Civil Suit No. 69 of 2007 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.435 OF 2018 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 18.08.2018 and 28.08.2018 respectively passed by the learned Additional District Judge, Kendrapara in R.F.A. No.18 of 2012 confirming the ex-parte judgment and decree dated 08.11.2011 and 16.11.2011 passed by the learned Senior Civil Judge, Kendrapara in Civil Suit No.69 of 2007. ---- Tulkia Mandal & Others .... Appellants -versus- Radharani Mandal & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ============================================== For Appellant For Respondents - -
Legal Reasoning
Mr. Maheswar Mohanty Advocate ----------------- CORAM: MR. JUSTICE D. DASH Date of Hearing: 06.12.2023 :: Date of Judgment: 20.12.2023 D.Dash,J. The Appellants, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree 18.08.2018 and 28.08.2018 respectively passed by the learned Additional District Judge, Kendrapara in R.F.A. No.18 of 2012. RSA No.435 of 2018 Page 1 of 6 {{ 2 }} The Respondent No.1 as the Plaintiff had filed the suit i.e. C.S. No.69 of 2007 for partition of the properties described in the plaint. These Appellants despite notice, did not contest the suit and accordingly they were set ex-parte; the suit was preliminarily decreed by judgment dated 08.11.2011 followed by the drawal of the preliminary decree. These Appellants being the Defendant Nos. 1 to 7 in the suit then filed the Appeal under section-96 of the Code which has been dismissed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiff’s case is that the suit land in the Schedule-‘A’ & ‘B’ are the self-acquired property of Kalipada Mandal, who is the common ancestor of the Plaintiff and Defendants, who had died leaving behind three sons namely, Manohar, Tejendra and Dinabandhu. After death of Kalipada, his three sons lived in joint mess and estate. However, subsequently, due to enlargement of the family and difference of opinion as well as dissention, three brothers started living separately and possessed some lands each for their convenience. It was stated that RSA No.435 of 2018 Page 2 of 6 {{ 3 }} the eldest son of Kalipada namely, Manohar without the knowledge and consent of other co-sharers, illegally sold away one (1) acre of land out of the suit land to one Manu Das, a stranger to the family. The Plaintiff, therefore, when came to know about the said fact, asked the Defendants to go for a partition; that being not paid any heed to, the suit came to be filed. 4. The Defendants had not contested the suit. They even had not filed the written statement despite several opportunities being provided to them by the Trial Court upon their request. It was for the first time, they raised before the First Appellate Court that the Trial Court without verifying the documents has arrived at a conclusion that the suit land is the self-acquired property of Kalipada Mandal and accordingly, the Plaintiff has got 1/3rd share in respect of the suit land. It at this stage be stated that they also filed certain documents before the First Appellate Court without however filing any application under Order-41 Rule-27 of the Code seeking admission of those documents as additional evidence. 4. Mr. Maheswar Mohanty, learned Counsel for the Appellants submitted that those documents which these Defendants had filed before the First Appellate Court if would be taken into account, the RSA No.435 of 2018 Page 3 of 6 {{ 4 }} whole claim of the Plaintiff would fall flat. He submitted that when those documents were filed in the First Appeal, the First Appellate Court, ought to have taken those into account in their proper perspective and the matter ought to have been remitted to the Trial Court for fresh hearing providing opportunities to the parties to lead further evidence. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 5. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 6. These Defendants were setting ex-parte in the Trial Court after having been provided with several opportunities acceding to their request. The suit having been preliminarily decreed, they having not filed any application under Order-9 Rule-13 of the Code, have straight way filed the First Appeal; wherein thus they challenge the judgment and preliminary decree on merit. The First Appellate Court having examined the record has found the Trial Court to have rightly set these Defendants ex-parte and proceeded to dispose of the suit ex-parte as the Defendants did RSA No.435 of 2018 Page 4 of 6 {{ 5 }} not participate. Thereafter, on the face of the uncontroverted pleading and unchallenged testimony of the Plaintiff, the First Appellate Court has found the Trial Court to have rightly decreed the suit preliminarily as per its order. In the First Appellate Court, even if we say that there was the scope for the Defendants who had not participated in the hearing of the suit to adduce additional evidence; they had not even filed any application to that effect as required under Order 41 Rule 27 of the Code. Furthermore, when the Defendants had not tendered any evidence during trial and they too had like before the Trial Court, laid no such foundation in the pleading; no such ground was there before the First Appellate Court to admit the additional evidence. In the absence of that when the party has no right to lead evidence in the First Appeal; there was no scope to examine the documents then filed by these Defendants even if it is said that those touch upon the merit of the claim of the Plaintiff. Be that as it may, simply filing certain documents before the Appellate Court as stated by the learned Counsel for the Defendants to have been done by these Defendants had never put the Court under the legal obligation to take those into consideration at that stage RSA No.435 of 2018 Page 5 of 6 {{ 6 }} without any foundation, being there in the pleading at all and accordingly, there was no scope to judge their impact over the finding or final conclusion returned by the Trial Court. In the wake of aforesaid, this Court finds that there arises no substantial question of law for being answered, meriting admission of this Appeal. 7.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 21-Dec-2023 15:48:33 RSA No.435 of 2018 Page 6 of 6