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1986 Supreme(AP) 74
Andhra Pradesh High Court
Judges : P.KODANDA RAMAYYA
KASTURI VENKATA SUBRAHMANYAM - Appellant
Versus
KODUKULLA KRISHNA MURTHY - Respondent
C. R.P. No. 1397/84
Decided On : 02-07-86
Advocates Appeared :
M. S. K. Sastry,Mr. C. Trivikrama Rao
Headnote:CIVIL PROCEDURE CODE, Order 8, Rule 5 and Order 12 Rule 6 as amended by Act 104 of 1976 - Relative scope and applicability Suit on the foot of promissory note - Admission made by defendant in written statement - Order 12, Rule 6 is applicable but not Order 8 Rule 5 - Decree can be passed on positive admission in written statement
Held: If there is a total omission on the part of the defendant the file a written statement it can be construed as an admission and a judgment may follow under Order 8 Rule 5 as treating the omission to traverse constitutes an admission But when a written statement is filed and a positive admission is made either in the pleading or otherwise either orally or in writing during the course of trial a judgment will follow on the basis of admission, Under Order 8, Rule 5 the law presumes admission due to omission to file a written statement and under Or 12 Rule 6 a positive admission is required either in the pleading or orally or in writing for passing a judgment on admission Once written statement is filed the admission must be found in the written statement, it is Order 12, Rule 6 that is attracted but not Order 8 Rule 5 When the written statement is filed the plaintiff can seek a decree if there is an admission in the written statement under Order 12 Rule 6 and other admissions falling short of admitting the claim of the plaintiff would only facilitate of the issues applying strictly the rule of traverse
In this case the decree can validly be passed on admission as the statement is positive
( 1 ) THIS revision raises the relative scope of Order 8 Rule 5 C. P. C. and order 12 Rule, 6 C. P. C.
( 2 ) THE plaintiff filed a suit on the foot of three promissory notes, two executed on 29-4-1979 and one on 7-7-1978 by. the defendant, After the. , written statement is filed the plaintiff requested, the court to pass an. , interim decree for Rs. 15,200/- at 5 1/2% interest taking into account the admissions by the defendant in the written statement. The court below took the view that Order 12 Rule 6 C. P. C has no application, but Order 8 Rule 5 C. P. C. applies to the facts of the case and passed an interim decree for Rs. 15,200/- this revision is filed against this order challenging the order of the court below passing an interim decree.
( 3 ) ORDER 8 Rule 5 and Order 12 Rule 6 C. P. C. are amended by act 104 of 1976, The respondent is not represented by a counsel, requested Sri C. Trivikramarao to assist me and he readily did so. I place on record my appreciation of his assistance to the court.
( 4 ) THE court below took the view that the prayer for passing of decree under Order 12 Rule 6 C. P. C. is not proper but it is Order 8 Rule 5 c. P. C. that applies. It is necessary to examine the relative scope of these two provisions. Order 8 Rule 5 embodies what is called rule of traverse that corresponds to English provision in Order 18 Rule 13. The main object of the rule as observed by Jessel, M. R. in Thorp vs. Ho dsworth is: "to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite issue, and so diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing. " Rule 5 before this amendment reads as follows:"rule 5 (d) 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. ""new:- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in thepleading 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. (2) 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, as against a person under a disability, but the court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. "
( 5 ) IT is seen that sub-rules 2 to 4 are added and new. sub-rule (1) is substituted for the old one. The Law Commission in its Fifty-Fourth. Report expressed the opinion on this question stating:"under Order 8, Rule 5, an allegation of a fact made in the plaint, if not denied, or not stated to be not admitted in the pleading of the defendant, is to be taken as admitted. Whether this rule applies in a case where the defendant has not filed a pleading at all is a question that was considered in the earlier Reports. No amendment to the rule was, however, proposed, as it was felt that on the language of the rule, it should not apply to such. However, we are taking a different view on the subject, and are of opinion that. such a provision should be made. If the defendant does not file a pleading, the Court should have a discretion to treat the allega
