(1) [PLAINTIFF'S shop is in Bapa Nagar. He was served with notice U/S 317 that hs shop is an encroachment on the street and he should remove the same. He filed suit for injunction that he built the shop in 949 when Bapa Nagar was an unapproved colony and there were no roads or streets and hence he had not caused any encroachment, Trial court dismissed the suit but senior sub-judge in appeal decreed the suit. Corporation appealed to High Court. Its plea that senior sub-judge had no jurisdiction to hear appeal was not entertained as no objection was taken to that effect before the S.S.J.] Para 5 onwards, judgment is:-
(2) Mr. Gupta, learned counsel for the plaintiff respondent submitted that the burden of proving that there was a street where upon some encroachment has been made which was the basis for giving the notice in question under section 317 of the Act was on the Corporation. It was also submitted that the Corporation has all the best evidence in its possession to prove when the road was constructed and since the Corporation has purposely withheld the best evidence to prove this fact, presumption must be raised against it that had the records been produced they would have gone against the Corporation. The respondent also pleaded that the appeal was barred by time and no sufficient cause was shown to condone the delay.
(3) Normally 1 would not have allowed the appellant to go into the question whether the shop was constructed much after the road came into being as the lower appellatc court had given a finding of fact that there was no street in existence at the time when the shop was built but since it was argued by Mr Marwah that this was never the case of the plaintiff-respondent and there was no evidence in support of this finding, I thought I might look into the finding of fact myself to test this submission.
(4) To appreciate the contentions of the counsel for the appellant it will be necessary to reproduce the relevant pleadings of the parties. [After reproducing judgment proceeds.]
(5) It is clear from the allegation made by the plaintiff in paragraphs 2 and 4 of his plaint that it was me case on the plaintiff that the shop had been constructed before any road etc. came into being. The only reply given by the defendant was that it is a matter of record. Rule 5 of Order 8 provides that an allegation in the plaint will be deemsd to be admitted by the defendant unless in the written statement (a) it is denied specifically or by necessary implication ; (b) it is stated that it is not admitted. The object of this rule is not very fato see ; and it is to, narrow the issues to be tried in the case and to enable either party to know what is the real point to be adjudicated upoa. Rule 5 has to be read alog with rule 3 which provides that it is not sufficient, to maka general denials. The combined effect of the above two rules is that it relieves the plaintiff from the obligation of proving such allegations in his plaint as are neither specifically denied nor stated to be not admitted in the written statement. The pleadings of the defendant do not show any denial either specifically or impliedly of the allegations made by the plaintiff.
(6) In view of this state of pleadings, the plaintiff was not required to prove that the road had been constructed after the construction of the shop and there is no wonder that in the statement of the plaintiff before the court there is no statement as to when the road was built or whether it was built after the construction of the shop. The fact, however, remains that in the statement of PW4, Durga Pershad, it was stated that the shop of the plaintiff is in existence for the last 20 or 22 years and that his neighbouring house is also built by the plaintiff and at that time there was no road and the road was built afterwards. It is again clear from the statement of two witnesses produced by the Corporation as DW1, Prabhu Dayal, and DW2, Panna Lal, that they had visited the site in dispute only in July 1969 and at end of 1970 respectively and they never visited site in dispute before that and they did not know when the property in dispute was constructed. It is curious that the Corporation, who was anxious to take action under the drastic powers conferred on it by section 317 of the Act, did not care to produce any evidence whatsoever as to when streets were constructed at the site in dispute or even in Bapa Nagar Colony. Apart from the verbal statements of the two witnesses that the property in dispute is situated on public street no evidence whatsoever was produced as to when streets were constructed. It will thus be seen that not only the findings of the lower appellate court that the shop had been built much before the road was constructed is supported by the evidence of PW4 Durga Parshad but is also in consonance with the pleadings of the parties. There was no evidence in rebuttal on this aspect.
(7) Mr. Marwah, learned counsel for the appellant, however, contended that this Court should not look into the implied admissions made in the written statement as the trial court had framed the aforesaid specific issue and thereforee the trial court had in its discretion after ignoring the implied admissions of the defendant required the plaintiff to prove facts as alleged in the plaint and this court in such circumstances could not look into the implied admissions made in the written statement. Proviso to rule 5 does not require any interpretation. In every case it is a question of fact as to how the trial court treated the pleadings. Had the proviso to rule 5 of Order 8 been present in the mind of the court or the parties, there would have been in spite of admission, a specific issue on the question of fact involved in the suit but it appears that only one issue was framed as to whether the impugned notice is illegal or without jurisdiction as stated in the plaint. The issue would have been differently framed. There is no quarrel with the proposition that once such an issue is framed as is contemplated by the proviso to rule 5, the plaintiff could be required to prove such allegations on which such an issue of fact is raised. Even such issues as are contemplated by the proviso are discretionary for the court to frame & normally the disretion is exercised only when courts suspect that the admission is made collusively or to avoid the rule of public policy or where the defendant's failure to deny allegations is due to ambiguous and unsatisfactory assertions in the plaint or where the defendant is taken by surprise and misunderstands the plaint. The proviso is not generally to be used merely because the defendant insists. It will thus be seen that even on the wordings of the proviso it is only after the court has applied its mind to the pleadings and to the alleged admissions that the court may in special cases in spite of admissions call upon the plaintiff to prove the fact alleged by him and frame a specific issue. In the present case the record of the trial court does not show at all that the only issue framed by it was with a view that it found the admission to be either collusive or the pleadings to be ambiguous or that the defendant was taken by surprise. It appears to be an issue framed in routine without any regard to the admissions made in the pleadings. In fact, the way evidence was led and the way the evidence had been appreciated by the courts below it does not show that the aforesaid issue was framed in view of the proviso to rule 5 of Order 8. Mr. Marwah, the learned counsel, relied upon numerous authorities to show the effect of an issue being framed as contemplated by the proviso to rule 5 of Order 8 including East India Trading Co. v. Badat and Company : AIR1959Bom414 ; Smt. Tikani Bai v. Punjab State and others (AIR 1964 Punjab 15); Bhageran Rai and others v. Bhagwan Singh and others : AIR1962Pat319 ; Shrimati Sarla Devi v. Birendra Singh : AIR1961MP127 ; Badat and Company v. East India Trading Company. : 4SCR19 . None of the authorities cited by the learned counsel for the appellant assist him. In the Bombay case of East India Trading Co. on facts it was found by the appellate court that in view of the admissions in the pleadings it was not proper for the trial court to have exercised discretion to call upon the plaintiff to prove the admitted facts. In the Punjab case of Smt. Tikani Bai Dua J. was dealing with a writ petition which was against records and the discretion of the learned Judge is based on its own facts of the case. The Patna case of Bhargeran Rai and others, merely reiterates the principles as stated earlier as to when such special issue has to be framed as required by the proviso. In the case of Badat & Co , the Supreme Court was dealing with pleadings on the original side of the Bombay High Court but had the occasion to interpret order 8 Rules 3, 4 and 5. Subba Rao J. at page 545 observed while dealing with the aforesaid rules that the three rules formed an integrated code dealing with the manner in which the allegations of facts in the plaint should be traversed and the legal consequence flowing from its non-compliance. It was held that the written statement must specifically deal with each allegation of fact in the plaint, and when defendant denies any such fact, he must not do so evasively. It was observed that if a denial of fact is not specific but evasive the aid fact shall be taken to be admitted and in such an event the admission itself being proof, no other proof is necessary. It was observed that while applying the proviso to rule 5, the court has its discretion and the power to require any fact so admitted to be proved otherwise than by such pleadings. It was observed that in the matter of Mofussil pleadings, the courts presumably relying upon the said proviso, show more laxity in the interest of justice. It was, however, observed that in construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of accidental slip or omission and not to help a party who designedly makes vague denials and thereafter seeks to rely upon them for non-suiting the plaintiff. The Court observed that the discretion under the proviso must be exercised by a Court having regard to justice of the cause, with particular reference to the nature of the parties, standard of drafting obtaining in the locality and the traditions and conventions of the Court wherein such pleadings are found,
(7) It will be noticed that the written statement in this case was filed on behalf of Corporate Body and 1 have no reason to think that they do not have proper legal advisors to assist them and eminent counsel to conduct their cases but the legal advisors and/or counsels work only on the basis of the material supplied by the various departments of such Corporate Bodies. I cannot give license to such responsible Public Corporate Bodies to be lax in dealing with the property of the citizens. It is too late in the day to say that in the Mofussil Courts in Delhi, the parties are used to tolerating laxity in the pleadings. I, thereforee, hold that neither any such issue was framed as is contemplated by the proviso to rule 5 of Order 8 nor can this Court ignore the admissions made in the written statement in proof of facts as alleged by the plaintiffs on the plea of ignoring laxity in pleadings.
