Gauhati High Court
Arunamayee Bishaya And Ors. vs Rabindra Kumar Bora And Ors. on 17 September, 2007
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. By this Civil Revision Petition, the plaintiffs, as landlords, have put to challenge the judgment and decree, dated 28.07.2000, passed by the learned Civil Judge (Senior Division), No. 1, Kamrup, in Title Appeal No. 38/99, allowing the appeal and reversing thereby the judgment and decree, dated 26.03.99, passed, in Title Suit No. 17/87, whereby the learned Civil Judge (Junior Division), No. 1, Kamrup, had decreed the suit on the ground that the defendants were defaulter in making payment of the rent.
2. The material facts and various stages, which have led to the present revision, may, in brief, be set out as follows:
(i) The plaintiffs instituted Title Suit No. 17/87 aforementioned, their case being, in brief, thus: the suit premises, originally, belonged to one Radha Mohan Goenka under whom late Hridayananda Bora, predecessor-in-interest of the defendants, was a tenant at a monthly rental of Rs. 175/-, the rent being payable by the first week of each succeeding month as per the English calendar. By a registered sale deed, dated 29.11.83, the said Radha Mohan Goenka transferred his rights, title and interest in the suit premises to the plaintiffs and thereby the plaintiffs became landlord of the defendants. By a registered notice, dated 15.12.94, the fact of purchase of the suit premises by the plaintiffs was conveyed to the defendants by the constituted attorney of their original landlord, namely, Radha Mohan Goenka. The defendants accordingly approached the plaintiffs and attorned to them as their landlord and promised to pay rent @ Rs. 175/- per month within the first week of every succeeding month as per the English calendar. The defendants also promised to enter into a fresh arrangement with the plaintiffs as regards their tenancy. The defendants, however, failed to make payment of rents from the month of December, 1983, and became defaulter. The plaintiffs, then, issued a registered notice to the defendants through their counsel demanding, inter alia, that the defendants vacate the suit premises. Though the defendants received the notice on 22.08.86, they did not vacate the suit premises. The plaintiffs, therefore, filed a suit for eviction of the defendants on the ground of default in making payment of the rents. Later on, the plaintiffs amended their plaint and further claimed that they needed the suit property bona fide for their own occupation and use.
(ii) The defendants resisted the suit by filing a joint written statement, their case, in their written statement, being to the effect that on receipt of the notice, dated 15.12.84, which was given to them by their original landlord's constituted attorney informing the defendants about the sale of the suit premises in favour of the plaintiffs, the defendant No. 2 went, on 22.12.84, to the shop of their original landlord, Radha Mohan Goenka and Biswa Nath Goenka, to seek clarification and also offered rent to them, but they refused to accept the rent and asked the defendant No. 2 to offer the rent to the plaintiffs. The defendant No. 2 accordingly went, on 07.01.85, to the plaintiffs and offered rents for the months of June, 1984, to December, 1984, but the plaintiffs refused to accept the rents so offered to them. The defendants denied that they had ever promised to enter into any fresh or new arrangement with the plaintiffs as their landlord. The further pleaded case of the defendants was that since the plaintiffs had refused to accept the rents offered to them by the defendants, the defendants applied to the Court in terms of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, on 11.01.85 and, then, on being allowed by the Court, they deposited the rents in the Court. The defendants were, thus, asserted the defendants, not defaulters. The defendants accordingly sought for dismissal of the suit. While resisting the amendment of the plaint, the defendants filed an additional written statement contending, inter alia, that the suit premises were not bona fide required by the plaintiffs as landlord. In their additional written statement, the defendants further contended, inter alia, that they had been regularly paying rents and that the predecessors-in-interest of the plaintiffs had, at times, in the past, received rents of two months at a time.
