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Sakina Bee Vs. Mohamed Ameer Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 87 of 1974
Judge
Reported inILR1976KAR1001; 1976(1)KarLJ365
ActsKarnataka Rent Control Act, 1961 - Sections 21(1); Code of Civil Procedure (CPC), 1908 - Order 8, Rule 5
AppellantSakina Bee
RespondentMohamed Ameer Saheb and ors.
Appellant AdvocateS.V. Narasimhan, Adv.
Respondent AdvocateC.N. Seshagiri and ;K. Subba Rao, Advs.
Excerpt:
.....eviction on the ground of sub-letting and as the appellant and the 2nd respondent did not file any written statement or objections, the court was competent to proceed on the basis that the allegations of fact pleaded by the ist respondent in his application have been admitted by the appellant and the 2nd respondent. on the basis of such an admission, the court was clearly competent to make an order of eviction without calling upon the ist respondent to prove the sub-letting. 5 of the civil procedure code has made the order for eviction on the ground of sub-letting, it cannot be said that there was no material on record for the learned munsiff to be satisfied that the requirements of clause (f) of the proviso to sub-section (1) of section 21 of the act are satisfied. i fail to see how it..........that merely because the appellant and the 2nd respondent remained absent and had not filed any written statement or objections to the eviction petition filed by the 1st respondent and were placed ex parte, the learned munsiff exercising jurisdiction under the act, could not have passed an order of eviction without the ist respondent placing evidence in support of his case.4.in this case, the eviction was sought on two grounds - the first round is that the appellant has committed (if-fault in payment of' rent and therefore the landlord is entitled to an order of eviction tinder clause (a) of the proi7iso to sub-section (1) of section 21 of the act, and the second ground is sub-letting which falls under clause (f) (if the proviso to sub-section (1) of section 21 of the act.5. i will.....
Judgment:

1. This execution second appeal is by the 1'st judgment-debtor against the order passed by the Principal Civil Judge, Bangalore City, in Ex. A No 7/1973, reversing the order passed by the II Additional First Munsiff, Bangalore City, in Ex. No. 1267/1965.

2. Respondent 1 filed an application for eviction against the appellant and respondent 2 under clauses (a) and (f) of the proviso to sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act), on the ground that the appellant who was. his tenant has committed default in payment of rent and also unlawfully sublet the premises to respondent-2. The appellant and respondent-2 did not file any objections to the eviction petition. They were also not present when the case was posted for hearing. Hence, they have been placed ex parte. In these circumstances, the learned Munsiff allowed the eviction petition ex parte. The application filed by the appellant for setting aside the ex parte order was dismissed, which order has been affirmed on appeal and further on revision by this Court. The Ist respondent sued out execution of the order obtained by him. The appellant opposed the said application on the ground that the order for eviction is not executable. It was contended by him that the (Malimath J.) order of execution sought to be executed has not been passed by the court after being satisfied that the landlord has established the grounds for eviction under the relevant provisions of Section 21 relied upon by him. As the landlord did not lead any evidence in support of his case and. as the learned Munsiff has Dot stated in his order that the grounds for eviction pleaded by the landlord have been established, it was contended that the order of eviction must be regarded as the one made without jurisdiction and therefore in executable. As this objection of the appellant found favour with the executing court, the execution petition was dismissed on the l4th of November 1972. On appeal, the learned Civil judge set aside the order of the executing court holding that order of eviction is executable. He further directed the executing court to proceed to consider the application as directed by this Court in C. 11. P. No. 324/1971 decided on 8-10-1971 and to dispose of the execution petition in accordance with law. It is the said order that is challenged by the Ist judgment-debtor in this execution second appeal.

3. It was contended by Sri S. V. Narasimhan, learned counsel for the appellant that the order of eviction sought to be executed being an ex parte order made without being satisfied that the grounds for eviction have been proved by the Ist respondent, the same must be regarded as the one passed without jurisdiction and therefore not executable. It was contended that merely because the appellant and the 2nd respondent remained absent and had not filed any written statement or objections to the eviction petition filed by the 1st respondent and were placed ex parte, the learned Munsiff exercising jurisdiction under the Act, could not have passed an order of eviction without the Ist respondent placing evidence in support of his case.

4.In this case, the eviction was sought on two grounds - the first round is that the appellant has committed (If-fault in payment of' rent and therefore the landlord is entitled to an order of eviction tinder clause (a) of the proi7iso to sub-section (1) of Section 21 of the Act, and the second ground is sub-letting which falls under clause (f) (if the proviso to sub-section (1) of Section 21 of the Act.

5. I will first examine the case of the landlord-respondent-1 for eviction on the ground of sub-letting, In his petition for eviction, it is conceded that the Ist respondent has made necessary averments, which if proved, would entitle him to an order of eviction on the ground that the appellant has unlawfully sub-let the Premises in favour of respondent-2. The appellant and respondent-2 who were the only respondents in the eviction proceedings, did not file their written statement or objections.

6. The provisions of Civil Procedure Code are made applicable to proceedings before court under the Act. Order 8 Rule 5 of the Code of Civil Procedure provides as follows:-

'Every allegation of fact 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.

