreeing suit of the plaintiffs ex parte is unsustainable in law. The mandatory provisions of the Code are completely bypassed. The judgment and decree dated 26.4.2007 passed by the Additional District Judge, Court No.8, Faizabad in Civil Appeal No.103 of 2005 as well as judgment dated 26.11.2005 in Original Suit No.84 of 2003 Bhagwan Das and Others v. Smt. Suresha Devi, are set aside. The matter is remanded to the Civil Judge (Junior Division) Haveli, Faizabad for afresh decision after framing issues and recording evidence in accordance with the provisions of Code of Civil Procedure.

With the aforesaid direction, the instant second appeal is disposed of.

(Appeal allowed)