3. The learned trial Court framed the following issues:
i) Is there any cause of action for the suit?
ii) Whether the defendants are the defaulter?
iii) Whether the plaintiffs have bona fide requirement for the suit premises?
iv) Whether the plaintiff are entitled to a decree for arrear of rent as claimed?
v) Whether the plaintiff are entitled to a decree for ejectment of the defendants?
vi) To what relief the partied are entitled?
4. In support of their respective cases, both the parties adduced evidence, oral as well as documentary. The learned trial Court held that while the plaintiffs could not prove their claim for bona fide requirement of the suit premises, they had succeeded in proving that the defendants were defaulter. Based on the conclusions so reached, a decree was drawn. This decree was challenged by the defendants in Title Appeal No. 38/99. Since the appeal has been allowed as indicated hereinabove, the plaintiffs have challenged the appellate decree in the present revision.
5. I have heard Mr. N. Choudhury, learned Counsel, for the plaintiffs-petitioners, and Mr. D.K. Mishra, learned Senior counsel, appearing on behalf of the defendants-opposite party.
Appearing on behalf of the plaintiffs-petitioners, Mr. N. Choudhury has taken me through the pleadings of the parties and submitted that it is the admitted case of the defendants that the rent payable to the plaintiffs, as landlord, was Rs. 175/-per month and that the rent was to be paid to the landlord within the first week of every succeeding month according to English calendar. In the face of such pleadings, contends Mr. Choudhury, neither the due date of payment of rent nor the mode of payment can be said to be in dispute. In such circumstances, the onus, according to Mr. Choudhury, lied on the defendants to show that they had paid rent within the first week of each succeeding month. It is also submitted by Mr. Choudhury that the evidence on record clearly proves that the defendants did not even make the offer of payment of the rent within the period aforementioned and in such circumstances, the deposit of rents, Court, could not have been held to have saved the defendants from being treated as defaulter, particularly, when the defendants miserably failed to prove, contends Mr. Choudhury, that the rent, which had fallen due, was offered to the plaintiffs as landlord within the due period of time and that it was upon refusal by the landlord to accept the rent that the rent was deposited in the Court in terms of Section 5(4) of the Urban Areas Rent Control Act, 1972. Pointing out to the evidence on record, Mr. Choudhury further submits that a careful scrutiny of the evidence on record clearly reveals that even after the institution of the suit, the defendants did not deposit the rent within the due date and that the deposit of rent was made far beyond the permissible limit of the period fixed by the said Act. Situated thus, the judgment of reversal, in the present case, cannot, according to Mr. Choudhury, stand scrutiny of law. It is contended by Mr. Choudhury that even during pendency of the proceedings for eviction instituted against a tenant, the tenant's obligation to pay rent, within the due date, continues and that when there is default in making payment of rent within the due date even after a suit for a tenant's eviction is instituted, such subsequent development is sufficient to hold the tenant defaulter and direct his eviction. In support of these submissions, Mr. Choudhury places reliance on Shova Biswas and Ors. v. Ranjit Lodh reported in 2006 (1) GUT 479, and Abdul Matin Choudhury and Ors. v. Nilayananda Dutta Banik reported in 1997 (2) GLT 590,
6. Opposing the submissions made on behalf of the plaintiff-petitioners, Mr. D.K. Mishra, learned Senior counsel, for the defendants-opposite party, has submitted that pleadings of the parties have to be read as a whole and if, in the present case, the pleadings are carefully considered, it becomes transparent that the defendants denied that there was any due date for payment of rent; rather, the case of the defendants has been that the landlord had been collecting rent at his convenience. In such circumstances, submits Mr. Mishra, the learned appellate Court was wholly justified in holding to the effect that the defendants were not defaulter, for, they had, as per the agreement between the parties concerned, paid the rent within the due date. It is also submitted by Mr. Mishra that evidence of developments, which may take place subsequent to the institution of a suit for eviction, cannot be taken note of by a Court unless such facts are introduced, in the pleadings, by way of necessary amendment and proved by adducing evidence. In the present case, the suit, points out Mr. Mishra, was instituted way back in the year 1987 and the default during pendency of the suit allegedly occurred in the year 1988. Whether or not such default had occurred, contends Mr. Mishra, is a question, which arose after institution of the suit and, hence, without proper evidence having been adduced on record upon such amendment, as were required, this Court cannot, now, enter into the question as to whether after institution of the suit, any default, on the part of the defendants, to pay the rent, as tenants, could be proved. In support of his submissions, Mr. Mishra refers to Trojan and Co. v. R.M.N.N. Nagappa Chettiar , Om Prakash Gupta v. Ranbir B. Goyal and Ram Nibas Gagar v. Debojyoti Das .
