KALLURI BHAGAVANTHU Vs. KALLURI MARAIAH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned Subordinate Judge, Nalgonda in O. S. No. 48 of 1977.

(2.) Defendants 1 to 3 are the appellants. The judgment of the learned Subordinate Judge is very cryptic and reads as under :

(3.) The suit was filed for partition of the plaint schedule properties and for a declaration that the plaintiffs, defendant No. 1, defendant No. 2 and defendants 4 to 6 together have got 115/160th, 38/160th, 1/160th and 6/160th share respectively in the plaint B schedule lands. At the very outset it can be noted that it is not necessary for us to go into the allegations made by the parties for the purpose of disposal of this appeal as no written statement was filed in the suit. The learned Subordinate Judge referred to Order 8, Rule 5 (2), C. P. C. in his order while decreeing the suit. Order 8, Rule 5 (2) reads as under : "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." The above sub-rule was inserted by Amendment Act of 1976 and it has to be read keeping in view Sub-rule (1) of Rule 5 which is as follows.- "Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not ad-mitted 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." Rule 5 (1) envisages that if a fact is not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, it shall be taken to have been admitted. Therefore, the circumstances have to be narrated under which the pleadings in the plaint were taken to have been admitted even though the proof of the same was not required to be made unless the Court further wanted the fact to be proved.