338Sri Lanka Law Reports[2008] 2 Sri L.R
In this regard assistance could be derived from the decision of thisCourt in Hassany/ IqbaW. In this case Justice Weerasooriya has heldthat (Udalagama, J. agreeing):
"Though in the English Courts allegations of fact not deniedspecifically or by necessary implication are taken to beadmitted, in the Code there is no such provision and the non-denial of an allegation is not taken as an admission of it."
Per Weerasooriya, J. referring to the decision in Fernando v TheCeylon Tea Company Limited2) at 152 and 153 of the said Judgment:
"It has been held that although in the English Courts allegationsof fact not denied specifically or by necessary implication aretaken to be admitted, in our Code there is no such provision andthe non-denial of an allegation is not taken as an admission ofit (Vide Fernando v The Ceylon Tea Company Ltd. {supra)"
What needs consideration now is the two questions raised by thisCourt when granting leave in this case. I am inclined to hold the viewthat both questions have to be answered in the negative for thefollowing reasons:-
with regard to the first question to wit – "specific Sinhala
formula to be used" – sections embodied in Chapter IX of
the Civil Procedure Code re-filing answer are selfexplanatory.
For the reasons given above – No.
For the foregoing reasons I conclude that the learned trial Judgewas in grave error when she held that the averments contained inparagraphs 21,23 to 26, 29 to 32 should be recorded as admissionsand I proceed to set aside the impugned order of the learned DistrictJudge dated 30.05.2002. Accordingly this appeal is hereby allowed.In all circumstances of the case no order is made with regard tocosts.
Appeal allowed.