011-SLLR-SLLR-2005-V-3-RAVINDRAN-AND-ANOTHER-vs.-SOYSA-AND-ANOTHER.pdf

5S
Sri Lanka Law Reports
(2005) 3 Sri L. R.
It is to be seen that there is no reference either denying or admitting theaverments in paragraphs 6 and 7 of the plaint. While conceding that nowheredo the defendants-petitioners in their answer admit ihe averments inparagraphs 2,3,4, 5, 6, 7,12 and 17 of the plaint, there is also no denialof the averments therein other than a general denial in paragraph 1 in theanswer.
In Fernandovs. Samarasekara{,) it was held :
"Where a defendant does not deny an averment in the plaint he mustbe deemed to have admitted that averment".
The facts in that case were as follows :
It appears from the plaint that Miguel Appuhamy died leaving thethird to the eighth plaintiffs as his heirs. While not denying this avermentin his answer the appellant goes on to say that he makes no claim tothe share allotted to Miguel Appuhamy. It is admitted by the counsel forthe respondents that there is no evidence that the plaintiffs are theheirs of Miguel Appuhamy. He however, relies on the fact that it wasnever denied or disputed throughout the proceedings.
PerBasnayake, J.
"Section 75(d) of the Civil Procedure Code requires that the answershould contain a statement admitting or denying the several averments ofthe plaint, and setting out in detail plainly and concisely the matters offact and law, and the circumstances of the case upon which the defendantmeans to rely for his defence. If the defendant disputed such an important

CA
Ravindran and Another v. Soysa and Another (Somawansa, J.(P/CA))59
averment the proper place for him to raise it was in his answer which hewas free at any stage of the proceedings to amend with the leave of Court.The provisions of section 75 are imperative and are designed to compel adefendant to admit or deny the several allegations in the plaint so that thequestions of fact to be decided between the parties may be ascertainedby the Court on the day fixed for the hearing of the action. A defendantwho disregards the imperative requirements of this section cannot be allowedto take advantage of his own disobedience of the statute. To permit sucha course of conduct would, result in a nullification of the scheme of ourCode of Civil Procedure.
We hold therefore that the appellant cannot take this objection in appeal.His failure to deny the averment in accordance with the requirements ofthe statute must be deemed to be an admission by him of that averment.
Learned counsel for the appellant submitted to me in Chambers afterwe reserved judgment the case of Lokuhamyvs. Sirimala(2) and Fernandovs. The Ceylon Tea Company Ltd. <3)These cases have no bearing on thematter we have to decide in the present case. They deal with the effect ofthe failure of a plaintiff to deny by replication the statements made by adefendant in his answer.
The appeal is dismissed with costs."
Again in Mudaly Appuhamy vs. Tikerala at 35 it was held :
"An objection to a pleading for want of particulars is not a matter to
be set up by plea. A party requiring more particulars should, before
pleading to the merits, take the objection by way of motion to take the
pleading off the file".
It is to be seen that the learned District Judge has considered theprovisions contained in section 75(d) of the Civil Procedure Code as wellas the authorities applicable and has come to a correct finding.
For the above reasons, I see no basis to interfere with the order of thelearned District Judge and accordingly leave to appeal is refused and standsdismissed. I make no order as to costs.
WIMALACHANDRA, J„— I agree,
Application dismissed.