Whether the tenant can deny that he was a tenant of the plaintiff after accepting his tenancy?

The main emphasis of learned counsel for the petitioner is upon the maintainability of the writ petition. To proceed with to decide this issue, it is necessary to record here that it is undisputed that the petitioner has accepted his tenancy before the prescribed authority as well as appellate authority. It is also undisputed that in capacity of tenant, he has also filed Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav) under Section 30 of the Act, 1972, which is still pending.

42. It is not the case that petitioner has raised a pure legal issue before the Court. In fact, he had taken a plea accepting the tenancy and contested the case, but after loosing the same before the Prescribed Authority and Appellate Authority taking U-turn, he has taken entirely different plea which was earlier never raised. Apart from that, undisputedly, he is enjoying privilege of tenant by filing Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav) under Section 30 of the Act, 1972, which is still pending. Therefore, in light of such facts, conduct of the petitioner cannot be appreciated and he can not be permitted to take benefit of his own wrong.

44. In the matter of S.U. Ashram (supra), the Court was also of the same view and held that the objection of the learned counsel for the petitioner is not acceptable only for the reason that he has admitted landlord-tenant relationship in his written statement. The Apex Court in the case of Heeralal (supra) has stated that amendment sought in the written statement was of such nature as to displace the plaintiff's case could not be allowed. In the matter of Nagindas Ramdas (supra), the Apex Court has again taken very same view and held that admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleading or judicial admissions, admissible under Section 58 of the Evidence Act, 1872 made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The Court again in the matter of Thimmappa Rai (supra) has taken the same view relying upon the Section 58 of the Evidence Act, 1872 and held that any admissions made by the party to the suit in earlier proceeding are also admissible against him.

46. After going through the facts of the case and law laid down by the Apex Court as well as this Court, it is very much clear that the petitioner tenant has never disputed tenancy and also filed Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav), under Section 30 of the Act, 1972 in the capacity of tenant, therefore, he cannot be permitted to take new plea in light of law discussed above and further no denial of tenancy is required by the landlord-respondent in light of Section 58 of the Evidence Act, 1872.

47. Considering the judgments of Apex Court as well as this Court, it is very much clear that petitioner has never raised this issue before the Prescribed Authority or Appellate Authority, where it could be proved by placing evidence whether he is tenant or not, therefore, he cannot be permitted to raise this issue before the High Court in the writ petition. The contention of the learned counsel for the petitioner is also not acceptable that he has raised the issue in the written statement that tenancy is continued from 1960, which was not denied by landlord-respondent in light of Section 58 of Evidence Act. Once the tenancy is accepted, there was no need to landlord to deny the same as the facts admitted need not be proved.

48. Alternative argument of learned counsel for the landlord-respondent is also having force where he has stated that in case petitioner is not the tenant, then he has no authority to maintain this writ petition as he is not the aggrieved person. There is no doubt that once the petitioner is accepting that he is not tenant and his father is tenant then, he has no right to file this writ petition, only his father could invoke this remedy or any other remedy available under the law. Therefore, in that case, this writ petition would not be maintainable in light of law laid down by the Apex Court as well as this Court and the Court cannot grant any relief in favour of petitioner.

IN THE HIGH COURT OF ALLAHABAD

Writ A. No. 20793 of 2019

Decided On: 20.08.2020

Prakash Chandra  Vs.  Ritesh Bhargawa

Hon'ble Judges/Coram:

Neeraj Tiwari, J.

Citation: MANU/UP/1404/2020

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Whether court can insist on plaintiff to prove his case if it can not allow withdrawal of implied admission in a written statement?

What is important to note is that the proviso to Rule 5 gives to the Court the power to insist that notwithstanding the fact that there is an implied admission, because of non-traversing of a fact, the plaintiff proves his statement by adducing evidence. The exercise of this discretion cannot be arbitrary and the Court may have to bear in mind the standard of drafting obtaining at the place, where the suit is instituted. Thus, in a given case, when the counsel's default leads to an implied or express admission, the remedy of the defendant does not lie in withdrawing the admission by making amendment in the written statement, but in making out a case for the Court to exercise its powers under the proviso to Rule 5 of Order 8 and insist upon the plaintiff to prove his case notwithstanding the admission - implied or express - made in the written statement. In the case at hand too, if the learned trial Court finds that non-traversing of the statements made in paras 3 and 15 to 19 of the plaint have been impliedly admitted by the defendant and still if the defendant satisfies the learned trial Court that such admission was due to fault of his earlier counsel, the Court may, if satisfied, insist on the plaintiffs, to prove the statements made in paras 3 and 15 to 19 of the plaint.

36. Coupled with the above, it is pertinent to note that apart from the fact that Order VIII, Rule 5 permits the Court to insist on a plaintiff to prove a fact notwithstanding an implied admission, which the defendant might have made, even Section 58 of the Evidence Act makes it clear that notwithstanding a defendant's admission, express or implied, made in his written statement, a Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

IN THE HIGH COURT OF GAUHATI

Decided On: 30.10.2006

Uttam Chand Kothari Vs.  Gauri Shankar Jalan and Ors.

Hon'ble Judges/Coram:

I.A. Ansari, J.

Citation: AIR 2007 Gau 20, 2007 (1) GLT 37, MANU/GH/0209/2006

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What is doctrine of implied admission in arbitration proceeding?