7. It is also submitted by Mr. Mishra that while exercising revisional jurisdiction under Section 115 of the CPC, the revisional Court has very limited jurisdiction inasmuch as it cannot interfere with the findings of fact reached by the trial or appellate Court if the trial court or the appellate Court had the jurisdiction over the subject-matter unless the Court, whose finding is impugned in revision, exercised the jurisdiction with material irregularity. In the case at hand, the learned appellate Court has not, according to Mr. Mishra, committed any error in coming to the conclusion that the defendants were not proved to be defaulter. Support for his submissions is sought to be derived by Mr. Mishra from the decisions in Dev Kumar (D) (through LRS) v. Swaran Lata , Lachhman Dass v. Santokh Singh reported in (1995) 4 SCC 201, D. Sankaranarayannan v. Punjab National Bank reported in 1995 Supp. (4) SCC 675, Anil Kumar Saha v. Aclhir Kumar Deb reported in 2001 (3) GLT 402 and Chandrika Prasad (Dead) (through LRS) v. Umesh Kumar Verma
8. Mishra has further submitted that it is far a landlord to prove the due date of payment of rent. In the present case, the evidence, contends Mr. Mishra, is galore that there was no fixed date of payment of the rent and that the landlord used to collect rents as per his conveyance. In such circumstances, submits Mr. Mishra, the learned trial Court ought not to have held that the defendants were defaulter. The learned appellate Court has, therefore, committed no wrong, submits Mr. Mishra, in reversing the finding of the learned trial Court. In support of his submission that the burden of proving the due date of payment of rent is of the landlord and that without the proof of the due date of payment of the rent, a tenant cannot be held to be defaulter, Mr. Mishra refers to, and relies upon, Harish Chandra Ram Kanai Bhuyan and Ors. v. Naresh Chandra Ghosh reported in 1985 (1) GLR 36, Upendra Chandra Deb Roy v. Smt. Subhasini Deb and Ors. reported in 1989 (2) GLR 7 and Hari Shankar Sahu v. Giridharilal Sarmah reported in 1989 (2) GLR (NOC) 33.
9. Resisting the submissions made on behalf of the defendants-opposite party, Mr. N. Choudhury has reiterated that if the pleadings, at paragraphs 2 and 4 of the plaint, are carefully read, it becomes more than abundantly clear that the defendants did not specifically deny that the rent was payable within the first week of every succeeding month according to the English calendar. In such circumstances, contends Mr. Choudhury, a tenant cannot contend that there was no proof of due date of payment of rent. When the pleadings are not denied at all or are not specifically denied as regards due date of payment of rent, such pleadings are nothing, but admissions of facts pleaded in the plaint and, hence, the defendants must be treated, in the present case, to have admitted that the rent was payable within the first week of every succeeding month according to the English calendar. In support of his submission that non-specific or evasive denial amounts to admission, Mr. Choudhury refers to Uttam Chand Kothari v. Gauri Shankar Jallan and Ors. reported in 2007 (1) GLT 37. Mr. Choudhury also submits that the plaintiffs, as petitioners, have brought to the notice of this Court that even during the pendency of the suit, the defendants did not make payment of rents within the due date and when these assertions have not been specifically disputed and, particularly, when non-payment of the due rent is clearly discernible from the evidence on record, the defendants cannot, now, contend that the plaint ought have been amended in order to bring on record the default, if any, in making payment of rents during the pendency of the suit. In support of this submission, Mr. Choudhury has referred to Abdul Matin (supra) and Sobha Biswas (supra).
10. While considering the question as to whether the defendants could be proved to be defaulter or not, it is pertinent to note that the fact that there was a relationship of landlord and tenant between the parties to the suit has not been in dispute nor has it been in dispute that the rent payable by the defendants, as tenant, to the plaintiffs, as landlord, was Rs. 175/- per month. What has, however, been in dispute is the due date of payment of rent. What has also been in dispute is the question as to whether the defendants had failed to pay to the plaintiffs the rent, which had fallen due or whether the defendants had deposited, in accordance with law, the rent, in the Court, when the rent, on becoming due, had been offered to the landlord and the landlord had refused to accept the rent, so offered. While considering this aspect of the case, it needs to be noted that while the plaintiffs' case is that the rent was payable within the first week of each succeeding month according to the English calendar, the defendants' case is that the rent was paid, in lump sum, for several months together, as and when the rent was demanded by the plaintiffs. It is, thus, an admitted position that the tenancy was a monthly tenancy and governed by the English calendar. Hence, in the absence of any agreement indicating to the contrary, rent, in a case of present nature, would become due and payable at the end of each month. (See Kamala Bakshi v. Khairati Lal ). Unless, therefore, in the present case, the defendants are held to have proved, by the conduct of the landlord or otherwise, that the rents were being collected by the landlord for several months together, the logical conclusion would be that since the tenancy is a monthly tenancy, the rent would become due and payable at the end of every succeeding month according to the English calendar.
11. A careful reading of Sub-section (4) of Section 5 of the said Act shows that the right of a tenant to deposit rent in the court arises, when a lawfully due rent is offered by him to the landlord and the landlord refuses to accept the offer of payment of such a lawfully due rent. Sub-section (4) of Section 5 of the said Act also shows that on such refusal, the rent can be deposited within a fortnight of the rent having become due and that such deposit has to be together with the process-fees for service of notice upon the landlord. The language, used in Sub-section (4) of Section 5 of the said Act, makes it abundantly clear that it is only on refusal to accept the lawfully due rent offered by the tenant to his landlord that the tenant acquires the right to deposit the rent in the court. If the rent does not become due and payable to the landlord and/or if such a lawfully due rent is not offered to be paid to the landlord and such offer is not declined by the landlord, the tenant would not be entitled to deposit rent in the court.
12. It is also worth pointing out that when a landlord pleads that he has not been offered or paid rent and that the tenant is a defaulter, the onus shifts to the tenant to prove that he has either paid rent to the landlord or that he has deposited the rent, due and payable, in the court, in terms of the provisions of the said Act. (See Kali Kumar Sen v. Makhal Lal Biswas AIR 1969 A & N 66 (FB). In the face of such a clear position of law, it was the duty of the learned Courts below to satisfy itself whether the defendants could prove that they had paid to their landlord the rent, when the same had fallen due, or that they had offered to pay the rent, when the same had fallen due, and that it was on the refusal of the landlord to accept the rent, so offered, that the defendants had deposited the rent in the Court and that such deposit was in accordance with the scheme of the said Act.
13. Bearing in mind the position of law as indicated above, when I revert to the case at hand, what attracts the eyes, most prominently, is that in para 2 of their plaint, the plaintiffs specifically pleaded, "That prior to the purchase of the land by the plaintiffs, late Hridayananda Bora, predecessor-in-interest of the defendants, occupied both the Holding Nos. 17 and 18 of Ward No. 24 of Gauhati Municipal Corporation as a tenant-at-will at a monthly rent of Rs. 175/-, payable by the first week of every succeeding month according to English Calendar, month and year."
14. The pleaded case of the plaintiffs, at para 3, was, "That after the sale of the land, including the Holdings, by Shri Radhamohan Goenka, his constituent Attorney, Shri Brishwa Nath Goenka, informed the defendants by a registered notice, dated 15.12.84, informing the defendants, that the land along with Holdings were sold to the plaintiffs by a registered Sale Deed No. 8778/83, dated 29.11.83, and has given delivery of possession of the same to the plaintiffs and so he directed the defendants to make fresh arrangement with the plaintiffs as they are no longer tenants of Shri Radhamohan Goenka after the sale."
15. The plaintiffs, at para 4 of the plaint, then, pleaded, "That according to this intimidation the defendants approached the plaintiffs and attorned them as their landlords and promised to make fresh arrangement with the plaintiffs and also promised to pay the monthly rents at the rate of Rs. 175/- by the first week of every succeeding month according to the English Calendar, month and year."
16. Describing as to how the defendants had become defaulter, the plaintiffs, in para 5 of the plaint, specifically pleaded, "That in spite of the promise made by the defendants, they have neither made any fresh arrangement nor they have paid the monthly rent from the month of December, 1983 and as such they have become defaulter and so they cannot seek any protection under the provisions of the Assam Urban Areas Rent Control Act."
17. As against the statements made in para 2 of the plaint, the defendants reacted by pleading:
7. That the statements made in para 2 of the plaint are not correct. In this connection, the defendants beg to state that prior to purchase of the land by the plaintiffs, late Hridayananda Bora, husband of defendant No. 1 and father of defendant Nos. 2 to 8, occupied the suit premises at a monthly rent of Rs. 40.00 under the original landlady Smti. Panna Devi Agarwalla. After the expiry of Hridayananda Bora, the defendants were paying rent regularly to the original owner up-to-date. Thereafter, a fresh agreement was executed between the then landlord Shri Radha Mohan Goenka and the defendant No. 2 for the suit premises and the monthly rent was enhanced to Rs. 175/-. The said agreement was created from 01.07.1982.
18. As against the statements made in para 3 of the plaint, the defendants pleaded:
That with regard to the statements made in para 3 of the plaint, the defendants beg to state that on 20.12.84 the defendant No. 2 received a letter, dated 15.12.84, signed by Shri Vishwanath Goenka claiming himself to be the constituent Attorney for Shri Radha Mohan Goenka where it was stated that Municipal Corporation holding No. 21 of M.C. Road and Holding No. 27 of Bhuban Ch. Road of Ward No. 24 has been sold to the plaintiffs. It was further stated that the Sale Deed was registered on 29.11.83. By the said letter it was stated that the defendants has paid rent up to June, 1984. It was also stated that the defendant No. 2 will be tenant under the plaintiffs. The defendants further beg to state that after the receipt or the above letter, dated 15.12.1984, the defendant No. 2, on 21.12.84, went to the shop of Shri Radha Mohan Goenka and Vishwanath Goenka to clarify the position and also to offer rent to them, but they refused to accept the rent and asked the defendant No. 2 to offer the rent to the plaintiffs. Accordingly, on 07.01.85, the defendant No. 2 went to the plaintiffs and offered the rent from June, 1984 to December, 1984, but the plaintiffs refused to accept the same.
19. Reacting to the statements made in para 4 of the plaint, the defendants pleaded thus:
That the statements made in para 4 of the plaint to the effect that the defendants "promised to make fresh arrangement with the plaintiffs" are not correct and hereby denied. As stated, the defendant No. 2 went to the plaintiffs on 07.01.85 and offered the rent from June, 1984 to December, 1984, but the plaintiffs refused to accept the same. That the defendants beg to state that the plaintiffs, with an ulterior motive and to make the defendants to be a defaulter in the eye of law, refused to accept the rent and as such the defendants were left with no other alternative and accordingly approached this Hon'ble Court by way of filing an application Under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, on 11.01.85 and after due permission from the court, deposited the rent amount in the court and filed requisite process fee for service of notice upon the plaintiffs.
