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Balaghat HusaIn Vs. Abid Bakhsh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All225a; 95Ind.Cas.1
AppellantBalaghat Husain
RespondentAbid Bakhsh and ors.
Cases ReferredMullu v. Deo Karan
Excerpt:
.....and defendant no. it is only necessary to mention this because in fact the rule is not very happily worded, but it clearly will not bear such an interpretation. ' it clearly means, every allegation of fact in the plaint if not denied specifically or if not denied by necessary implication or if not stated to be not admitted shall be taken to be admitted. in the first place, it is clear that on the finding that it is proved that the document was lost, the plaintiff is responsible for the failure to clear up any ambiguity or doubtful point that there may be. such circumstances he has in the opinion of the lower appellate court failed to establish......the second paragraph of his written statement he has expressly refused to admit the details of the bond. his admission, therefore, would not carry the plaintiff further than to entitle him to a finding that a bond of some sort had been executed by the vendor of defendants nos. 2 and 3 in favour of the plaintiff, fortified by findings that bond was not proved to have been fictitious or to have been discharged. how could the mortgagee get a decree on an admission and findings which did not proceed further than that? if that is so, then it was essential for him to prove the terms of the bond and that he could only do by proving the circumstances which would permit of his leading secondary evidence. such circumstances he has in the opinion of the lower appellate court failed to establish. i.....
Judgment:

Boys, J.

1. This is a plaintiffs appeal. One Balaghat Husain sued on a hypothecation bond, dated the 6th of February 1920, the mortgagor, Defendant No. 1 Mt. Bilqisunnissa, and two mortgages, alleged to be subsequent mortgagees, Defendants Nos. 2 and 3. Defendant No. 1 did not defend the suit. The only contesting defendants were Defendants Nos. 2 and 3. The plaintiff declared that he had lost the bond, and tendered in evidence a certified copy. The first Court found everything in favour of the plaintiff, including the loss of the bond. The lower appellate Court came to the conclusion that the allegations of the defendants that the bond was fictitious, that it had, as a matter of fact, been discharged before the date of transfer to them and that an endorsement had been made on the bond and that it had been returned to the mortgagor and again returned to the plaintiff were untrue; but further found that it was not established that the bond had been lost and on this ground it dismissed the suit. Counsel for the appellant agrees that it is a fair statement of the case for the appellant as it has been put before me here that he has relied on the second ground in the memorandum of appeal which in fact states the whole of case. It reads as follows:

Because execution of the deed being admitted and it being found as a fact that it was never returned by the plaintiff-appellant with an endorsement, there was nothing left for the plaintiff to prove in order to obtain a decree.

2. The real question for decision then in this case is What did the Defendants Nos. 2 and 3 admit and does their admission of the plaintiff's case go so far that a decree could be found on that admission without further proof of the contents of the document? The material paragraphs of the pleadings in the plaint are para. No. 2 where the mortgage is set out in complete detail. This was met by the defendants in their written statement where they begin by saying that para. 2 of the plaint which sets out the terms of the mortgage is 'not admitted.' In their additional statement they say in para. 3:

In April 1922 the contesting defendant came to know that the document sued upon, was fictitious and fraudulent, and that, at the time of the decision of the criminal case the plaintiff endorsed payment on it and returned it to Saghiruddin and Defendant No. 1. Thereupon the contesting defendant gave a registered notice, on 29th April 1922, to Defendant No. 1 and asked for the return of the document. He replied very late and said that the document had been returned to Balaghat Husain (the Saghiruddin mentioned is the husband of Defendant No. 1).

3. Further in para. 4 of, their additional statement they use this expression 'The plaintiff concealed the original document' and in para. 5 they say 'The bond sued upon is fictitious and without consideration.'

4. It may be noted, and the contrary is not seriously contended, that the certified copy is of no use to the plaintiff unless he can show that he is entitled to give secondary evidence, and in the circumstances of the case, he is debarred from doing that by the finding that he has not proved the loss of the original.

5. But it is urged (1) that the pleadings quoted from the written statement amount to a complete admission of the bond and of all the terms of it; (2) that Section 91 of the Evidence Act is no bar as the plaintiff does not need to prove any of the terms of the bond; (3) that, in view of the fact that the allegations of the defendant as to the discharge of the bond, etc., have been found false, the admissions entitle the plaintiff to a decree without the necessity of producing either the original or a certified copy.

6. Counsel for the appellant relied on the terms of Order 8, Rr. 3 and 5. The former merely declares that it shall not be sufficient to deny generally the grounds alleged, but the defendant must deal specifically with each allegation of fact. It is urged that a mere statement 'not admitted' is not a specific dealing with each allegation in para. 2 of the plaint. But it is difficult to see how the defendant could be expected to deal more specifically with the detailed terms of a document which ha does not say that he ever saw and which the plaintiff does not say that the defendant ever saw.

7. Rule 5 says that every allegation, 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.

8. Counsel would interpret this as, if not denied specifically or by necessary implication or if stated to be not admitted, shall be taken to be admitted. It is only necessary to mention this because in fact the rule is not very happily worded, but it clearly will not bear such an interpretation. If so strange a result had been intended, it would have read 'or if only stated to be not admitted.' It clearly means, every allegation of fact in the plaint if not denied specifically or if not denied by necessary implication or if not stated to be not admitted shall be taken to be admitted. Stating the effect in another way, it means:

Every allegation of fact if neither denied nor stated to be not admitted.

9. It appears to me that the admissions do not go far enough to justify the appellant in saying that he is entitled to a decree on them alone. In the first place, it is clear that on the finding that it is proved that the document was lost, the plaintiff is responsible for the failure to clear up any ambiguity or doubtful point that there may be. I should, therefore, prima facie be disinclined to construe the pleadings in the written statement of the defendant too strictly. But even if his pleadings be construed strictly I do not see how they can possibly be held to amount to more than this, that he admits generally having come to hear of some fictitious and fraudulent bond having been executed by Defendant No. 1 and of certain steps having been taken in regard to it in consequence of certain criminal proceedings between the mortgagor, Defendant No. 1, and the plaintiff, but at the same time by the second paragraph of his written statement he has expressly refused to admit the details of the bond. His admission, therefore, would not carry the plaintiff further than to entitle him to a finding that a bond of some sort had been executed by the vendor of Defendants Nos. 2 and 3 in favour of the plaintiff, fortified by findings that bond was not proved to have been fictitious or to have been discharged. How could the mortgagee get a decree on an admission and findings which did not proceed further than that? If that is so, then it was essential for him to prove the terms of the bond and that he could only do by proving the circumstances which would permit of his leading secondary evidence. Such circumstances he has in the opinion of the lower appellate Court failed to establish. I have been referred to the case of Sri Ram v. Ram Lal [1913] 11 A.L.J. 255. That is a case as nearly as possible on all fours with the present. It was distinguished in the case reported in the same volume: [Mullu v. Deo Karan [1913] 11 A.L.J. 734]. But in the latter case it is clear that the mortgage in question was between the parties and that the contesting defendant was the actual mortgagor. But, in fact, where it is a question whether or not the written statement or part thereof amounts to an admission of any or all of the essential portion of the plaintiff's case is a question to be determined in each case, a small variation in the particular circumstances may be decisive.

10. For the above reasons the appeal is dismissed with costs including counsel's fees in this Court on the higher scale.


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