 By a letter dated 28th October,2009 the minutes of the above meeting held on 20th October,2009 were forwarded to the Appellant's Chief Manager and Secretary, by the Respondent. Thereafter, this letter alongwith the minutes of the meeting were forwarded by the Deputy Manager (Legal) of the Appellant to Mr.S.K.Kaul, Chief Manager (Admn) & Secretary, to Mr.D.S.Garde, Senior Manager (CT) and to Mr.B.V.Rao, Manager (Finance) and same was duly received by them. Things did not stop at this, but further correspondence was exchanged between the parties on the basis of this meeting. All these documents formed part of the record before the learned Arbitrator in the additional affidavit of evidence filed on behalf of the Respondent. As can be seen from the record admittedly these were subsequent developments which had taken placed during the pendency of the arbitration proceedings. It is, thus, not  the case that these documents could be placed on record before the learned Arbitrator at the threshold, alongwith the statement of claim.

Further, the Appellant did not in any manner dispute these documents as placed on record in the additional affidavit of evidence as filed on behalf of the Respondent. Admittedly at no point of time, till the arbitration proceedings were closed, for an Award to be delivered, the Appellant neither disputed the minutes of the meeting and the settled claim as offered to be paid on behalf of the Appellant. Further at no point of time an opportunity to cross examine the witness of the Respondent was sought for by the Appellant. If this be the case, then, in our opinion, it was not in any manner inappropriate for the learned Arbitrator to proceed to decide the dispute on the basis of these facts which stood uncontroverted. The minutes of the meeting dated 20 th October,2009 and the correspondence in relation thereto which includes even internal letters of the Appellant, remain uncontroverted and the facts contained therein being not disputed became available to the learned Arbitrator for pronouncing the Award. We, thus, do not find any substance in the contention as urged on behalf of the learned Counsel for the Appellant that in the fact situation there was a burden on the Respondents to prove these documents and/or that the Respondent has failed to discharge the said burden namely to prove the said minutes of the meeting, and the correspondence in relation thereto and thus these documents were not admissible in evidence. In our opinion, the submission is wholly unfounded as it is clear from the facts of the present case, that the Appellant never disputed the affidavit of evidence alongwith the annexed documents. The Appellant's contention cannot be accepted also for the reason that the Appellant did not, in any manner known to law, controvert the deposition as contained in the additional affidavit of evidence of the Respondents and/or sought an opportunity to cross examine the deponent and/or disputed any of the documents which were annexed to the same and which were part of the record before the learned Arbitrator. What could therefore be clearly inferred by the learned Arbitrator, was the admission of these facts by the Appellant. Non traverse of these facts clearly makes applicable the doctrine of implied admission as would flow from Section 58 of the Evidence Act. Further it is also not a case that the Appellant has placed on record any evidence to the contrary. Thus it is a case where the principles as contained inSection 58 of the Indian Evidence Act would get clearly attracted being one of the basic rules of evidence. The learned Arbitrator had correctly proceeded on the ground that the Appellant had admitted the facts in regard to the minutes of meeting dated 20th October,2009 and the documents in relation thereto.

Bombay High Court

Jawaharlal Nehru Port Trust vs Ornate Multi Model Carriers Pvt. ... on 5 July, 2016

CORAM : ANOOP V. MOHTA & G.S. KULKARNI, JJ.

Citation:2016(6) MHLJ742

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When execution of will can be proved without examining attesting witness?

In Thayyullathil Kunhikannan (supra) a Division Bench of the Kerala High Court while considering the provisions of Sections 58 and 68 of the Evidence Act as to the requirement to call an attesting witness, held--

Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence. Order 8 Rule 5 C.P.C. deems the execution of the Will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the Will.

Andhra High Court

Darisi Masthanamma vs Mandiga Rama Krishna on 24 January, 2006

Equivalent citations: AIR 2006 AP 286, 2006 (2) ALD 534

Bench: S A Reddy

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Whether a fact which is not disputed in cross examination will be deemed to be admitted fact?

The 
acceptable   mode   of   proof   would   be   the   death   certificate   issued   by   the 
municipality.  The plaintiff has not shown why the application for issue of a 
death   certificates   of   the   three   attesting   witnesses   is   not   made.     Merely 
stating that the witnesses are not alive and cannot be found is, therefore, 
not sufficient.  Mr. Shah would argue that the statement of the plaintiff that 
the attesting witnesses have died has not been disputed by the defendant 
as there is no cross­examination of the defendant on that score and hence 
it must be accepted as an admitted statement.   Admitted facts which are 
not to be proved under  Section 58  of the Evidence Act which runs thus 
are:
58. Facts  admitted   need   not   be   proved.­   No  fact   need   to  be  
proved in any proceeding which the parties thereto or their agents  
agree to admit  at the hearing, or which, before the hearing,  they  
agree to admit by any writing under their hands, or which by any  
rule   of   pleading   in   force   at   the   time   they   are   deemed   to   have  
admitted by their pleadings:
Provided   that   the   Court   may,   in   its   discretion,   require   the  
facts admitted to be proved otherwise than by such admissions.

The facts not required to be proved would, therefore, be the facts 
mentioned in the pleadings of the parties or in the documents of the parties 
or specifically which were agreed to be admitted at or before the hearing in 
writing.     They   may   be   facts   which   are   specifically   admitted   in   the   oral 
evidence of the parties.   Merely because a fact has not been disputed by 
cross­examination of a party would not make it an admitted fact such as 
not requiring it to be proved under Section 58 of the Evidence Act. 
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 46 OF 1993
IN
TESTAMENTARY PETITION NO. 2 OF 1993

Smt. Usha Shrikant Rege  Vs. Smt. Gauri Gajanan Rege

CORAM :  MRS. ROSHAN DALVI, J.

Date of pronouncing the Judgment:  15   SEPTEMBER, 2014

Citation;2014(6) MHLJ 781Bom,2016(1) ALLMR801

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