The defendants were entitled to file a written statement and cross-examine witnesses even without filing the written statement, and the Court must consider their reasonable cause for not filing the written statement in time.

JUDGMENT

Nataraj Rangaswamy, J. - This appeal is filed by the defendants in O.S. No. 142/2011 on the file of the Court of the Civil Judge and JMFC., Periyapatna (henceforth referred to as the 'Trial Court') challenging the divergent opinion of the Court of the Addl. Senior Civil Judge and JMFC., Hunsur, sitting at Periyapatna, (henceforth referred to as the 'First Appellate Court') in R.A. No. 56/2013, by which it reversed the judgment and decree passed by the Trial Court in O.S. No. 142/2011 and decreed the suit of the plaintiff for partition and separate possession.

2. The parties will henceforth be referred to as they were arrayed before the Trial Court. The appellants herein were the defendants while the respondent herein was the plaintiff before the Trial Court.

3. The suit in O.S. No. 142/2011 was filed by the plaintiff for partition and separate possession of his 1/3rd share in the suit schedule properties. It is claimed that the grandfather of the plaintiff, Sri Kodigowda, had three children, namely, Sri Kengegowda, Smt. Alamma/Halamma and Smt. Lakshmi, who is defendant No. 9 in the suit. Sri Kengegowda died leaving behind his wife, defendant No. 1, and children i.e., defendant Nos. 2 to 8. Likewise, Smt. Alamma/Halamma died leaving behind the plaintiff. It is claimed that the suit properties were ancestral joint family properties of the plaintiff and defendants and all of them cultivated the suit lands and were in joint possession of the same. It is alleged that after the death of Sri Kengegowda, the defendants attempted to sell the suit properties without effecting a partition. The plaintiff demanded his share in the suit properties, which was turned down and hence, the plaintiff was advised to file a suit for partition.

4. On service of suit summons, defendant Nos. 1 to 8 appeared through a counsel, but failed to file the written statement within the time prescribed. Defendant No. 9 was placed ex parte before the Trial Court, Later, an application was filed by the learned counsel for defendant Nos. 1 to 8 seeking permission to file a written statement which was objected by the plaintiff. The Trial Court rejected the application (I.A. No. IV) and imposed cost of Rs. 1,000/-. The defendants did not pay the cost. When the case was set down for trial, the defendants filed another application seeking permission to cross-examine PW.1 which was also rejected by the Trial Court by imposing cost of Rs. 500/-. Thereafter, the case was posted for arguments.

5. Based on the oral and documentary evidence, the Trial Court dismissed the suit on the ground that the plaintiff was not able to prove his genealogy and could not trace his lineage to Smt. Alamma/Halamma.

6. Being aggrieved by the aforesaid judgment and decree of the Trial Court, the plaintiff filed Regular Appeal No. 56/2013 before the First Appellate Court. In the said appeal, the plaintiff filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short 'the CPC') to produce his genealogy as additional documentary evidence. The First Appellate Court allowed the application and contemporaneously allowed the appeal and decreed the suit and declared that the plaintiff is entitled to 1/3rd share in the suit schedule properties.

7. Being aggrieved by the aforesaid judgment and decree, the defendants have filed this Regular Second Appeal.

8. The learned counsel for the defendants/appellants submitted that the Trial Court committed an error in rejecting the application filed by them seeking permission to file a written statement and also for cross-examination of P.W.1. The learned counsel submitted that the defendants were entitled to cross-examine P.W.1 as a matter of right. Nonetheless, the Trial Court on a wrong assumption of law, rejected the application on the ground that the defendants had not filed their defence. He further contended that the First Appellate Court perpetuated the mistake by not following the procedure prescribed under Order XLI Rule