Abbas vs Abbas and Others (Imam, J.)
ABBAS AND OTHERS
COURT OF APPEALIMAM. J •
C. GAM PAHA 42449/MNFEBRUARY, 24, 2004
Civil Procedure Code – Sections 75(d), 146(1), 184 Admissions – Provisions ofSection 75 – are they imperative ? Should Defendant admit or deny avermentsin Plaint ?-Defendent putting the plaintiff to strict Proof to Avevments ResultingPosition ?
Before the commencement of the trial the Plaintiff petitioner took up theposition that as the Defendant Respondent had not denied the averments inparagraphs 5-24 of the plaint that the Defendant Respondent must be deemedto have admitted the averments and moved that judgment be entered in plain-tiff-petitioners favour. The Trial Court disallowed the application, to recordthese averments as admissions on leave being sought :
i) Section 146(2) of the Civil Procedure Code states that if the parties are atvariance the Court shall record the Issues, An Admission is recordedwhen both sides agree to do so. In this case the recording of Admissionsand Issues have still not begun, the trial proper had not commenced.The defendants have put the Plaintiff/Petitioner to prove the averments inparagraphs 5-24 of the Plaint. It is manifest that the Defendants do notadmit the averments.”
APPLICATION for Leave to Appeal from an Order of the District Court of Gampaha.Cases referred to :
Fernando vs Samarasekera – 49 NLR 285
Uvais vs Punyawathie – 1993 2 Sri LR 46
Hassan vs Iqbal – 2001 – 2 Sri LR at 147
Plaintiff Petitioner in Person.
M.F. Miskin for 1-5th Defendant Respondents
cur. adv. vult.
Sri Lanka Law Reports
(2005) 1 Sri L. ft
June 28, 2004Imam, J.
This is an application for leave to Appeal against the order of theDistrict Judge of Gampaha dated 04.11.2003. The Plaintiff-Petitioner filedaction against the Defendant – Respondents on 15.10.1998 for a sum ofRupees One Million Five Hundred Thousand (Rs. 1,500,000) in the DistrictCourt of Gampaha by way of damages seeking compensation from theRespondents for the damages caused to his married life, amongst otherreliefs claimed in the prayer to the plaint.
At the District Court of Gampaha the Respondents filed answer on18.01.1999, and the case was fixed for trial on 22.08.2003. When thecase was taken up for trial and issues had to be framed, the Petitionertook up the position that as the Respondents had not denied theaverments contained in paragraphs 5 to 24 of the plaint, that the Respon-dents had admitted the aforesaid averments in those paragraphs, ThePetitioner sought to record those averments as Admissions, relying onthe provisions of Section 75(d) of the Civil Procedure Code. The Petitionerin paragraph (d) of the Written Submissions filed by him in this Courtdated 08.03.2004 states that in the District Court “It was then agreedthat a ruling bv the District Court on the said matter be made uponthe tendering of Written Submission by both parties. "The Respon-dents in their answer dated 18.01.1999 filed at the District Court of Gampahastate that they urge the Petitioner to prove the said averments. TheRespondents thus put the burden on the Plaintiff – Petitioner to prove thesaid averments.
Section 75(d) of the Civil Procedure Code reads thus :-
“A statement admitting or denying the several averments of theplaint, and setting out in detail plainly and concisely the mat-ters of fact and law, and the circumstances of the case uponwhich the Dependent means to rely for his defence, this state-ment shall be drawn in duly numbered paragraphs, referring bynumber, where necessary, to the paragraphs of the plaint. ”
Apparently the Respondents in the said answer have not denied theaverments in those paragraphs, but have placed the burden of provingthem on the plaintiff Petitioner.
Abbas vs Abbas and Others (Imam, J.)
The learned District Judge by her order dated 04.11.2003 based onthe written submissions filed by both parlies held that the avermentscontained, in paragraph 6 of the answer of the Defendants do not consti-tute an Admission of the said averments of the plaint; thereby disallowedthe application of the Plaintiff, and fixed the case for trial for 03.03.2004.
