Telangana High Court

M Hemalatha Devi vs Shasikala on 2 September, 2021

Bench: A.Rajasheker Reddy, G Sri Devi

THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE JUSTICE G.SRI DEVI

A.S.NOs.1980 OF 2018 & 70 OF 2019

COMMON JUDGMENT (Per the Hon'ble Sri Justice A.Rajasheker Reddy)

Respondents 1 to 4 herein, who are the plaintiffs, filed suit in

O.S.No.1065 of 2007 on the file of I Additional District and Sessions Judge,

Ranga Reddy District, against defendants 1 to 4 for partition of the suit

schedule property and for separate possession. As the defendants remained

ex parte, the trial court holding that the suit claim is proved, passed the

preliminary decree vide judgment dated 17.11.2008. Subsequently vide

order dated 08.01.2018 in I.A.No.915 of 2014 in O.S.No.1065 of 2007 the

trial court passed the final decree.

2. Aggrieved by the preliminary decree dated 17.11.2008, the

4th defendant in the suit filed A.S.No.1980 of 2018, and she also filed

A.S.No.70 of 2019 assailing the final decree dated 08.01.2018.

3. Since the issue in both the appeals is connected, they are heard

together and are being disposed of by this common order.

4. Heard Sri V.Ravinder Rao, Senior Counsel appearing for

Sri C.Naresh Reddy, learned counsel for the appellant and Sri P.S.Rajasheker

and Sri Resu Mahender Reddy for respondents, and perused the entire

material on record.

5. The impugned judgment in O.S.No.1065 of 2007 dated

17.11.2008, where-under preliminary decree was passed, reads as under:

"P.W.1 is examined. Exs.A-1 and A-2 are marked. Suit claim is proved.

In the result, preliminary decree is passed with costs for partition of plaint
schedule property by metes and bounds into 7 shares and allotment of one share
each to the plaintiff No.1 to 4 and defendant No.1 to 3."

6. It is settled law that even if it is a ex parte decree, the court has to

consider the material evidence on record, and give reasons for recording the
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finding of fact that the suit claim is proved. A reading of the impugned

judgment shows that no reasons are assigned for recording the finding of fact

that the suit claim is proved, therefore, it is bereft of any reasons.

7. The Apex Court in BALRAJ TANEJA v. SUNIL MADAN1,

considering Section 2(9), Order 20 Rule 4(2) and Order 8 Rule 10 of CPC,

held that whether a case is contested or is decided ex parte or is a case

where written statement is not filed, court has to write a judgment in

conformity with CPC, or at least must set out the reasoning by which the

controversy is resolved. It further held that even if the definition of

'judgment' were not indicated in Order 20, Rule 4(2), 'judgment' would still

mean the process of reasoning by which the judge decides a case in favour of

one party and against the other, and that a judgment, which does not

indicate its reasoning, suffers from infirmity. The relevant portion is thus:

42. "Judgment" as defined in Section 2(9) of the Code of Civil Procedure means
the statement given by the Judge of the grounds for a decree or order. What a
judgment should contain is indicated in Order 20, Rule 4 (2) which says that a
judgment :

"shall contain a concise statement of the case, the points for determination, the
decision thereon and the reasons for such decision."

It should be a self-contained document from which it should appear as to what were
the facts of the case and what was the controversy which was tried to be settled by
the Court and in what manner. The process of reasoning by which the Court came to
the ultimate conclusion and decreed the suit should be reflected clearly in the
judgment.

43. In an old case, namely, Nanhe vs. Saiyad Tasadduq Husain (1912) 15 Oudh
Cases 78, it was held that passing of a mere decree was material irregularity within
the meaning of Section 115 of the Code and that even if the judgment was passed
on the basis of the admission made by the defendant, other requirements which go
to constitute "judgment" should be complied with.

44. In Thippaiah and others vs. Kuri Obaiah, ILR 1980 (2) Karnataka 1028, it
was laid down that the Court must state the grounds for its conclusion in the
judgment and the judgment should be in confirmity with the provisions of Section
2(9) of the Code of Civil Procedure. In Dineshwar Prasad Bakshi vs. Parmeshwar
Prasad Sinha, AIR 1989 Patna 139, it was held that the judgment pronounced under
Order 8 Rule 10 must satisfy the requirements of "judgment" as defined in Section
2(9) of the Code.

45. Learned counsel for respondent No. 1 contended that the provisions of Order
20, Rule 1 (2) would apply only to contested cases as it is only in those cases that
"the points for determination" as mentioned in this Rule will have to be indicated,
and not in a case in which the written statement has not been filed by the
defendants and the facts set out in the plaint are deemed to have been admitted.
We do not agree. Whether it is a case which is contested by the defendants by filing
a written statement, or a case which proceeds ex-parte and is ultimately decided as
an ex-parte case, or is a case in which the written statement is not filed and the
case is decided under Order 8 Rule 10, the Court has to write a judgment which
must be in conformity with the provisions of the Code or at least set out the
reasoning by which the controversy is resolved.

1
(1999)8 SCC 396
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46. An attempt was made to contend that the definiton of judgment as set out
in Section 2(9) of the Code would not be applicable to the judgment passed by the
Delhi High Court in its original jurisdiction wherein the proceedings are regulated by
the provisions of the Delhi High Court Act, 1966. It is contended that the word
"judgment" used in the Delhi High Court Act, 1966 would not take its colour from
the definition of "judgment" contained in Section 2(9) of the Code of Civil Procedure.
We do not intend to enter into this controversy, fortunately as it is not contended
that the Code of Civil Procedure does not apply, but we cannot refrain from
expressing that even if it were so, the Delhi High Court is not absolved of its
obligation to write a judgment as understood in common parlance. Even if the
definition were not contained in Section 2(9) or the contents thereof were not
indicated in Order 20 Rule 1 (2) CPC, the judgment would still mean the process of
reasoning by which a Judge decides a case in favour of one party and against the
other. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot
merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has
to be set out for deciding the case one way or the other. This infirmity in the present
judgment is glaring and for that reason also the judgment cannot be sustained."

8. In the impugned preliminary decree, which is extracted above,

there is no reasoning. Therefore, as per the above judgment of the Apex

Court, it cannot be sustained, and as such it is not necessary for us to go into

other merits of the case.

9. In view of the above, the preliminary judgment and decree dated

17.11.2008 passed in O.S.No.1065 of 2007 is set aside, and consequently

the final decree dated 08.01.2018 passed in I.A.No.915 of 2014 in

O.S.No.1065 of 2007, is also set aside, and the matter is remitted back to

the trial court for fresh consideration.

10. Learned counsel for the appellant is permitted to take documents

filed in I.A.No.1 of 2021 in A.S.No.1980 of 2018 from the registry, for

presenting the same before the trial court.