Bapna, J. - (1.) THIS is a second appeal in a suit for recovery of Rs. 475/- on a Khata. The defendant respondent did not put in appearance and the plaintiff was called upon to produce ex parte evidence. The plaintiff did so and closed his case. The trial court came to the conclusion that the execution of the Khata by the defendant was not proved and it dismissed the suit and the same judgment was upheld on appeal.
(2.) IN this Court it was* argued that as the defendant failed to put in appearance and to deny the allegations of the plaintiff in the plaint, he should be deemed to have admitted the allegations of the plaintiff by virtue of the provisions of Order 8 Rule 5 of the Code of Civil Procedure. IN support of this argument, reliance was placed on 1928 Nag. 165. With great respect I am unable to agree to this view of the law. Order 8 Rule 5 reads as under: - "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. " According to the plain reading of the above rule, the presumption arises only when a written statement is filed and in that written statement the defendant does not deny any allegation specifically or by necessary implication or state that it is not admitted. If the written statement is not filed, this rule does not come into play. In a case where defendant does not appear to answer the suit, there is of course no pleading by the defendant. The view taken by me is supported by a Full Bench decision of the Calcutta High Court reported in (I. L. R.) 43 Calcutta 1001 which has been followed in 1928 Lah. 769, 1942 Pat. 226 and 1944 Sind 61. I am aware that a contrary view has been taken by the Bombay High Court in 1936 Bom. 285. In my opinion, the view taken in the Calcutta case above referred to is the correct one to be followed in Rajasthan. In the Bombay case Beaumont C. J. sounded a note of caution that in this country where false suits are not unknown, it would be useful to exercise the power given in the proviso to Rule 5 while holding that its provisions were applicable when the defendant did not file any written statement. . It was next contended that where a plaintiff is called to lead ex parte evidence, it is the duty of the Judge to warn the plaintiff if the evidence which the plaintiff produces, is, in the opinion of the Court, not sufficient to establish his case. Reliance was placed on 1948 Nag. 168. It is interesting to observe that in this case Bose J. did not subscribe himself to the opinion of Halifax A. J. C. who decided the case in 1928 Nag. 165. The observation relied upon is that in cases in which proceedings are taken ex parte against the defendant, the Judge should tell the plaintiff how much evidence he requires. With great respect, I am unable to subscribe to this view. This will place the Judge in a position of an adviser to the party which is not authorised by law. Unless a Judge cuts out or stops the evidence of the plaintiff, it is the duty of the plaintiff to produce all such evidence as he considers will prove his case. On the merits the case was not argued and rightly so because the two courts have come to a concurrent finding that the plaintiff has failed to prove the Khata which formed the basis of the suit. This appeal fails and is dismissed. No order as to costs as the defendant has not put in appearance. .;