KRISHNARAO GANPATRAO CHOPKAR Vs. BHAWARILAL SATYANARAYAN

JUDGEMENT

(1.) BY judgment impugned in this revision, the Small Causes Court dismissed the suit of the applicant/landlord to recover possession from non- applicants/tenants. The precise reasons for dismissal are :

(2.) WHILE questioning the correctness of the impugned judgment, it is pointed out that the applicant issued notice dated 9.12.1983 (Exh. 53) terminating the tenancy with effect from 31.1.1984. However, during trial, applicant could not produce postal acknowledgement indicating that notice was served on non-applicants before 15 days of expiry of the tenancy month. Undisputely, non-applicants received the notice. They replied on 1.2.1984 vide Exh. 55, wherein, inter alia, they stated that notice is not in conformity with section 106 of the Transfer of Property Act. However, they have not given the date of receipt of notice. Moreover, they have not produced the postal envelope containing the notice in response to notice served on them pursuant to Order XI, Rule 16 of the Code of Civil Procedure. The question relating to service of notice in compliance with section 106 was to be adjudged on the pleadings of the parties.

(3.) SHRI Manohar then placed reliance on a decision in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati, AIR 1965 364. The Supreme Court reasserted the golden rule that Court can ignore admission in pleading as a rule of prudence when there is even a marginal possibility of collusion. In the present case, there was no possibility of the parties colluding with each other. It being a litigation between landlord and tenant, they were on cross terms for all purposes to defend their claim. Absence of specific denial or evasive reply was not accidental or motivated. As such, in terms of sub-rule (1) of Rules 5 of Order VIII of the Code, the Court ought to have taken the same as having admitted the averments in the plaint. The Supreme Court in the decision cited supra, has observed that -