BHURALAL Vs. KANSINGH

JUDGEMENT

(1.) THIS is a second appeal in a suit for recovery of Rs. 475/- on a Khata. The defendant respondent did not put in appearance and the plaintiff was called upon to produce ex parte evidence. The plaintiff did so and closed his case. The trial court came to the conclusion that the execution of the Khata by the defendant was not proved and it dismissed the suit and the same judgment was upheld on appeal.

(2.) IN this Court it was* argued that as the defendant failed to put in appearance and to deny the allegations of the plaintiff in the plaint, he should be deemed to have admitted the allegations of the plaintiff by virtue of the provisions of Order 8 Rule 5 of the Code of Civil Procedure. IN support of this argument, reliance was placed on 1928 Nag. 165. With great respect I am unable to agree to this view of the law. Order 8 Rule 5 reads as under: - "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. "