Full Judgment Text
1 100418 sa 476.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Second Appeal No.476 of 2015
Martand s/o Namdeorao Gotmare,
Aged about 53 years, Occ.Nil,
R/o.D30/4, Ravi Nagar, Nagpur. …. Appellant.
Versus
1] Dilip Namdeorao Gotmare,
Aged about 40 years, Occ. Nil,
R/o. C/o. Pande, behind Corporation School,
Pension Nagar, Police Line Takli, Nagpur.
( Legal heirs of resp. no.1 ) (Amended as per Court's
order dated 06062017)
1a] Smt. Vandana Dilip Gotmare,
Aged Major, Occ. Household,
1b] Mrunal Dilip Gotmare,
Aged Major,
1c] Mrudul Dilip Gotmare,
Aged Major.
All R/o.Mahila Aghadi Adhyaksha (President),
BJP Prabhag No.23, KGN Society, Makardokda,
near Kalimata Mandir, Nagpur.
2] Smt. Suman w/o Deorao Yeole,
Aged about 50 years, Occ. Nil,
R/o. near Kamal Talkies Chowk, Panchpaoli, Nagpur.
3] Smt. Sindhu w/o Ramesh Khedkar,
Aged about 38 years, Occ. Nil,
R/o.Deoli (Sawangi), Tah. Hingana, District Nagpur.
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4] Smt. Nanubai wd/o Namdeorao Gotmare,
Aged about 65 years, Occ.Nil,
R/o.Satnavri School, Pension Nagar Police Line Takli,
Tah. and Distt. Nagpur.
5] Chaturbhuj Surajmal Sarda,
Aged about Adult, Occ.Nil,
R/o.Arbindo Liquiaries, Dharaskar Road, Itwari, Nagpur.
( Correct address of resp. no.5 )
Chaturbhuj Surajmal Sarda, (Amended as per Court's
Aged about Adult, Occ.Nil, Order dated 27062017)
R/o.Arbindo Liquor Pvt. Ltd., Dharaskar Galli,
565, Itwari, Nagpur.
( Correct address of resp. no.5 )
Chaturbhuj Surajmal Sarda, (Amended as per Court's
C/o.Rohit Chaturbhuj Sarda, Order dated 30102017)
Director of Natural Aqua Fura Pvt Ltd, Loya Building,
Ground Floor, Opposite to SBI, Kranti Chowk,
Aurangabad (M.S.) 431 001. …. Respondents.
Shri A. S. Deshpande, Adv for appellant.
Shri S. Zia Qazi, Adv for resp. nos. 1a to 1c, 3 and 4.
Coram : Manish Pitale, J.
Dated : 10th April, 2018.
ORAL JUDGMENT
By this appeal, the appellant (original plaintiff) is challenging
the judgment and order dated 29042015 passed by the Court of District
Judge10, Nagpur (Appellate Court), whereby the appeal filed by the
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appellant herein was dismissed and the judgment and order passed by the
nd
Court of 2 Joint Civil Judge, Senior Division, Nagpur (Trial Court) stood
confirmed.
2. The appellant filed Special Civil Suit No.1021 of 1996, being a
suit for declaration, damages and permanent injunction, claiming that he
had become the owner of suit property i.e. agricultural field survey no.83/1
situated at village Satnawari, PH No.52, Taluka Nagpur (Rural), District
Nagpur, admeasuring 4.06 acres. It was his case that the said suit
property was allotted to him in a Partition Deed dated 23111986. It was
claimed that under the said document, Namdeorao Gotmare, the father of
appellant, had allotted the said property to the appellant in exclusion of
other members of the family i.e. defendant nos. 1 to 4 (respondent nos.1
to 4 herein). The appellant placed a photocopy of the said Partition Deed
on record and it was claimed in his evidence that the original of the said
document was with respondent no.1. The defendants failed to file written
statement in the proceedings before the trial Court. It is so recorded by
the trial Court in paragraph 6 of its judgment that defendant nos. 1 to 4
were proceeded without written statement and that defendant no.5, being a
person to whom the other defendants were allegedly intending to sell the
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suit property, did not even appear before the Court. Therefore, suit was
proceeded ex parte against defendant no.5.
3. By its judgment and order dated 20082007, the trial Court
dismissed the suit filed by the appellant. The trial Court found that the
claims made by the appellant were based on the aforesaid Partition Deed
or family arrangement, but, it was not produced before the Court. It was
also noted by the trial Court that although the alleged witnesses to the said
Partition Deed were produced before the Court, unless the said document
was brought on record, the evidence of such witnesses was of no avail.
