036-SLLR-SLLR-2008-V-2-KARIYAWASAM-v.-RAJASURIYA.pdf
Kariyawasam v
CARajasuriya335
KARIYAWASAMv
RAJASURIYACOURT OF APPEALEKANAYAKE, J,
CALA 226/2002 ( LG)
DC COLOMBO 18678/99/LMAY 5, 2006JULY 7, 18, 2006
Civil Procedure Code – Section 75 (d) – Section 76 – Averments in the plaint -Neither denied nor accepted – Are they deemed to be admissions? – SpecificSinhala formula to be used in denying?
Held:
Answer reveals that the defendant had jointly and severally denied all theother averments in the plaint except those that are specifically admitted.
Per Chandra Ekanayake, J.
"In the light of the above I am unable to hold the view that any specific mentionabout the averments with regard to the other paragraphs of the plaint would benecessary or that would be a mandatory requirement”.
What has been made mandatory in Section 75 (d) is that an answer shouldcontain a statement admitting or denying the several averments in the plaint.In the answer in paragraph 1, it has been specifically averred that the rest ofthe averments of the plaint are denied jointly and severally except what isspecifically admitted therein The Civil Procedure Code does not provide anyother requirement that should be complied with when denying averments of aplaint, except when disputing the averments in the plaint as to the jurisdictionof the Court (Section 76).
As regards to a specific Sinhala formula to be used – Sections embodied inChapter IX of the Code re-filling answer are self explanatory.
APPLICATION for leave to appeal from an order of the District Court of Colombowith leave being granted.
Cases referred to:
Hassanv Iqbal 2001 3 Sri LR 147.
Fernando v The Ceylon Tea Corporation 3 SCR 35.
G.R.D. Obeysekera for defendant-petitioner.
Rohan Sahabandu for plaintiff-respondent.
336Sri Lanka Law Reports(2008J 2 Sri L.R
May 9, 2007
CHANDRA EKANAYAKE, J.The defendant-petitioner (hereinafter sometimes referred to as thedefendant) by his petition dated 14.06.2002 had sought inter-alia leaveto appeal against the order of the learned District Judge of Colombodated 30.05.2002 (X) made in D.C. Colombo Case No. 18678/L.
The plaintiff-respondent (hereinafter sometimes referred to as theplaintiff) by plaint dated 04.09.1999 had sought inter alia declaration oftitle to the property morefully described in the 4th scheduled thereto,ejectment of the defendant and all those holding under her there fromand for restoration of possession thereof and damages as prayed forin sub-paragraphs (31) of the prayer to the plaint marked P2. Thedefendant by his answer (P1) whilst opposing the claims of the plaintiffhad prayed for a dismissal of the plaintiff's action more particularly on
the grounds averred in paragraph (7) thereof namely: by virtue ofhaving acquired prescriptive title due to uninterrupted and continuouspossession of the subject matter by herself, husband and father-in-lawfor over 50 years had acquired prescriptive title to the same.
When the case was taken up for trial on 3.05.2002 after recording2 admissions application had been made by the plaintiff’s Counsel asparagraphs 21, 23-26 and 29-32 were neither denied nor accepted incompliance with the provisions of Section 75(d) of the Civil ProcedureCode the averments contained in paragraphs 21, 23-26 and 29-32should be recorded as admissions. This application being opposed toby the Counsel for the defendant, the learned trial Judge after hearingsubmissions made by both parties had ordered that the avermentscontained in the aforesaid paragraphs of the plaint should be recordedas admissions. This is the order this leave to appeal application hadbeen preferred from.
By the order of this Court dated 30.11.2004 leave to appeal hadbeen granted on the following questions:
Whether there is any specific Sinhala formula to be used in ananswer of a defendant when the defendant intends to deny anyor all the averments set out in the plaint?
When the answer is read as a whole, if it is clear that thedefendant disputes the truth of the averments set out in theplaint, is a trial Judge justified in recording admissions as thetrial Judge in this case has done?
QAKariyawasam v Rajasuriya337
(Chandra Ekanayake, J.)
Perusal of the answer of the defendant reveals that she had jointlyand severally denied all the other averments contained in the plaintexcept those are specifically admitted in the answer – vide paragraph1 of the answer dated 04.06.2000 (P1). The said paragraph 1 is tothe following effect:
In the light of the above I am unable to hold the view that anyspecific mention about the averments with regard to the otherparagraphs of the plaint would be necessary or that would be amandatory requirement. In the present case the main basis of thelearned judge's finding to record the averments contained inparagraphs 21,23 to 26 and 29 to 32 of the plaint was that there wasno specific denial of the same in the answer.In view of the above thenecessity has now arisen to consider the provisions of Section 75(d)of the Civil Procedure Code. Section 75(d) thus reads as follows:
"A statement admitting or denying the several averments of theplaint, and setting out in detail plainly and concisely themattersof fact and law, and the circumstances of the case uponwhich the defendant means to rely for his defence; thisstatement shall be drawn in duly numbered paragraphs,referring by number, where necessary, to the paragraphs of theplaint"
What has been made mandatory by the above sub-Section is thatan answer should contain a statement admitting or denying theseveral averments of the plaint. In the answer filed by the defendantin this case by paragraph 1 it has been specifically averred that therest of the averments of the plaint are denied jointly and severallyexcept what is specifically admitted therein. I am of the view that thisis sufficient compliance of the requirements envisaged in Section75(d) of the Civil Procedure Code and further Civil Procedure Codedoes not provide any other requirement that should be complied withwhen denying averments of a plaint, except when disputing theaverments in the plaint as to the jurisdiction of the Court (VideSection 76).
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.