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2014 DIGILAW 3540 (ALL)

Guru Singh Sabha v. Jaspal Singh Dudeja

2014-11-27

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. Heard Sri M.M.D. Agrawal, learned counsel for the plaintiff revisionist. No one has appeared for the respondents even though service of notice upon him was deemed to be sufficient vide order dated 6.5.2014. 2. The plaintiff revisionist has come up in this revision against the judgment and order dated 30.7.2009 passed by the Additional District Judge in exercise of powers of Small Causes Court dismissing SCC Suit No. 7 of 2007 ( Sri Gurusingh Sabha Gurudwara Vs.Jaspal Singh Tudeja). 3. It appears that the plaintiff revisionist instituted a suit for arrears of rent and eviction of the respondent from the shop in question. The suit has been dismissed on the ground that the plaintiff revisionist has failed to prove the relationship of landlord and tenant between the parties. 4. The submission of Sri Agrawal, learned counsel for the plaintiff revisionist is that the suit had proceeded ex-parte against the respondent. He had not appeared and had not filed any written statement denying the plaint allegations. In the plaint it was categorically stated that the shop in dispute was let out by the plaintiff revisionist to the father of the respondent and as such he is a tenant therein. Thus, the court below could not have dismissed the suit on the ground that the relationship of landlord and tenant was not proved. 5. A bare perusal of the impugned judgment and order reveals that there was no contest in the suit and that the respondent had not filed any written statement. In paragraph 5 of the plaint the plaintiff revisionist has pleaded about the relationship of landlord and tenant between the parties. This fact remained un-controverted. The plaintiff revisionist had also filed an affidavit on the directions of the Court and the aforesaid fact was reiterated therein. This affidavit also remained un-controverted. 6. In view of the above, the plaint allegations which were supported by the affidavit of the plaintiff respondent were not denied by the respondent. Accordingly, there was no issue with regard to relationship of landlord and tenant between the parties arises in the suit. 7. This affidavit also remained un-controverted. 6. In view of the above, the plaint allegations which were supported by the affidavit of the plaintiff respondent were not denied by the respondent. Accordingly, there was no issue with regard to relationship of landlord and tenant between the parties arises in the suit. 7. Order 8 Rule 5 CPC provides that every allegation of fact made in the plaint, if not denied or stated to be not admitted in the pleading of the defendant shall be taken to be admitted though the Court may in its discretion require the said fact to be proved otherwise than by such admission. 8. In view of the above, as the factual averment regarding relationship of landlord and tenant between the parties as contained in the plaint was not denied by the respondent, it stood admitted. Once the said fact pleaded was admitted to the parties, there could have been no issue on the said aspect which may require any proof. The court below had not passed any order requiring the plaintiff revisionist to prove the said fact by evidence other than the admission of the parties. 9. Sri Agrawal submits that even if the Court wanted the said aspect of the matter to be proved, it ought to have given an opportunity to the plaintiff revisionist to prove it otherwise. No such opportunity was accorded to the plaintiff revisionist. 10. In view of the aforesaid facts and circumstances, the impugned judgment and order dated 30.7.2009 can not be sustained in law. 11 .Accordingly, the said order is set aside and the matter is remanded to the court below for decision afresh in accordance with law. 12. It is expected that the court below will proceed to decide the matter in accordance with law as expeditiously as possible preferably within a year from the date of production of the certified copy of this order. 13. The revision is allowed. No costs.