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.' It is clear from this provision that if the allegations of fact made in the plaint are not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, the same shall be taken to be admitted, except as against a person under disability. When there is such an admission of the allegation of, fact made in t e plaint, the court may proceed to make a decree or order on the basis of such admission or it may in its discretion as provided in the proviso, require any fact so admitted, to be proved by the plaintiff otherwise than by such admission. If the court in its discretion does not require any fact so admitted to be proved by such admission, it can proceed to make a decree or order in favour of the plaintiff on the basis of such an admission. That is precisely what the learned Munsiff did when lie passed the order of eviction on the 2nd of September 1965. As necessary allegations of fact were made in the petition for eviction which, if proved, would entitle the Ist respondent to an order of eviction on the ground of sub-letting and as the appellant and the 2nd respondent did not file any written statement or objections, the court was competent to proceed on the basis that the allegations of fact pleaded by the Ist respondent in his application have been admitted by the appellant and the 2nd respondent. On the basis of such an admission, the court was clearly competent to make an order of eviction without calling upon the Ist respondent to prove the sub-letting. It is no doubt true that the court could have exercised its discretion not to pass an order of eviction solely on the basis of the admission but if the court exercised its discretion to make an order of eviction on the basis of admission, it cannot be said that such an order is one passed without jurisdiction and therefore not executable. As the learned Munsiff invoking 0. 8, R. 5 of the Civil Procedure Code has made the order for eviction on the ground of sub-letting, it cannot be said that there was no material on record for the learned Munsiff to be satisfied that the requirements of clause (f) of the proviso to sub-section (1) of Section 21 of the Act are satisfied.

7. It was maintained by Sri. Narasimhan, that the provisions of -Order 8 R. 5 C. P. C. are not applicable to the facts of the Present case inasmuch as neither the appellant nor respondent-2 ever filed any written statement or objections to the eviction petition filed by the Ist respondent. That no written statement or objections were filed by the appellant and the 2nd respondent, is not disputed by the Ist respondent. According to Sri. Narasimhan, the provisions of Order 8 R. 5 are applicable only to cases where written statement or objection statement is, in fact, filed and not to cases where no written statement or objection statement is filed. In support of his contention, be relied upon the following decisions namely, AIR 1935 Pat -306 (Sonabati Kumari v. Kirtyanand Singh); AIR 1928 Lah 769 (Narindar Singh v. C. M. King) and AIR 1917 Cal 269 (2) (J. B. Ross and Co. v. C. R. Scriven). In all these decisions. the view taken is that Order 8 Rule 5 C. P. C. applies to cases where there is, in fact, a pleading of the defendant before the Court. There is not much discussion in the judgments of the Patna and Lahore High Courts as they have merely followed the decision of the Calcutta High Court referred to above. In Boss's case decided by the Calcutta High Court, this is what their Lordship's have observed:

'I think it is clear from the wording of that rule that it is only intended to apply to a case where a pleading has been put by the defendant, and I think the short answer to the learned counsel's argument on that point is that the rule is not intended to apply to a case where the defendant has not put in a written statement.'

It is clear from the language employed in Order 8 Rule 5 C. P. C. that an allegation of fact in the plaint should be taken to be admitted except as against a person under disability when the said allegation is not specifically denied; (2) the said allegation is not denied by necessary implication; or (3) the said allegation is stated to be not admitted in the pleading of the defendant. If the defendant does Dot deity the allegations of fact made in the plaint either by making specific averments or by necessary implications or by stating that he does not admit those allegations, the said allegations of the plaintiff have to be taken as having been admitted by the defendant. In my opinion, there is nothing in the language employed in Order 8 Rule 5 C. P. C. to limit its application only to cases , here a pleading has been lodged by the defendant. I fail to see how it makes any difference in principle as to whether the defendant has filed a written statement but not denied the allegations of fact made by the plaintiff specifically or by necessary implications or be does not at all file any written statement. The view which I am inclined to take in this behalf also accords with the view taken by the Bombay High Court in AIR 1936 Bom 285 (Shriram]Surajmal v. Shriram Jliun Jhunwalla). Chief justice Beaumont, has observed in the said decision as follows:-

'........................... It was argued that defendants 7 to 9 failing to put it 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 in ILR 43 Cal 1001 (1) = (AIR 1917 Cal 269 (2)) in which the learned Chief justice, in referring to 0. 8, R. 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 DO pleading. I desire for myself to say that I emphatically dissent from that view. 0. 8, 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 tinder disability. The rule down to that Point is in substantially the same terms as Order 19 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 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 beard 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 8, 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 Dot unknown, the power may usefully be exercised in practice, but if tile 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 7 to 9 were bound by all the allegations in the plaint'.

8. With respect, I agree with the reasoning of the Bombay High Court for dissenting from the view taken by Calcutta High Court which view has been followed by the Lahore and Patna High Courts in the decisions referred to earlier.

9. As the order of eviction on the ground of subletting is not inexecutable, I consider it unnecessary to examine the other contentions of Sri. Narasimhan that the order of eviction on the ground of Don-payment of rent is without jurisdiction and therefore inexecutable.

10. For the reasons stated above, this execution second appeal fails and is dismissed. No costs.

11. Appeal dismissed.


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