JUDGMENT
V.G. Sabhahit, J.
1. This appeal by defendants 1, 3, 4 and 7 is directed against the judgment and decree dated 19-2-2003 passed by the Court of District Judge, Chlkmagalur, in R.A. No. 1’7/2001 dismissing the appeal and confirming the judgment and decree passed by the Court of Civil Judge (Senior Division), Chikmagalur, in O.S. No. 11 /1997 dated 29-6-2001 wherein the suit of the plaintiffs has been decreed for partition and separate possession of 1/4th share in the suit schedule properties and for mesne profits from the date of suit to the date of delivery of possession.
2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows :
The plaintiffs filed suit O.S. No. 11/1997 seeking for partition and separate possession of their “4th share in the suit schedule properties and for mesne profits and costs. It is averred that Muddalinge Gowda was the propositus and he has four sons by name Mallegowda (dead), Ninge Gowda, Putta Gowda and Byre Gowda. Said Putte Gowda died issueless and Malle Gowda has 2 sons by name Basave Gowda i.e. defendant No. 1 and one Sidde Gowda. Ninge Gowda got one son by name Chikke Gowda i.e. husband of defendant No. 6. Defendant No. 1-Basave Gowda has got 3 sons, who are defendants 2, 3 and 4 and plaintiff No. 1 is the wife of Byre Gowda and son of Muddalinge Gowda. Said Byre Gowda died leaving behind his wife plaintiff No. 1- and plaintiff No. 2 by name Gowramma, The properties shown in the schedule are the joint family properties of said Muddalinga Gowda and his legal heirs i.e. the plaintiffs and the defendants. Schedule properties are the joint family and ancestral properties of the plaintiffs and the defendants and the plaintiffs are entitled to 1/4th share together in the schedule properties. However, in family arrangement, certain properties were allotted to the first plaintiff but no partition and separate possession of schedule properties is made to the first plaintiff by the defendants and wherefore the suit.
On behalf of the defendants, defendants 1 and 3 appeared through their counsel on 4-6-1997 and defendants 2, 5 and 6 appeared through their counsel on 16-7-1997, Defendant No. 7 appeared through another counsel. Defendant No. 5 died and his legal representatives were brought on record, Notice was issued to the legal representatives of deceased 5(a), (b) and (c), 5(b and c) remained ex parte and 5(a) was represented by the counsel. However, none of the defendants filed any written statement and the matter was posted for the evidence of the plaintiff and the second plaintiff was examined as P.W. 1 and got marked Exs. P-1 to P-17 and accepting the uncontroverted evidence of P.W. 1 and the documents produced by the plaintiff, the trial Court, decreed the suit, by judgment dated 29-6-2001 by declaring that the plaintiffs arc entitled to 1/4th share and for mesne profits from the date of suit to the date of delivery of possession.
3. Being aggrieved by the said judgment and decree, defendants 1, 3, 4 and 7 preferred R.A. No. 17/2001 on the file of the learned District Judge, Chikmagalur and the first appellate Court by judgment dated 19-2-2003 held that defendants did not file any written statement despite the opportunity given and negatived the contention of the appellant that they could not file the written statement, as they could not obtain the documents and their counsel was hospitalised. Accordingly, confirmed the Judgment and decree passed by the trial Court by dismissing the appeal.
4. Being aggrieved by the said judgment and decree, this second appeal is filed by defendants 1, 3, 4 and 7.
5. The appeal was admitted on 13-6-2005 for consideration of the following substantial question of law :
Whether the judgment and decree passed by the Courts below decreeing the suit of the plaintiff, only on the ground that no written statement was filed, without considering the contents of the documents produced by the plaintiff and without reference to Exs. P1 to P-15, wherein there is an entry regarding prior partition, is perverse and arbitrary and contrary to law?
