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Sakina Bee v. Mohamed Ameer Saheb And Others
Factual and Procedural Background
This is an execution second appeal by the 1st judgment-debtor (the appellant) against an order of the Principal Civil Judge, Bangalore City, in Ex. A No. 7/1973 which reversed an order of the II Additional First Munsiff, Bangalore City, in Ex. No. 1267/1965.
Respondent 1 (the landlord) filed an eviction application under clauses (a) and (f) of the proviso to sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961, alleging (a) default in payment of rent and (f) unlawful sub-letting to respondent 2. The appellant and respondent 2 did not file any objections or written statements and were absent at hearings; the learned Munsiff therefore proceeded ex parte and allowed the eviction petition on 2 September 1965.
The appellant moved to set aside the ex parte order; that application was dismissed and the dismissal was affirmed on appeal and in revision by this Court. Respondent 1 then sought execution of the eviction order. The appellant opposed execution, contending the eviction order was not executable because it was passed without jurisdiction: specifically, the landlord had not led evidence and the order did not state that the grounds for eviction had been proved. The executing court accepted this objection and dismissed the execution petition on 14 November 1972.
On appeal from the executing court's order, the learned Civil Judge set aside the executing court's dismissal and held the eviction order to be executable, directing the executing court to proceed in accordance with a prior direction of this Court in C. 11. P. No. 324/1971 (decided 8-10-1971). The present appeal challenges that order of the Principal Civil Judge.
Legal Issues Presented
- Whether an ex parte eviction order passed by the Munsiff under the Karnataka Rent Control Act (based on allegations of unlawful sub-letting and non-payment of rent) is executable when the landlord did not lead evidence but the defendants failed to file objections or a written statement.
- Whether Order 8 Rule 5 of the Code of Civil Procedure applies in cases where the defendant has not filed any written statement or pleading, such that allegations in the plaint are to be treated as admitted.
- Whether the eviction order on the ground of non-payment of rent (clause (a) of the proviso to sub-section (1) of Section 21) is without jurisdiction and therefore inexecutable (this issue was raised but not decided by the Court because the Court disposed of the appeal on the sub-letting point).
Arguments of the Parties
Appellant's Arguments (as advanced by Sri S. V. Narasimhan)
- The ex parte eviction order must be regarded as passed without jurisdiction and therefore not executable because the landlord did not lead any evidence and the Munsiff's order did not state that the grounds for eviction had been established.
- Merely because the appellant and respondent 2 remained absent and did not file written statements or objections, the learned Munsiff could not lawfully pass an eviction order without the landlord adducing evidence in support of his case.
- Order 8 Rule 5, C.P.C., is not applicable where no written statement or pleading has been filed by the defendant; the rule applies only where a pleading has in fact been put in by the defendant. In support, reliance was placed on decisions: AIR 1935 Pat 306 (Sonabati Kumari v. Kirtyanand Singh), AIR 1928 Lah 769 (Narindar Singh v. C. M. King) and AIR 1917 Cal 269 (J. B. Ross and Co. v. C. R. Scriven).
Respondent 1 / Landlord's Position (as discernible from the opinion)
- The landlord's eviction petition contained necessary averments which, if proved, would entitle him to an order of eviction on the ground of unlawful sub-letting; those averments were not denied specifically or by necessary implication by the defendants.
