Case Note & Summary
The appellant, Santa Monica Convent (Archdiocese of Goa and Daman), filed a second appeal against the judgment and decree of the District Court, Panaji, which had confirmed the trial court's ex parte decree. The suit was filed by the respondents (Anant Vithal Kubal and the Seminary of Our Lady) seeking a declaration of ownership and possession of certain properties. The trial court decreed the suit ex parte solely on the ground that the affidavit evidence of the plaintiff had gone unchallenged, without analyzing the evidence or considering the burden of proof. The first appellate court confirmed this decree. The High Court framed a substantial question of law: whether such an ex parte decree is sustainable. The High Court held that the trial court erred in decreeing the suit without analyzing the evidence and without applying the burden of proof. The court set aside both the trial court and first appellate court judgments and remanded the matter for fresh disposal in accordance with law. The appeal was allowed.
Headnote
A) Civil Procedure - Ex Parte Decree - Affidavit Evidence - Unchallenged Evidence - When a suit is decreed ex parte solely on the ground that the affidavit evidence of the plaintiff had gone unchallenged and without analyzing such evidence, the decree is not sustainable - The court must analyze the evidence and apply the burden of proof under the Evidence Act, 1872 - Held that the trial court erred in decreeing the suit without proper analysis (Paras 1-3).
Issue of Consideration
Whether a suit can be decreed ex parte solely on the ground that the affidavit evidence of the plaintiff had gone unchallenged, without analyzing such evidence and without considering the burden of proof.
Final Decision
The High Court allowed the appeal, set aside the judgments and decrees of both the trial court and the first appellate court, and remanded the matter to the trial court for fresh disposal in accordance with law.
Law Points
- Ex parte decree
- Affidavit evidence
- Unchallenged evidence
- Burden of proof
- Evidence Act
- 1872
- Order 8 Rule 10 CPC
- Order 17 Rule 3 CPC
- Substantial question of law
Case Details
2006 LawText (BOM) (02) 52
Second Appeal No.148 of 2005
Shri D.P. Bhise for the Appellant, Shri J.P. Mulgaonkar for the Respondent No.1
Santa Monica Convent, alias Convento de Santa Monica, alias Mosteiro de Santa Monica of Archdiocese of Goa and Daman, represented by the Archbishop Rt.Rev. Filipe Neri Ferrao, through his lawful attorney, Rev. Fr. Arlino De Mello
1. Shri Anant Vithal Kubal, 2. The Seminary of Our Lady, Saligao-Pilerne, alias Seminary of Saligao, through its Rector
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Nature of Litigation
Second appeal against concurrent judgments of trial court and first appellate court in a suit for declaration of ownership and possession.
Remedy Sought
Appellant sought to set aside the ex parte decree and the confirming judgment of the District Court.
Filing Reason
The trial court decreed the suit ex parte solely because the plaintiff's affidavit evidence was unchallenged, without analyzing the evidence or considering the burden of proof.
Previous Decisions
Trial court decreed the suit ex parte; first appellate court confirmed the decree.
Issues
Whether an ex parte decree can be passed solely on the ground that the plaintiff's affidavit evidence is unchallenged, without analyzing the evidence and without considering the burden of proof.
Submissions/Arguments
Appellant argued that the trial court erred in decreeing the suit without analyzing the evidence and without applying the burden of proof.
Respondent supported the concurrent findings.
Ratio Decidendi
When a suit is decreed ex parte solely on the ground that the affidavit evidence of the plaintiff had gone unchallenged and without analyzing such evidence, the decree is not sustainable. The court must analyze the evidence and apply the burden of proof under the Evidence Act.
Judgment Excerpts
When a suit is decreed ex parte solely on the ground that the affidavit evidence of the plaintiff had gone unchallenged and without analysing such evidence, the decree is not sustainable.
Procedural History
The trial court decreed the suit ex parte. The first appellate court confirmed the decree. The appellant filed a second appeal before the High Court of Bombay at Goa.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 8 Rule 10, Order 17 Rule 3
- Indian Evidence Act, 1872:
