Gopinath vs Sayed Pathru

Khaliluzzaman Siddiqi, J.—Appellant's lawyer heard. A suit was filed for possession of a small piece of open land behind the Plaintiff's house. The trial Court dismissed the suit for want of proof and that judgment was upheld on first appeal. This is the second appeal.

2-3. It is contended by the learned lawyer for the Appellant in the first place that the Plaintiff's evidence was sufficient to entitle him to a decree; secondly that even if the evidence was insufficient the case ought to be remanded for further evidence as the Plaintiff was misled by the fact that there was no defence in the case and he believed that only minimum amount of evidence would be sufficient to obtain a decree in view of those circumstances. The third contention is that it was the duty of the Court to point out to the Appellant that the evidence produced by him was insufficient.

What actually happened in this case is that the Defendant failed to submit his written statement on a day fixed for that purpose, and in view of the statements of the Vakil, the Court ordered that the Defendant is not allowed to put in his defence and framed issues'' and proceeded with the case. Thereafter while there was no written statement on the record, the Defendant's Vakil was present and adduced evidence on behalf of the Defendant and finally the suit was dismissed. In view of these facts I am unable to apply the principle laid down in AIR 1948 168 (Nagpur) (A), or Shriram Surajmal v. Shriram Jhunjhunwalla AIR 1936 Bom 285 : 20 Deccan LR 540 (C). The reason is in cases where the defence is put in and there are only partial denials, it follows in view of the provisions of Section 109, Hyderabad Code of Civil Procedure. that a fact not specifically denied is deemed to be admitted. It may be as pointed out in one of the above stated rulings where the Defendants did not put in the written statement purposely or intentionally, it may be possible to interpret his conduct to mean that the Plaintiff's "claim or certain facts alleged by him have been admitted by necessary implication.

4a. I have always been of opinion that the Indian Code of Civil Procedure, whatever may be the law in other countries, does not usually impose any penalty or punishment where a party in a civil suit fails to appear or fails to do a certain act. What this CPC provides is where the parties fail to perform an act which is necessary for the further prosecution of the case, the Court shall proceed further if it so desires so that the failure of the party does neither call for punishment nor entitles him to any benefit by way of compelling the Court to adjourn the case where it does not want to do so in the interests of justice. That being so the theory of admission of a fact stated in the pleadings whether by necessary implication or otherwise must logically or reasonably result from the circumstances present. That is to say where a person admits or denies some facts and does not admit or deny any one of them clearly then the operation of the principle embodied in Section 109, Code of Civil Procedure. will come into operation. Similarly as in AIR 1936 Bom 285 (B) it may be possible to say in a case where no defence has been lodged in spite of an opportunity to do so, it may be rightly concluded by necessary implication that certain facts have been admitted. But to push this theory to this extent that where the conduct of the parties does not actually amount to admission is to be assumed to have been admitted by way of punishment simply because on account of the negligence or some other fault he failed to put in defence is, I think, going much further than what is contemplated under our CPC What happens here on account of the Defendant's failure to act in time is he is not allowed to put in his written statement. It is clear that he wanted to put in a written statement, certainly not merely to admit the case but, as it is clear, to resist the case. Therefore unless the Code of CPC permits an admission by way of necessary implication as a punishment for failure, I am not prepared to interpret Section 109 to extend to a case of this kind.

The other two rulings one of Nagpur and the other of the Hyderabad High Court do not help this case. What has happened here is that the Plaintiff produced all his evidence which consists of four witnesses. The Defendant, who was not allowed to submit his defence, produced two witnesses evidently all the evidence he wanted to submit. On that evidence the trial Court refused to believe the story put forth by the Plaintiff that the land in dispute was under his ownership. The argument of the learned lawyer is that the Plaintiff proceeded with the case on the assumption that the Plaintiff's allegations in the plaint were admitted by necessary implication and therefore the Plaintiff had put in only minimum amount of evidence which is required in a case where there is no express denial. If this contention is correct, I am afraid the learned lawyer might have gone a step further and said "well my case is admitted; there is no need for the Plaintiff to produce any evidence". Naturally in cases of admission no evidence is required. Only in cases where there is a denial that the Plaintiff is called upon to produce evidence. Of course in cases where there is no defence evidence, the minimum amount of evidence is all that is required.

The Plaintiff comes in and claims title of a piece of land. He has no documentary evidence of whatever nature because he says that in villages there is no record of owner- ship. There is also evidence produced by the Defendant denying the ownership and possession of the Plaintiff. In spite of these factors, I might have remanded this case if I had found that the Plaintiff was actually misled at any stage of this suit or he was prevented from bringing in further evidence which he could produce but did not for some cogent reason. After the judgment of the trial Court was de- livered, the Plaintiff certainly knew that the evidence he has produced has failed to convince the Court. If there was any evidence yet to be tendered he should have mentioned that fact and claimed a remand in the first appellate Court. But no such case is made out and I am not prepared to interfere in the grounds at this stage in second appeal. There is nothing on the record to show that there is any evidence in the possession of the Plaintiff which can be of any use. As pointed out by their Lordships in the Privy Council remand- Sing cases without a careful consideration of all these factors may lead to false evidence being brought in into Court and remand of cases requires great care. It is admitted by the learned advocate for the Appellant that there is no documentary evidence on the subject. I, therefore, dismiss this appeal. As the Respondents are absent there is no order as to costs.