20. In their additional written statement, the defendants further pleaded, at para 3, thus:
That the answering defendants beg to state that the previous owner of the suit premises was paid monthly rent regularly and some time the previous owner uses to receive two months rent at a time as per his wish.
21. If the pleadings of the parties, as reproduced above, are put to a microscopic analysis, it becomes abundantly clear that the fact that at the time, when the defendants had attorned to the plaintiffs as their landlord, the monthly rent for the suit premises was Rs. 175/-. According to the pleaded case of the plaintiffs at para 2 of their plaint, the rent was payable within the first week of every succeeding month according to the English calendar. In fact, in para 2 of the plaint, though the specific assertion of the plaintiffs was that the rent was payable within the first week of every succeeding month according to 'the English calendar, the defendants merely denied the correctness of the pleadings at para 2 of the plaint. In respect of such clearly pleaded case of the plaintiffs at para 2 of the plaint and when the specific assertion of the plaintiffs was that the rent was payable within the first week of every succeeding month according to the English calendar, the defendants made a general denial of the correctness of the statements, so made. There was, thus, neither any specific denial nor any denial by implication that the rent was payable within the first week of every succeeding month according to the English calendar. Though the defendants, in para 7 of the written statement, stated, while dealing with para 2 of the plaint, that the statements made in para 2 of the plaint are not correct, the fact remains that the statements, made in para 2 of the plaint, were substantially admitted by the defendants, particularly, as regards the plaintiffs' assertion that the rent was payable within the first week of every succeeding month according to the English calendar.
22. Similarly, para 4 of the plaint specifically states (i) that the defendants approached the plaintiffs and attorned to them as their landlord, (ii) the defendants promised to make fresh arrangement with the plaintiffs, and (iii) the defendants promised to pay monthly rent at Rs. 175/- by the first week of every succeeding month according to the English calendar.
23. While dealing with para 4 of the plaint, the defendants specifically denied that they had promised to make fresh arrangement with the plaintiffs. Surprisingly enough, however, the defendants did not specifically deny that the rent was Rs. 175/- and/or that this rent was payable by the first week of every succeeding month according to the English calendar. Even when the written statement is read as a whole, I do not notice any specific denial or a categorical denial by implication that the rent was payable by the first week of every succeeding month according to the English calendar. Situated thus, it is clear that there is substantial force in the submissions made on behalf of the plaintiffs-respondents that while the defendants have denied that they had promised to make fresh arrangement with the plaintiffs, the defendants chose to remain silent and cannot, therefore, be taken to have denied, either specifically or by implication, that the rent was payable within the first week of every succeeding month according to the English calendar.
24. Coupled with the above, it can also not be ignored that in their additional written statement, the defendants claimed that the previous owner of the suit premises was paid monthly rent regularly and, sometime, the previous owner used to receive two month's rent, at a time as per his wish. This admission made by the defendant's show that ordinarily, the rent was to be paid monthly and it was only on some occasions that the rent was received by the landlord for two months at a time. In the face of such pleadings, it cannot be said that the due date of payment of rent was not, ordinarily, within the first week of every succeeding month according to English Calendar.
25. Before entering into the question as to whether the impugned decree needs interference by this Court, it is, to my mind, necessary to ascertain if there is any difference in the law between an 'express' and 'implied' admission made in a written statement.
26. My quest for an answer to the above question brings me to Order VIII, Rules 3,4 and 5 of the Code of Civil Procedure (in short, "the Code"). The relevant provisions are quoted here in below:
3. Denial to be specific--It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
4. Evasive denial--Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the plaint of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
5. Specific denial--(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings 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.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to Sub-rule (1) or under Sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
27. What may be noted is that Order VIII, Rule 5(2) to 5(4) were inserted by the 1976 Amendment to the Code of Civil Procedure, 1908.
