Suresh/Surekha
Kakodkar merely denied paragraphs 1 and 2 of the plaint in
Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3
of Order VIII of the Code Civil Procedure provides that it shall
not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he
does not admit the truth, except damages. Rule 4 of Order VIII
provides that where a defendant denies allegation of fact in the
plaint, he must not do so evasively, but answer the point of
substance. The rule further says that if it is alleged that the
defendant received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof or else
set out how much he received and if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Then, rule 5(1) of Order VIII provides
that 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 the person under disability, provided
that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission. In view of the
above provisions of C.P.C., the finding of the learned First
Appellate Court, in Regular Civil Appeal No. 21/2004 that
Suresh/Surekha Kakodkar had not challenged the co-ownership
of Karmalis and Prabhu Dessai in respect of the suit property
bearing Survey No. 143/1 of village Kakora, cannot be said to be
erroneous. Besides the above, the names of Karmalis and
Prabhu Dessai were figuring in Form No. III of survey No. 143/1.
Therefore, it is a fact that the issue no. 1 as to whether the
plaintiffs prove that they are co-owners of the property bearing
Survey No. 143/1, as framed by the Trial Court, in Regular Civil
Suit No. 211/2000, did not arise as it had to be deemed to be an
admitted fact that the plaintiffs are co-owners of the suit
property. Be that as it may, Karmalis and Prabhu Dessai had
produced sufficient oral evidence on record to prove their coownership,
in respect of survey no. 143/1.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEALS NO. 3 of 2005 and 9 of 2009
SECOND APPEAL NO. 3 of 2005
Shri Suresh Kakodkar,
Versus
Shri Vinayak Gopinath Naik
Karmali
CORAM :- U. V. BAKRE, J.
Pronounced on : 4 th July, 2014 .
Citation; 2015(3) ALLMR614
Print Page
Kakodkar merely denied paragraphs 1 and 2 of the plaint in
Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3
of Order VIII of the Code Civil Procedure provides that it shall
not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he
does not admit the truth, except damages. Rule 4 of Order VIII
provides that where a defendant denies allegation of fact in the
plaint, he must not do so evasively, but answer the point of
substance. The rule further says that if it is alleged that the
defendant received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof or else
set out how much he received and if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Then, rule 5(1) of Order VIII provides
that 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 the person under disability, provided
that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission. In view of the
above provisions of C.P.C., the finding of the learned First
Appellate Court, in Regular Civil Appeal No. 21/2004 that
Suresh/Surekha Kakodkar had not challenged the co-ownership
of Karmalis and Prabhu Dessai in respect of the suit property
bearing Survey No. 143/1 of village Kakora, cannot be said to be
erroneous. Besides the above, the names of Karmalis and
Prabhu Dessai were figuring in Form No. III of survey No. 143/1.
Therefore, it is a fact that the issue no. 1 as to whether the
plaintiffs prove that they are co-owners of the property bearing
Survey No. 143/1, as framed by the Trial Court, in Regular Civil
Suit No. 211/2000, did not arise as it had to be deemed to be an
admitted fact that the plaintiffs are co-owners of the suit
property. Be that as it may, Karmalis and Prabhu Dessai had
produced sufficient oral evidence on record to prove their coownership,
in respect of survey no. 143/1.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEALS NO. 3 of 2005 and 9 of 2009
SECOND APPEAL NO. 3 of 2005
Shri Suresh Kakodkar,
Versus
Shri Vinayak Gopinath Naik
Karmali
CORAM :- U. V. BAKRE, J.
Pronounced on : 4 th July, 2014 .
Citation; 2015(3) ALLMR614
