STATE OF KARNATAKA Vs. HEMARAJ ACHALCHAND

JUDGEMENT

(1.) This appeal is by the State of Karnataka and is directed against the decree dated 17.1.1974 decreeing respondent-plaintiffs suit for recovery of Rs. 30,110.35, together with interest and costs, said to be the price of goods supplied to the appellant-defendant.

(2.) The suit stood posted to 17-1-1974 for the appearance of the defendant and settlement of issues. Appellant-defendant was served with the summonses in the suit on 3.1.1974. On 17.1.1974 defendant failed to appear and the suit was decreed. The note in the order sheet reads: "Defendent absent. Placed exparte. Suit decreed as prayed for."'

(3.) This appeal requires to be allowed on a short-point. Order VIII Rule 5(1) C.P.C. provides that any allegation of fact in the plaint, if not denied specifically . or by necessary implication or atleast stated to be not admitted in the pleading of the defendent, shall be taken to be admitted. This provision deals with a case where a written statement is filed but does not "Traverse" an allegation of fact either expressly or by necessary implication or does not even stated that the allegation is not admitted. Rule 5(2), which deals with a. situation where no written statement is at all filed, provides that it shall be lawful for the court to pronounce judgement on the basis of facts contained. in the plaint. However, in both cases, where an allegation of fact is taken to be admitted by non-traverse or where, in the absence of the filing of a pleading by the defedant, court can act upon the allegations of fact contained in the plaint, the court has the discretion to call for proof of the allegations independently of the admission by non-denial.