28. From a careful reading of Order VIII, Riles 3, 4 and 5, it clearly emerges that when an allegation of a fact, made in the plaint, is not denied, in a written statement, specifically or by necessary implication or is not stated to have not been admitted, such a pleading will constitute an implied admission. In short, evasive denial or non-specific denial constitutes an implied admission in a judicial proceeding of civil nature. This does not, however, mean, I must hasten to add, that an implied admission must necessarily occur in a judicial proceeding, for, it is possible to make an implied admission, otherwise than in a judicial proceeding, in terms of the provisions of the Evidence Act. Whether there is an implied admission or not is, usually, a question of fact or may, in a given case, be a mixed question of fact and law. An express admission is one, which is specifically made, either in a judicial proceeding or otherwise, in accordance with the provisions of the Evidence Act. However, in order to determine if an admission has been made in a written statement, the written statement has to be read as a whole.
29. Pointing out that a non-specific or evasive denial amounts to admission, an admitted fact need not be proved and that evidence cannot be allowed to be adduced contrary to such admission or inconsistent with such an admission, the Supreme Court, in Sushil Kumar v. Rajesh Kumar , held as follows:
73. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order 8, Rules 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidences adduced on behalf of the appellant in this behalf in denial but merely rejected the same summarily stating that vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be paid.
30. The Supreme Court, in Lohia Properties (P) Ltd. v. Atmaram Kumar , too has held as follows:
13. Order 8, Rule 5(1) reads 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 provided otherwise than by such admission.
14. What is stated in the above is, what amounts to admitting a fact on a pleading while Rule 3 of Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth.
15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.
16. From the above findings, it is clear that the plaint categorically stated in paragraph 7 as under:
That the said late Ramprit Kumar, the father of the defendant 1 having defaulted to pay rent of the said land having become defaulter under the Assam Urban Area Rent Control Act and having sublet the land and the plaintiff having required the said land for their own use and occupation after construction of buildings thereon, the plaintiff through their lawyer Shri C.C. Chakrabarty, B.L. Pleader, Dibrugarh, served the said late Ramprit Kumar, the father of defendant 1 with a notice of ejectment dated January 8, 1965 through Regd. AID post requiring the said late Ramprit Kumar, the father of defendant 1 to quit, vacate and deliver up vacant possession of the said land on the expiry of the 28th day of February, 1966 after removal of the temporary structures therefrom. The said, notice of ejectment was duly delivered and served upon the said late Ramprit Kumar, the father of defendant 1 and copy of the said notices were also sent to the pro forma defendants 2,3,4 and 5. The true copy of the said notices and the postal receipt and the AID receipt are filed herewith and marked as plaintiff's documents Nos. 1, 2 and 3.
17. The answer to this is in paragraph 5 of the written statement to the following effect:
That the notice of ejectment as referred to in para 7 of the plaint is not according to law.
18. Certainly it is a case to which Order 8 Rule 5 was attracted. It is unnecessary to examine the question as to where a judicial admission could be permitted to be withdrawn or retracted.
19. Non-traverse would constitute an implied admission. In the facts of this case the findings of the trial court and that of the first appellate court could be upheld on this admission. Thus, we find the High Court was wrong in interfering with this finding. Accordingly, the appeal will stand allowed. No costs.
31. Coupled with the above, it needs to be emphasized that when the tenancy, in question, was, admittedly, monthly tenancy, the rent would be payable at the end of the month unless, otherwise, agreed upon by the parties concerned. Viewed from this angle too, it is clear that the tenancy, in the present case, being a monthly tenancy, the rent, in the absence of anything showing to the contrary, was payable at the end of every succeeding month according to the English calendar.