- Under Order 8 Rule 5, C.P.C., allegations in the plaint not denied must be taken to be admitted; the Munsiff was entitled to act on that admission and make an order of eviction without calling on the landlord to lead evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1917 Cal 269 (J. B. Ross and Co. v. C. R. Scriven) (referred to as "Boss's case") | Held (as described in the opinion) that Order 8 Rule 5 applies only where a pleading has been put in by the defendant and not where the defendant has not put in a written statement. | The Court described this view and quoted it, but ultimately rejected the limitation imposed by this Calcutta High Court view for the facts before it. |
| AIR 1928 Lah 769 (Narindar Singh v. C. M. King) | Followed the Calcutta view that Order 8 Rule 5 applies only when a pleading has been filed by the defendant. | The opinion notes that Lahore (and Patna) High Courts followed the Calcutta view; the present Court did not accept this approach in the facts of the case. |
| AIR 1935 Pat 306 (Sonabati Kumari v. Kirtyanand Singh) | Also reflects the view that Order 8 Rule 5 requires a pleading by the defendant to operate. | The opinion records reliance on this decision by the appellant but does not adopt its restrictive approach. |
| AIR 1936 Bom 285 (Shriram Surajmal v. Shriram Jhun Jhunwalla) | Dissenting view: Order 8 Rule 5 applies even where no written statement has been filed; allegations in the plaint not denied must be taken as admitted and the court may act on those admissions unless it in its discretion requires proof. | The Court expressly agreed with the reasoning of the Bombay High Court and applied that approach: O.8 R.5 can operate even where no pleading has been filed, enabling the court to make a decree/order on the basis of deemed admissions. |
| Order 19 Rule 13 (of the Rules of the Supreme Court) (referred to in the Bombay decision) | Found to be substantially in the same terms as O.8 R.5 C.P.C.; used to illustrate that similar rules operate against defendants who do not put in a defence. | The Court noted the analogy cited in the Bombay decision and relied upon the same textual basis to support application of O.8 R.5 even where no pleading exists. |
| C. 11. P. No. 324/1971 (decided 8-10-1971) (this Court) | Referenced as an earlier direction of this Court regarding how execution proceedings should be continued. | The Principal Civil Judge's order (which the appellant challenged) directed the executing court to proceed as directed by this earlier decision; the present Court's dismissal of the appeal leaves that direction in effect. The opinion does not elaborate the content of that earlier decision beyond the reference. |
Court's Reasoning and Analysis
The Court's reasoning focuses primarily on the applicability of Order 8 Rule 5 of the Code of Civil Procedure to eviction proceedings under the Karnataka Rent Control Act and on whether an ex parte eviction order based on deemed admissions is executable.
The Court set out the text of Order 8 Rule 5 and explained its operation: every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the defendant's pleading, shall be taken to be admitted, except as against a person under disability. The Court emphasized the proviso empowering the court, in its discretion, to require any such admitted fact to be proved otherwise than by the admission.
Applying that rule, the Court observed that the landlord's eviction petition contained necessary averments that, if proved or if taken as admitted, would entitle him to eviction on the ground of unlawful sub-letting. Because the appellant and respondent 2 did not file any written statement or objections, the Court concluded that the Munsiff was entitled to treat the petition's allegations as admitted and to make an eviction order on that basis without calling the landlord to lead evidence.
The Court addressed and rejected the appellant's contention that Order 8 Rule 5 is inapplicable where no pleading at all has been filed. The appellant relied on decisions from the Calcutta, Lahore and Patna High Courts which interpreted the rule as limited to situations where a pleading had been filed. The Court reviewed the Bombay High Court decision (AIR 1936 Bom 285) which dissented from the Calcutta view and held that the rule applies even where the defendant has not put in a pleading, because in that situation there is nothing in the defendant's (non-existent) pleading which can contain a denial or non-admission and, consequently, the plaintiff's allegations must be treated as admitted unless the court in its discretion requires proof.
The Court expressly agreed with the reasoning of the Bombay High Court and applied it: there is nothing in the language of Order 8 Rule 5 to limit its operation to cases where a pleading has been filed. Hence, the Munsiff's use of O.8 R.5 to pass an eviction order on the basis of deemed admissions was proper and did not render the order one passed without jurisdiction. The Court therefore held that there was material on record for the learned Munsiff to be satisfied that clause (f) (sub-letting) of the proviso to sub-section (1) of Section 21 of the Act was made out on the basis of admitted pleadings.
Because the Court found the eviction order on the ground of sub-letting to be executable, it declined to examine the appellant's separate contention regarding the non-payment of rent ground (clause (a)), leaving that question unaddressed.
Holding and Implications
Holding: The execution second appeal is dismissed.
Implications:
- The Court held that an ex parte eviction order based on allegations of unlawful sub-letting is executable where the respondents did not deny the allegations or file any written statement; the Munsiff was entitled to act on deemed admissions under Order 8 Rule 5, C.P.C.
- The Court rejected the contention that Order 8 Rule 5 is confined to cases in which a defendant has filed a pleading; it endorsed the Bombay High Court view that the rule can apply even where no written statement has been filed, subject to the court's discretion under the proviso to require proof.
- Because the eviction order on the sub-letting ground was held executable, the Court found it unnecessary to decide the separate argument that the eviction on the ground of non-payment of rent was without jurisdiction.
- Direct effect on the parties: the appellant's execution second appeal fails and the order of the Principal Civil Judge (setting aside the executing court's dismissal of execution and directing further proceedings) stands; the executing court was to proceed in accordance with earlier directions of this Court. No costs were awarded.
- On legal principle, the Court's agreement with the Bombay High Court reasoning constitutes an authoritative statement in this judgment that Order 8 Rule 5 may apply even when a defendant has not filed a written statement; the opinion explains and applies that principle to the eviction proceedings before it.
No other remedies, costs, or further directions are contained in the provided opinion beyond what is summarized above.
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 (Shrira]Tl 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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