The Petitioner in his written, submissions tendered to this Courtcited^Fernando l/s. Samarasekera(1) where Basnayake, J held that underSection 75(d) of the Civil Procedure Code when a Defendant does notdeny an averment in the Plaint, he must be deemed to have admitted thataverment. In that case it was further held that:
“The provisions of Section 75 are imperative and are designedto compel a Defendant to admit or deny the several allegations inthe plaint. So that the questions of fact to be decided between theparties may be ascertained by the Court on the day fixed for hear-ing of the action. A Defendant who disregards the imperative re-quirements of this Section cannot be allowed to take advantage ofhis own disobedience of the statute. To permit such a course ofconduct would result in a nullification of the scheme of our Codeof Civil Procedure.”
It was also urged on behalf of the Petitioner that in Uvais Vs.Punyawathie2 that:
“Section 75 not only requires a Defendant to admit as deny theseveral averments of the plaint, but also to set out in detail, plainlyand concisely the matters of fact and law, and the circumstancesof the case upon which he means to rely for his defence."
The Petitioner further submits in paragraph (p) of his WrittenSubmissions tendered to this Court that Section 184 of the Civil Proce-dure Code states that Court should give judgment upon the Admissionsor upon the Evidence etc. The Petitioner further contends that as theaforesaid paragraphs have been admitted by the Defendants, thatjudgment must be entered in the Petitioner’s favour under Section 184, onthe basis of the said “Admissions." Counsel for the Respondents in hisWritten Submissions filed in this Court referred to the judgement of JusticeWeerasuriya and Justice Udalagama in Hassan vs. Iqbal3 where theirLordships held that:-
Sri Lanka Law Reports
(2005) 1 Sri L. R.
“Though in the English Courts allegations of fact not deniedspecifically or by necessary implication are taken to be admitted,in the Code there is no such provision and the non denial of anallegation is not taken as an Admission of it. ”
This related to a case under the Rent Act, and the question in issuewas whether the condition of the premises had deteriorated due to thedefault and neglect of the Defendant – Respondent (Tenant) within themeaning of Section 22(1) (d). Under Section 184 of the Civil ProcedureCode court should give judgments upon the Evidence or upon AdmissionsAnd after the parties have been heard either in person or by theirrespective Counsel or registered Attorneys. The District Judge of Gampahamade order dated 04.11.2003 only on the preliminary issue, and fixed thecase for trial on 03.03.2004. Hence no Evidence has been led in thiscase so far. The answer of the Defendants (P2) commences with ageneral denial of the averments in the plaint, save and except thosespecifically accepted. Paragraph 6 of the answer states that theDefendants challenge the Plaintiff to strictly prove the averments men-tioned in paragraphs 5 to 24 of the plaint. Authorities cited on' behalf of thePlaintiff – Petitioner held that under Section 75(2) of the Civil ProcedureCode, the Defendant should admit or deny the averments in the plaint. ThePetitioner in his Written Submissions tendered to this Court referred toC.E. Odgers on “Pleadings and practice ’ 20th Edition (1971) (IndianReprint 2000) at’pages 134 and 138 and indicated that denial by aDefendant must be specific, and not general. Although the denial by theDefendants are general in paragraph 1 of the answer, the District Judgehas not referred to this aspect in her order, However as the Defendantshave put the Plaintiff to strictly prove the averments contained in para-graph 5-24 of the plaint, it is manifest that the Defendants do not admitthese averments.
In accordance with Section 146(1) of the Civil Procedure Code, theCourt shall proceed to determine the issues. The section states that
“On the day fixed for the hearing of the action, or on any other day towhich the hearing is adjourned, if the parities are agreed as to thequestion of fact or of law to be decided between them, they may statethe same in the form of an issue, and the Court shall proceed to deter-mine the same.”
Section 146(2) of the Civil Procedure Code further states that “if theparties are at variance, the Court shall record the issues. ” An
Finance & Land Sales Ltd vs Perera (Gamini Amaratunga, J) ' 7 9
Admission is recorded when both sides agree to do so. In this case theDistrict Judge has fixed trial for 03.03.2004. Moreover as the recording ofAdmissions and issues have still not begun before the District judge trialproper has still not commenced. I confirm the order of the learned DistrictJudge of Gampaha dated 04.11.2003, and direct the District Judge toproceed with the trial.
For the aforesaid reasons Leave to Appeal to the Plaintiff Petitioneris refused. Costs is fixed at Rs. 5,000.r
ABBAS vs ABBAS AND OTHERS