(8) In the present case as to when and what outlay of the Bapa Nagar Colony was sanctioned, when the colony was built, when the roads were constructed therein and when they were metalled, are matters which are part of the records of the Corporation. The Corporation for reasons best known to it did not produce any record whatsoever to show when the streets in Bapa Nagar Colony were laid. Such records with the Corporation were the best evidence which would have thrown light on the issue in controversy. It is not, in my opinion, a sound practice for those desiring to rely upon certain state of facts to withold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof as laid by the trial court while framing issues. In Murugesam Pillai v. Gnana Sambandha (43 Ind. App. 98 at page 103) Lord Shaw observed as follows :
'Apractice has grown upon Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit, but with regard to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.'
(9) The above passage was cited with approval by the Supreme Court in the case of Gopal Krishnaji v. Mohamed Haji Latif : 3SCR862 . The Court can, if a party in possession of best evidence withholds it, raise an adverse inference against the party withholding such evidence in his possession.
(10) In Des Raj v. Municipal Corporation (R.S.A. 140/71 decided on 18.1.1972) where a notice issued by the Corporation under section 321 of the Act was challenged, and the onus to prove that the land mentioned in the notice is a public plaee or street was placed by the trial court on the appellant who had challenged the notice, it was held by Shankar J. that the burden of proving that the land in question was a public place or street lay on the Municipality as that was the basis for giving the notice in question and since the burden was placed on the plaintiff-appellant wrongly, it was held that the issues were not properly framed. The appeal was accepted and the case was remanded after retraining the issues. While remanding the case, the trial court was directed that the onus of proving the issue be placed on the respondent - Corporation. I respectfully agree with this approach of Shankar J. It will thus be seen that in accordance with the aforesaid reasoning of Shankar J. the burden was on the Corporation which had issued the notice under section 317 to satisfactorily establish that the street existed before the unauthorised construction was made thereon to become an encroachment within the meaning of section 317 of the Act. As observed by me earlier, the Corporation led no evidence at all as to when the street was constructed in the present case. I must, thereforee, hold that the finding of fact reached by the lower appellate court that the shop was in existence much before the streets came into being on the site in dispute is correct and is not vitiated by any error of law.
(11) Coming to the third submission on behalf of the appellant, the relevant part of section 317 of the Act may bo examined :
'317.(1) Except as provided in section 318, no person shall erect, set up, add to or place against or in front of any premises any structure or fixture which will - (a) overhang, jut or project into, or in any way encroach upon, and obstruct in any way the safe or convenient passage of the public along, any street, or (b) jut or project into or encroach upon any drain or open channel in any street so as in any way to interfere with the use or proper working of such drain or channel or to impede the inspection or cleansing thereof. (2) The Commissioner may by notice require the owner or occupier of any premises to remove, or to take such other action as he may direct in relation to, any structure or fixture which has been erected, set up, added to, or placed against, or in front of, the said premises in contravention of this section. (3) ............ ............'
(12) It will be noticed that it is the erection, setting up or adding or placing against or in front of any premises, structure or fixture which encroaches upon and obstructs in any way the safe or convenient passage of the public along any street is prohibited. It will again be noticed that the existence of any street on which encroachment is made is a condition precedent to the applicablility of the erection. Again, this section also postulates that street must first be in existence before any erection or setting up or addition on such premises can come within its mischief. The section would have no applicability if the premises were already there and the street was later on constructed in such a way that the premises came in the alignment of such street.