32. While the present revision was pending, the plaintiffs filed an affidavit averring to the effect, inter alia, that during the pendency of the suit, the defendants did not pay rents within the due date in respect of the months of January, 1988, February, 1988, June, 1988 and December, 1988, for, the rents in respect of the months of January, 1988, February, 1988, June, 1988 and December, 1988, were deposited in the Court, on 07.03.88,29.03.88,11.08.88 and 03.02.89, respectively.
33. While responding to the affidavit, so filed, the defendants denied that they had not deposited the rents within time. What is, however, crucial to note is that the defendants did not boldly and stoutly deny that the dates of deposit of rents, as averred by the plaintiffs, are incorrect or untrue. Necessarily, therefore, the implication is that the fact that rents for the months of January, 1988, February, 1988, June, 1988, and December, 1988, were deposited in the Court, on 07.03.88, 29.03.88, 11.08.88 and 03.02.89, respectively stands admitted and proved on record.
34. It has been agitated, as already indicated above, on behalf of the defendants-opposite party, that without amending the plaint, it is not possible to bring any new material on record. True it is that subsequent development needs to be, ordinarily, brought by way of amendment of the pleadings; but in a given case, when the evidence on record itself proves a fact, amendment of the plaint is not necessary or else, for every defaulter in making deposit of rent within the due date in the Court during the pendency of a suit, the plaint would necessarily require amendment again and again. This will make a mockery of the entire judicial process and a tenant can defeat a suit by contending that the fact that subsequent to the institution of the suit, he has not deposited rent, though available on record, cannot be taken into account as the plaint has not been suitably amended. In the present case, deposit of rent by challans stands proved on record inasmuch as Exhibit Ka series reflect that the rent for the months of February, 1988, December, 1988, June, 1988, and January, 1988, were deposited in the Court on 07.03.88,29.03.88,11.08.88 and 03.02.89, respectively. Such glaringly noticeable pieces of evidence cannot be ignored merely by contending that the plaint was not amended in order to bring on record deposit of challans.
35. It is clear from Exhibit Ka series that save and except on four distinct occasions. Thus, except in respect of the rents for the months of January, 1988, February, 1988, June, 1988 and December, 1988, the defendants, while depositing rent in the Court, proceeded on the premises that the rent is payable within the first week of every succeeding month according to the English calendar, for, except the said four occasions, each month's rent was deposited according to English calendar within the first week of every succeeding month. This conduct of the defendants, even during the pendency of the suit, leaves no room for doubt that the rent was payable within the first week of every succeeding month according to the English calendar. As the defendants had failed to deposit rent for the month of December, 1983, the defendants were nothing, but defaulter. It is settled position of law that even if a tenant defaults in payment of rent during pendency of a suit, the tenant is liable to be evicted. (See Abdul Matin Choudhary v. Nilayananda Dutta reported in 1997 (2) GLT 590, and Shova Biswas and Ors. v. Ranjit Lodh reported in 2006 (1) GLT 479).
36. What needs to be borne in mind is that the evidence has to be adduced by the parties either in proof of disproof of facts stated in the pleadings. When the foundation for a piece of evidence has not been laid in the pleadings, such evidence is of no avail. Hence, no amount of evidence was of any avail to the defendants, when they had not specifically denied that the tenancy was a monthly tenancy and that the rent was to be paid within the first week of every succeeding month according to the English calendar. Even assuming that on some occasions, the landlord had received rents, when he so wished, for two months, at a time, this cannot change the fact that the due date of payment was first week of every succeeding month according to the English calendar. These aspects of the case appear to have escaped notice of the learned appellate Court and when these aspects are taken into account, there remains no escape from the conclusion, as already indicated above, that the defendants were defaulter and liable to be evicted from the suit premises.
37. Because of what have been discussed and pointed out above, this revision succeeds. The impugned judgment and decree, dated 28.07.2000, passed by the learned appellate Court, are hereby set aside. The decree, passed by the learned trial Court, shall accordingly stand restored.
38. With the above observations and directions, this revision shall stand allowed with costs.
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