6. The learned Counsel appearing for the appellants submitted that the appellants could not file written statement before the trial Court, as they could not obtain the documents and the counsel had been hospitalised. The learned Counsel further submitted that having regard to the documents produced by the plaintiffs before the trial Court, there is an entry regarding prior partition and wherefore both the Courts below have not considered the evidence of P.W. 1 and the documents produced by the first plaintiff as per Exs. P-1 to P-17 and has proceeded to decree the suit only on the ground that the defendants did not file any written statement as the evidence remained uncontroverted. He further submitted that even if the written statement is not filed, the duty is cast upon the Courts to consider the material on record and pass the judgment in accordance with law and when there is inherent and improbability in the case of the plaintiff, the Court cannot proceed to decree the suit without considering the said inherent and improbability of the material on record. In support of his contention, he has relied upon the decision of the Hon’ble Supreme Court in the case of Balraj Taneja v. Suni Madan wherein the Supreme Court has held that when written statement, is not filed and when there is serious dispute between the parties, the fact has to be proved by the plaintiff by producing the material on record and suit cannot be decreed merely on the ground of failure of defendant in filing the written statement and the Courts should pass order as required under Section 2(9) and under Order 40, Rule 4(2) of the Code of Civil Procedure and has observed as follows :
29. The Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the 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, Code of Civil Procedure. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned, in the plaint. It is a matter of 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 judgment against the defendant who has not filed the written statement. But if the plaintiff 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 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 such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8.
7. I have considered the contention of the learned Counsel with reference to the material on record in the light of the principles as laid down by the Supreme Court in the aforesaid case.
8. I have been taken through the judgment and the evidence of P.W. 1 and the oral and documentary evidence produced by her as per Exs. P1 to P-17.
9. It is clear from the perusal of the material on record that the trial Court has proceeded to pass the Judgment merely by stating the facts on the ground that the defendants have not filed the written statement and when there is no contest, the parties to the suit are not being sued on any question of law or facts regarding the suit claim, hence, the plaintiffs are entitled to decree as prayed for and has not referred to the evidence of P.W. 1 or the documents produced as Exs. P-1 to P-17 and it is clear from the averment made in the plaint that there was family arrangement and the contents in Ex, P-1 shows that there was partition as per the mutation entry 1 /96-97 and there is also entry regarding partition in the extract of Record of Right produced by the plaintiffs. Wherefore, it is clear that the trial Court has riot considered the case of the plaintiff on merits and has simply proceeded on the basis that defendants, though had sufficient opportunity to file written statement and represented by counsel, did not file written statement and wherefore the trial Court was not justified in decreeing the suit of the plaintiff and the first appellate Court has not referred to the, evidence of P.W. 1 or the documents produced by the plaintiff Exs. P-1 to P-17 and wherefore it is clear that the judgment and decree passed by the Courts below is contrary to the decision of the Supreme Court in Balraj Taneja’s case (supra). Accordingly, I answer the substantial question of law in the affirmative. However, the matter is liable to be remitted to the trial Court for fresh disposal in accordance with law and in view of the fact that the matter is now being remitted to the trial Court, it is appropriate that an opportunity should be given to the appellants to file written statement on payment of cost. The appellants are permitted to file written statement before the trial Court within three months from today on payment of cost of Rs. 3.000/- (Rupees Three Thousand only) payable to the plaintiff and the cost shall be deposited before the trial Court. If the written statement is not filed within three months from today or cost is not deposited, the appellants shall forfeit the right to file written statement and the trial Court shall dispose of the suit in accordance with law. Accordingly, I pass the following order :
10. The Regular Second Appeal is allowed. The judgment and decree passed by the Court of District Judge, Chikmagalur, in R.A. No. 17/2001 dated 19-2-2003 confirming the judgment and decree passed by the Court of Civil Judge (Senior Division), Chikmagalur, in O.S, No. 11 /1997 dated 29-6-2001 is set aside. Suit O.S. No. 11/1997 is remitted to the Court of Civil Judge (Senior Division), Chikmagalur, for fresh disposal in accordance with law. The appellants shall be permitted to file written statement, if, filed within three months from today on payment of cost of Rs. 3,000/- (Rupees Three Thousand only). If the written statement is not filed within three months from today or the cost is not deposited, the appellants shall forfeit the right to file written statement and the trial Court shall dispose the suit expeditiously in accordance with law. Transmit a copy of this order with the lower Court record to the trial Court forthwith. There shall be no order as to cost in this appeal.