NAGAPPA Vs. SIDDALINGAPPA

JUDGEMENT

(1.) The suit was instituted by the 1st respondent in this appeal in order to recover a certain sum of money under a mortgage deed against the appellants who are minors and who were represented in the suit by their guardian. The first question argued before us is that there was no proof as to the proper execution of the mortgage deed and its attestation according to law. But the defendants appeared by a pleader throughout the proceedings, the written statement did not raise any question as to the execution of the mortgage, there was no issue framed with reference to this point, and so far as we can gather from the record, no objection on that score was taken at the time of the trial. The learned pleader for the appellants contends that, in as much as Order VIII, Rule 5 of the Civil Procedure Code says 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," it made it incumbent upon the Court to require proof of the execution of the mortgage before there could be any decree given against the minors, But the scope of Order VIII, Rule 5 is only this, that the omission to deny an allegation of fact in the plaint is not to be taken as an admission in the case of minor defendants, and the rule has nothing to do with the conduct of the suit after rwards. For instance, if at the framing of issues or at the trial the person representing a minor defendant admits certain allegations of fact it cannot be said that Rule 5 in any way affects such admission. What the legislature apparently contemplated by Rule 5 was that if, for instance, the guardian of a minor defendant allowed a case to proceed ex parte then the plaintiff must prove those facts alleged in the plaint which were not expressly denied in the written statement filed on behalf of the minor defendant. In the case of a defendant who is a major an ex parte decree could be based not only on facts expressly admitted in the written statement but also on those allegations of fact in the plaint which are not denied in the written statement. Here what happened was the pleader appearing for the defendant stated that he did not want to adduce oral evidence in the case; so also did the pleader for the plaintiff. Then certain documents relevant to the issues raised were filed and apparently no objection was taken as to their admissibility and they were marked as exhibits, we may take it, by consent. The issues that were raised relate to questions of limitation and res judicata and those were the points apparently argued at the trial, We think that we should be perfectly justified in this case in saying that any question as to the execution of the document was waived at the time of the framing of issues and the trial of the suit.

(2.) Our attention has been drawn to certain rulings, -notably to one of the Bombay High Court in Ganoo v. Sri Devsidheswar (1901) I.L.R. 26 Bom. 860 where Mr. Justice Fulton at page 362 lays down that it is : the duty of the Court under the Civil Procedure Code to see that proper issues necessary for the decision of the case are framed. But there the question was as to whether the notice served by the landlord on the tenant in a suit for ejectment was a proper one, and as proper notice was a part of the cause of action it was held to be the duty of the Court to see whether in the plaint the cause of action was properly stated and it was proved at the trial. The proposition, however, as to the duty of the Court to raise proper issues is laid down in broad terms. But we do not think that it was intended to lay down that upon questions of fact it is the duty of the Court, even though the party in whose interest it is to raise the necessary issue does not choose to do so, to frame such issues of its own motion. Any general proposition of that character would in our opinion be subversive of proper conduct of cases, and we are unable to assume that the learned Judges of the Bombay High Court intended to lay down any such rule, On the other hand we agree with the ruling of this Court in Ponnusamy Pillai v. Pasupathi Mudaliar (1909) 7 M.L.T. 107 where it is laid down that an omission to raise an issue on a question of fact implies an abandonment of that question by the party interested. No doubt, where the question is one purely of law such as limitation or jurisdiction it is incumbent on the Court to frame proper issues on such questions, but it would not be safe to extend any such rule to issues of fact. We, therefore, overrule this objection raised by the Appellants pleader.

(3.) The next contention in the appeal relates to the admissibility of Exhibit D which is a deposition of the present guardian of the appellants in a former suit. The defendants pleader apparently consented to Exhibit D being admitted in evidence and the statement contained therein which amounts to an admission saving limitation could have been proved if the guardian had been called. It was open to the pleader for the defendants to dispense with any such proof. We therefore do not think that there,is any force in this objection either.