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Shriram Surajmal Vs. Shriram Jhunjhunwalla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 55 of 1935
Judge
Reported in(1936)38BOMLR577
AppellantShriram Surajmal
RespondentShriram Jhunjhunwalla
Excerpt:
.....rule 5 - defendant not putting in written statement, effect of -practice-procedure.;under order viii, rule 5, civil procedure code, 1908, every allegation of fact in a plaint must be taken as admitted unless denied or stated to be not admitted in the pleading of the defendant. a defendant who does not put in a defence is bound by all the allegations in the plaint.;ross & co. v. scriven and others (1916) i.l.r. 43 cal. 1001, dissented from. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking..........and others i.l.r(1916) cal. 1001, in which the learned chief justice, in referring to order viii, rule 5, said that it was clear from the wording of that rule that it is only intended to apply to a case where a pleading has been put in by the defendant, and does not apply to a case in which the defendant has put in no pleading. i desire for myself to say that i emphatically dissent from that view. order viii, rule 5, provides that every allegation in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted, except as against a person under disability. the rule down to that point is in substantially the same terms as order xix, rule 13, of the rules of the supreme court, and it.....
Judgment:

John Beaumont, Kt., C.J.

1. I only desire to add a few words on a subsidiary point argued by Mr. Desai. It was argued that defendants Nos. 7 to 9' failing to put in a written statement were not to be taken as having admitted the allegations in the plaint, and in support of his argument Mr. Desai referred to the case of Ross & Co. v. Scriven and Others I.L.R(1916) Cal. 1001, in which the learned Chief Justice, in referring to Order VIII, Rule 5, said that it was clear from the wording of that rule that it is only intended to apply to a case where a pleading has been put in by the defendant, and does not apply to a case in which the defendant has put in no pleading. I desire for myself to say that I emphatically dissent from that view. Order VIII, Rule 5, provides that every allegation in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted, except as against a person under disability. The rule down to that point is in substantially the same terms as Order XIX, Rule 13, of the Rules of the Supreme Court, and it seems to me to provide in terms that every allegation of fact in the plaint must be taken as admitted unless denied or stated to be not admitted in the pleading of the defendant. If there is no pleading of the defendant, it is obvious that it can contain no denial or non-admission. I have myself never heard it suggested that the English rule does not apply to a defendant who does not put in a defence. There is, however, a proviso to Order VIII, Rule 5, which does not appear in the English rule. That proviso enables the Court in its discretion to require any fact so admitted to be proved otherwise than by such admission. In this country where false suits are not unknown, the power may often usefully be exercised in practice, but if the Court does not exercise such power, it seems to me plain that a defendant who has not put in a defence is bound by all the allegations in the plaint, and I think, therefore, that in this case defendants Nos. 7 to 9 were bound by all allegations in the plaint.


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