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Tharayil Sarada and anr. Vs. Govindan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 987 of 1981
Judge
Reported in(1983)2SCC276; [1981]7TAXMAN321(SC)
ActsCode of Civil Procedure (CPC), 1908 - Order 6 Rule 17
AppellantTharayil Sarada and anr.
RespondentGovindan and anr.
Excerpt:
- [ a.c. gupta and; o. chinnappa reddy, jj.] -- code of civil procedure, 1908 — order 6, rule 17 and order 8, rule 1 — where plaintiff in second appeal allowed to amend his plaint, held, defendant must also be given opportunity to file an additional written statement, before passing a decree or order -- in this case, the high court in second appeal allowed the plaintiff to amend the plaint to include a prayer for partition of the disputed property and straightaway passed a preliminary decree declaring plaintiff's 1/4th share in the property......to include a prayer for partition of the disputed property and straightaway passed a preliminary decree declaring plaintiff's 1/4th share in the property. on behalf of the defendant, who is the appellant before us, it is contended, and in our opinion rightly, that the high court before making the decree should have given an opportunity to the defendant to file an additional written statement. accordingly, we set aside the impugned judgment and the decree and send the case back to the high court to dispose of the appeal in accordance with law, after giving the defendant an opportunity to file an additional written statement. we express no opinion on the correctness or otherwise of the findings recorded by the high court on other points. there will be no order as to costs.
Judgment:

A.C. Gupta and; O. Chinnappa Reddy, JJ.

1. In this case, the High Court in second appeal allowed the plaintiff to amend the plaint to include a prayer for partition of the disputed property and straightaway passed a preliminary decree declaring plaintiff's 1/4th share in the property. On behalf of the defendant, who is the appellant before us, it is contended, and in our opinion rightly, that the High Court before making the decree should have given an opportunity to the defendant to file an additional written statement. Accordingly, we set aside the impugned judgment and the decree and send the case back to the High Court to dispose of the appeal in accordance with law, after giving the defendant an opportunity to file an additional written statement. We express no opinion on the correctness or otherwise of the findings recorded by the High Court on other points. There will be no order as to costs.


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