It is a matter of record that the suit property has been recorded in the
name of all the heirs of said Namdeorao Gotmare, including the
appellant. The trial Court found that the appellant had failed to prove his
case and therefore the suit was dismissed.
4. Aggrieved by the same, the appellant filed Regular Civil
Appeal No.442 of 2012 before the appellate Court. By the impugned
judgment and order, the appeal has been dismissed and it has been found
that the appellant failed to establish that he was the exclusive owner of the
suit property. The appellate Court treated the aforesaid document i.e.
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Partition Deed as Will and it found that in the absence of said document
being brought on record, the contentions of the appellant could not be
accepted. It was specifically argued on behalf of the appellant before the
appellate Court that in the absence of written statement filed by the
contesting respondents (defendants), the trial Court ought to have held that
the appellant had been able to prove his contentions on the basis of
admissions and that a decree ought to have followed. The appellate Court
rejected the contentions and dismissed the appeal, thereby confirming the
judgment and decree passed by the trial Court.
5. Aggrieved by the impugned judgment and order, the appellant
has filed this appeal. On 13012017, this Court issued notice for final
disposal of this appeal on the following substantial question of law :
“Whether the plaintiff is entitled to a decree on
admission in absence of document of title produced on
record?”
6. Shri A.S. Deshpande, learned Counsel appearing on behalf of
the appellant submitted that since the respondents had failed to file
written statement in the trial Court, on a conjoint reading of Order 8 Rule 10
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and Order 12 Rule 6 of the Code of Civil Procedure, 1908 [CPC], the trial
Court ought to have passed a decree on admissions in favour of the
appellant. It was contended that absence of written statement on behalf of
the respondents (defendants) amounts to admission of the claims made in
the plaint by the appellant and that therefore, decree ought to have been
passed by the trial Court in his favour. The learned Counsel for the
appellant placed on record the judgments of the Hon'ble Supreme Court in
the case of Karam Kapahi and others vs M/s Lal Chand Public
, reported at ,
Charitable Trust and another AIR 2010 SC 2077 Balraj
Taneja and another vs Sunil Madan and another , reported at
AIR 1999 SC 3381 and judgment of this Court in the case of National
Insurance Co. Ltd., Mumbai vs Dayanand Margeppa Pedde and
others , reported at 2010 (2) Mh.L.J. 931 .
7. On the other hand, Shri S.Z. Qazi, learned Counsel appearing
on behalf of the respondents, submitted that although the respondents
(defendants) had failed to file written statement before the trial Court, the
appellant (plaintiff) was required to prove his case to the hilt. It was
submitted that failure to file written statement on behalf of the respondents
would not absolve the appellant from proving his case before the Court by
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adducing cogent evidence in support of his claim. It was submitted that
when the basic document i.e. the alleged Partition Deed was never
produced by the appellant before the trial Court, there was no error
committed by the Courts below in dismissing the suit filed by the appellant.
It was submitted that although the appellant claimed in his evidence that
the original of the Partition Deed was with respondent no.1, no notice to
produce the original documents was issued by the appellant and he did
not file any application before the Court for direction to respondent no.1 to
produce such document in the proceedings before the trial Court. It was
submitted that the appellant had failed to prove his contentions by placing
on record cogent evidence and that the Courts below were justified in
dismissing the suit filed by the appellant. The plaintiff relied upon the
judgments of the Hon'ble Supreme Court in the case of Shantilal
Gulabchand Mutha vs Tata Engineering and Locomotive Company
, reported at and
Limited and another (2013) 4 SCC 396 Maya Devi vs
Lalta Prasad , reported at (2015) 5 SCC 588 .
8. Having heard the learned Counsel for the parties and upon
perusal of record it needs to be examined as to whether the appellant is
justified in claiming that due to failure on the part of the respondents to file
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written statement before the trial Court, it was necessary to pass a decree
in his favour on the basis of pleadings in the plaint. The learned Counsel
for the appellant has placed reliance on Order 8 Rule 10 and Order 12 Rule
6 of CPC. The aforesaid provisions read as follows :
“ Order VIII Rule 10 of C.P.C .
[ .
10 Procedure when party fails to present written
statement called for by Court. — Where any party from
whom a written statement is required under rule 1 or rule 9
fails to present the same within the time permitted or fixed by
the Court, as the case may be, the Court shall pronounce
judgment against him, or make such order in relation to the
suit as it thinks fit and on the pronouncement of such
judgment a decree shall be drawn up.]”
Order XII Rule 6 of C.P.C
[ 6 . Judgment on admissions. — (1) Where admissions of
fact have been made either in the pleading or otherwise,
whether orally or in writing, the Court may at any stage of the
suit, either on the application of any party or of its own
motion and without waiting for the determination of any other
question between the parties, make such order or give such
judgment as it may think fit, having regard to such
admissions.
(2) Whenever a judgment is pronounced under sub
rule(1) a decree shall be drawn upon in accordance with the
judgment and the decree shall bear the date on which the
judgment was pronounced.]“
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9. According to the learned Counsel appearing for the appellant
a conjoint reading of the aforesaid provisions would show that failure on
the part of the respondents to file written statement would require the Court
to pronounce judgment against them and that the respondents (defendants)
would be deemed to have admitted the claims made by the appellant in the
plaint. It was contended that the burden on the appellant (plaintiff) would
stand reduced to that extent, in the absence of written statement and any
specific denial on behalf of the respondents.
10. A perusal of the aforesaid provisions and an analysis of the
same based on the law laid down by the Hon'ble Supreme Court in that
context, would show that when the defendants fails to file written
statement and there is no specific denial on record in terms of pleadings,
the Court is cast with a greater responsibility and onerous obligation to
satisfy itself that the plaintiff has been able to prove his case to the hilt. In
this context, the reliance placed by learned Counsel for the respondents on
the judgment of the Hon'ble Supreme Court in the case of Maya Devi
(supra) is appropriate. The relevant portion of the said judgment reads as
follows :
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10 100418 sa 476.15.odt
“41. The absence of the defendant does not
absolve the trial court from fully satisfying itself of the
factual and legal veracity of the Plaintiff’s claim; nay,
this feature of the litigation casts a greater
responsibility and onerous obligation on the trial court
as well as the executing court to be fully satisfied that
the claim has been proved and substantiated to the hilt
by the Plaintiff. Reference to Shantilal Gulabchand
Mutha vs T ELCO Ltd , (2013) 4 SCC 396, will be
sufficient. The failure to file a Written Statement,
thereby bringing Order 8 Rule 10 CPC into operation,
or the factum of the defendant having been set ex
parte, does not invite a punishment in the form of an
automatic decree. Both under Order 8 Rule 10 CPC
and on the invocation of Order 9 CPC, the Court is
nevertheless dutybound to diligently ensure that the
plaint stands proved and the prayers therein are worthy
of being granted.”
11. Even in the judgment relied by the learned Counsel for the
appellant in the case of Balraj Taneja and another (supra), the Hon'ble
Supreme Court has held as follows :
“29. 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 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, CPC. Before passing the judgment against the
defendant it must see to it that even if the facts set out in
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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 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 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 subrule (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.”
12. Applying the said position of law to the facts of the present
case would show that the appellant has relied heavily on a document
termed as Partition Deed. Even in the absence of written statement on
behalf of the respondents specifically denying the claims made by the
appellant, the burden was on the appellant to prove the aforesaid
document in terms of the requirements of law, in order to successfully
claim the relief of declaration and other ancillary reliefs sought in the suit
filed by him. The Courts below have found that the appellant failed to
produce the original Partition Deed and that only a photocopy of the
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same was placed on record. It was stated in the evidence of the appellant
that the original of the said document was with respondent no.1, but, no
efforts were taken by the appellant in terms of law to ensure that the
original document was brought before the Court.
13. In the absence of the most crucial piece of evidence in support
of the claims made by the appellant being brought on record, merely
producing alleged witnesses to the said document before the Court was of
no avail. In fact, the trial Court specifically records this aspect while
rejecting the claims made by the appellant.
14. In the absence of written statement on behalf of defendants
and deemed admissions by them, as claimed by the appellant, the law laid
down by the Hon'ble Supreme Court places greater responsibility on the
trial Court to ensure that the appellant has been able to prove his case to
the hilt. In the present case, on the basis of material on record it is evident
that the appellant, being the plaintiff, had miserably failed to produce
cogent evidence on record to prove his case, even in the absence of
written statement filed on behalf of the respondents. The view taken by the
trial Court in this context cannot be found faulted with and the appellate
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Court has also confirmed the same by correctly applying the position of
law.
15. Therefore, it is clear that the substantial question of law framed
by this Court deserves to be answered in favour of the respondents and
against the appellant and it is held that even if the respondents failed to
file written statement in the present case, it was for the appellant to have
proved his case to the hilt by producing cogent evidence. In the absence
of aforesaid Partition Deed being placed before the Court despite the fact
that it was the very basis of the claims of the appellant, the Courts below
cannot be said to have committed an error in holding against the appellant.
In this light, it is evident that the reliance placed on behalf of the appellant
on judgment of the Hon'ble Supreme Court in Karam Kapahi (supra) and
of this Court in National Insurance Co. Ltd. (supra), is misplaced. Hence,
this appeal is dismissed with no order as to costs.
JUDGE
Deshmukh
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