001-SLLR-SLLR-2005-V-2-FERNANDO-vs-SILVA.pdf

As the Defendant had not denied the contents of paragraphs 4, 8, 9 and 13 ofthe Plaint, the trial Court recorded the aforesaid paragraphs as admissions.The Defendant had while answering the said paragraphs had stated that he –
can convey in Sinhala what is meant by the English word "Deny” – Substancemore important than form?-Courts to have realistic approach.
COURT OF APPEAL,AMARATUNGA, J.,WIMALACHANDRA, J.CALA 260/2003 (LG)
D. C. COLOMBO 19452/LOCTOBER 14,2004
Civil Procedure Code – Section 31(1), Section 75(d)-Averments in Plaint not
is not the only word which
specifically denied – Sinhala word

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(2005) J Sri L. R.
APPLICATION for leave to appeal from the Order of the District Court of Colombo,with leave being granted.
Cases referred to :
Re. Chenwell – 8 Ch. D 506
Wickramatilaka vs Marikkar – (1895) 2 NLR 9 at 12
Rohana Jayawardena with Nimal Muttukumarana for petitioner.Kuvera de Zoysa with Sumedha Mahawanniarachchi for Respondents
Cur adv vult
January 11, 2005GAMINI AMARATUNGA J.
This is an appeal with leave granted by this Court. The subject matter ofthe appeal is the order of the learned trial Judge recording paragraphs 4,8, 9 and 13 of the plaint as admissions. That order had been made on thebasis that the defendant had not denied the contents of those paragraphs.
It is pertinent to set out the facts relevant to the case. The plaintiff filedaction against the defendant to get a declaration of her title to the landand the buildings described in the schedule to the plaint and to get anorder ejecting the defendant therefrom. She also sought a declarationthat a Deed of Declaration executed by the defendant was null and void.In paragraph 2 and 3 of the plaint the plaintiff set out the manner in which
paragraph 8 of the plaint the plaintiff averred that when the defendantforcibly entered her property she made a complaint to the police. Inparagraph 9 the plaintiff alleged that the defendant had fraudulentlyexecuted a Deed of Declaration in respect of the land in suit. Answeringthe paragraphs 8 and 9 of the plaint together, the defendant
the plaintiff averred that in view of what have been stated in paragraphs2 and 3 she became the owner of the property in suit. Answering thesaid averment No. 4, the defendant has stated that he challenged the

In
defendant denied paragraphs 5, 6 and 7 of the plaint
In his answer the
plaintiff to prove it

the averments in those paragraphs. In paragraph 4 of the plaint
she got title to the property. The Defendant in his answer denied

CA
Fernando vs Silva (Amaratunga J.)
3
The relevant portion of section 75(d) of the Civil Procedure Code is asfollows. Every answer shall contain the following particulars – “a statementadmitting or denying the several averments in the plaint, and setting out indetail plainly and concisely the matters of fact and law, and thecircumstances of the case upon which the defendant means to rely for hisdefence”.
The Civil Procedure Code was enacted in English. Upto date there is noofficial translation of the Code although there is a translation issued by theOfficial Languages Department. At the time language of Courts was English,-the pleadings were in English. Therefore it was easy to use the word‘deny’ in an answer. Now the pleadings are in Sinhala or in Tamil. So inSinhala pleadings what is the exact Sinhala word to be used to signifydenial?
Blacks Law Dictionary defines the English word ‘deny’ as follows. “Totraverse. To give negative answer or reply to. To refuse to grant or accept.”The new Hamlyn Encyclopedic World Dictionary gives the followingmeanings to the word ‘deny’. To assert the negative of; declare not to betrue; to refuse to believe; reject as false or erroneous; to refuse to recognizeor acknowledge; disavow; repudiate; to refuse to accept. (1988 Edition)
but in answering paragraphs 4, 8, 9 and 13 he has not used those wordsand accordingly the defendant has admitted those paragraphs. Thelearned trial Judge having referred to the provisions of section 75(d) of theCivil Procedure Code has ordered to record the averments in paragraphs4, 8, 9 and 13 of the plaint as admissions.
has merely stated that the plaintiff should prove those matters.Further the defendant had denied the contents of paragraphs, 10,11 and 12 of the plaint. In paragraph 13 the plaintiff has stated that undersection 35 (1) of the Civil Procedure Code she has a legal right to seekpermission to declare the defendants Deed of Declaration null and void.The defendant has challenged the plaintiff to prove that.
When the trial was taken up the plaintiff moved to have averments inparagraphs 4, 8, 9 and 13 recorded as admissions on the basis that thedefendant has not denied the contents of those paragraphs. The contentionof the learned counsel for the plaintiff was that the defendant in answering
paragraphs 2, 3, 5, 6,10,11 and 12 has used,the words

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Sinhala what is meant by the English word ‘deny’. In the absence ot a specificSinhala word, officially recognized for the purpose of section 75 (d) of theCivil Procedure Code, the Courts cannot insist that only a particular Sinhalaword shall be used when a defendant means to deny any averment in aplaint. Substance is more important than the meaning of the word ‘deny’if it clearly conveys the idea that the defendant does not accept thecorrectness of the averments set out in the plaint, there is valid denial forthe purposes of section 75(d) of the Code. When pleadings are preparedin Sinhala in accordance with rules laid down in English, the Courts musthave a realistic approach and shall not tie down litigants with technicalforms, forgetting the importance of substance.
In this case, when the answer of the defendant is read as a whole, it ismanifestly clear that the defendant has refused to admit the entire case ofthe defendant. The plaintiff’s action is a rei vindicatio action where theburden is on the plaintiff to establish his case. If the defendant does notaccept the plaintiff’s title, he can without setting up any other defence,challenge the plaintiff to prove his case and remain silent. In the presentcase the defendant has not set up any defence. He has merely refused toaccept the truth of the averments set out in the plaint. The defendant’sprayer is a simple prayer to dismiss the plaintiff’s action.
As Jessel M. R. in Re Chenweli'] said It is not the duty of a Judge tothrow technical difficulties in the way of the administration of JusticeQuoted by Bonser C. J. in Wickramatilaka vs. Marika/2) at 12.
In this case, the defendant by his answer has sufficiently denied thetruth of the whole case presented by the plaintiff. Therefore the learnedJudge was not justified in recording paragraphs 4, 8, 9 and 13 of the plaintas admissions. Accordingly I allow the appeal and make order deletingthose admissions recorded at the trial. The defendant is entitled to costsin a sum of Rs. 5000/-
WIMALACHANDRA J. – I Agree
Appeal allowed
is not the only word which can convey in
The Sinhala word