- (1.) The impugned order dated 05.10.2010 passed by the Division Bench of the High Court of Karnataka at Bangalore in R.F.A.No. 597/2004 is under challenge in this appeal after grant of special leave at the instance of the plaintiff-appellant by which the High Court has set aside the judgment and decree of partition passed in favour of the plaintiff-appellant by the Civil Judge (Sr. Divn.) Chikmagalur dated 28.01.2004 and the appeal was remanded to the trial court in order to consider the matter afresh. The defendants-respondents herein have also been granted liberty to file written statement and produce the documents within four weeks from the date of the order passed by the High Court and the trial court was directed to dispose of the suit on merits in accordance with law within a period of six months. However, the decree of partition which the plaintiff-appellant already got executed in his favour was made subject to the result of retrial of the suit.
(2.) (i) The core question which requires determination in this appeal is whether the High Court exceeded its jurisdiction by directing the trial court for retrial of the suit and permitting the defendants to file written statement and documents without assigning any justifiable and legally sustainable reason particularly when the defendants-respondents were admittedly served with the summons and were also duly represented by their advocate in the trial court (ii) Further question which is related to the issue is whether the defendants-respondents who had chosen not to file written statement in spite of several opportunities granted by the trial court, could be granted fresh opportunity by the High Court to file written statement and order for retrial resulting into delay and prejudice to the plaintiff-appellant from enjoying the fruits of the decree in his favour . (iii) Yet another important question which arises herein and frequently crops up before the trial court is whether the trial court before whom the defendants failed to file written statement in spite of repeated opportunities could straightway pass a decree in favour of the plaintiff without entering into the merits of the plaintiff's case and without directing the plaintiff to lead evidence in support of his case and appreciating any evidence or in spite of the absence of written statement, the trial court ought to try the suit critically appreciating the merits of the plaintiff's case directing the plaintiff to adduce evidence in support of his own case examining the weight of evidence led by the plaintiff
(3.) Before we appreciate the aforesaid questions involved in this appeal, it appears essential to record some of the salient features and facts of the case giving rise to this appeal after grant of leave.;