020-SLLR-SLLR-2004-V-1-SIVARATNAM-AND-OTHERS-v.-DISSAANAYAKE-AND-OTHERS.pdf
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SIVARATNAM AND OTHERSvDISSANAYAKE AND OTHERSCOURT OF APPEALAMARATUNGA, J.
CALA103/2003DC KANDY 17742/LOCTOBER 21 AND 22, 2003
Civil Procedure Code, sections 72, 75, 75 (d), 94 and 101 – Evidence Ordinance,sections 21, 31 and 58 – Admission of facts in injunction inquiry – Could theadmissions be recorded as admissions at the trial ? – Code of Criminal ProcedureAct, No. 15of 1979, section 183.
Held:
(i) An interim injunction inquiry is an incidental proceeding designed to pro-vide provisional relief until the substantial relief a party is entitled to getis decided at a trial.
(II) If material submitted to court by affidavit evidence in an injunctioninquiry has some relevance to the issues to be decided at the main trial,such material can be taken into account according to law, but the courtcannot record as an admission those facts on the basis of an affidavitfiled for the purpose of the inquiry relating to the granting of an interiminjunction.
Admissions are not conclusive proof of the matters admitted, but theymay operate as estoppels.
Per Amaratunga, J.
“An affidavit is written evidence, but such written evidence cannot beused to force an admission on the defendants when they in their answerhave taken up a contrary position.”
For the purpose of regulating the manner in which an admission may beproved, the law draws a distinction between formal and informal admis-sions.
APPLICATION for leave to appeal from the order of the District Court of Kandy.
Cases referred to:
1. Uvais v Punyawathie – 1993 2 SRI LR 46 (distinguished)
CA
Sivaratnam and others v Dissanayake and others
(Amaratunaa. J.)
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Jayasinghe v Mercantile Credit (1982) 2 SRI LR 495
Fernando v Samarasekera – 49 NLR 285
Mariammai v Pethrupillai – (1918) 21 NLR 200
Muhammad AltofAli Khan v Hamid ud-din – 21 Indian Cases 81
Riza Muzni for plaintiff-petitioners
Rohan Sahabandu with Athula Perera for defendant-respondents.
Cur.adv.vult.
January 16, 2004
GAMINI AMARATUNGA, J.This is an application for leave to appeal against the decision of the 01learned Additional District Judge of Kandy refusing to record a fact,contained in an affidavit filed relating to the same action, as an admis-sion recorded at the commencement of the trial. The plaintiffs havefiled action against the defendants for a declaration of their title to theproperty described in schedules A and B of the plaint and the otherrelief claimed by the plaint including an interim injunction. The defen-dants have filed their objections, supported by affidavit to the grantingof an interim injunction. In their affidavit the defendants have statedthat they admitted the facts set out in paragraphs 2-6 of the plaint. 10
When the trial was to be taken up the plaintiff’s counsel has movedCourt to record that the facts set out in paragraphs 2-6 of the plainthave been admitted. The learned counsel for the defendants haspointed out that the defendants in their answer have specifically stat-ed that they were unaware of the facts set out in paragraphs 2 and 3of the plaint and that the plaintiffs should specifically prove the truth ofthose facts. The learned counsel for the plaintiffs has submitted thatthe admission made in the affidavit could not be withdrawn andaccordingly the admission contained in the affidavit must be recordedas an admission at the trial. He has relied on the decision in Uvais v 20Punyawathid^.
The learned Judge in his order has stated that, that case related tothe withdrawal of an admission already recorded at the trial. The
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learned Judge has stated that in view of the specific position taken upin the answer that the defendants were not aware of the truth of theaverments set out in paragraphs 2 and 3 of the plaint, it was not pos-sible to record matters set out in the affidavit as admissions. The plain-tiffs seek leave to appeal against that order.
An admission is a statement, oral or documentary, which suggestsany inference as to any fact in issue or relevant fact which is madeby a party to the action or by someone identified with such party inlegal interest. In terms of section 21 of the Evidence Ordinance,admissions are relevant and may be proved as against the personwho makes them or his representative in interest. According to sec-tion 31 of the Evidence Ordinance, admissions are not conclusiveproof of the matters admitted, but they may operate as estoppels. Forthe purpose of regulating the manner in which an admission may beproved the law draws a distinction between formal admissions andinformal admissions. A formal admission can be broadly defined as anadmission made in Court, or formally made outside Court or deemedto be an admission by virtue of any rule of pleading.
A regular action begins with the plaint. If the defendant admits theclaim of the plaintiff, the Court shall give judgment against the defen-dant according to the admission so made. Such admission shall be inwriting, signed by the defendant and his signature attested by anattorney-at-law. (Section 72 Civil Procedure Code) This section refersto a formal admission made outside Court. A consent motion, con-senting to the relief claimed by the plaintiff is an admission fallingwithin this provision. See the judgment of Soza, J. in Jayasinghe vMercantile Credit <2). If a defendant wishes to resist the action filed bythe plaintiff, the defendant has to file his answer, prepared in accor-dance with section 75 of the Civil Procedure Code. Section 75(d)enacts that the answer shall contain a statement admitting or denyingthe several averments in the plaint. This rule is imperative. A defen-dant’s failure to deny an averment in accordance with the requirementin section 75(d) of the Code must be deemed to be an admission.Fernando v Samarasekara (3>. If interrogatories are served in terms ofsection 94 of the Code, the answers to such interrogatories may alsocontain admissions. An admission made in response to a notice toadmit genuineness of documents given under section 101 of theCode is also a formal admission.
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CA
Sivaratnam and others v Dissanayake and others
(Amaratunaa. J.)
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At anytime before the hearing of the action, the parties are at lib-erty to admit in writing any fact to be determined at the trial (section58 Evidence Ordinance). Such admissions are also formal admis-sions made outside Court. At the commencement of the trial the par-ties may state to Court the facts they admit and then such admissionsare recorded by Court. Even in the course of the trial such admis-sions, eg. genuineness of documents, may be made. All admissionsdescribed above are formal admissions. Section 58 of the EvidenceOrdinance enacts that “No fact need be proved in any proceeding 70which the parties thereto or their agents agree to admit at the hear-ing, or, which before the hearing, they agree to admit by any writingunder their hands or which by any rule of pleading in force at the timethey are deemed to have admitted by their pleadings.”
Other admissions which fall into the category of informal admis-sions must be proved by the manner of proving any other fact i.e. byoral or documentary evidence produced according to the provisions ofthe Evidence Ordinance.
In the instant case, the defendants in their answer have specifical-ly denied the averments set out in paragraphs 2 and 3 of the plaint. In 80such circumstances, the facts stated in those paragraphs are inissue. Despite the protestations of the defendants, the Court cannotrecord an admission of those facts on the basis of an affidavit filed forthe purpose of the inquiry relating to the granting of an interim injunc-tion. An interim injunction inquiry is an incidental proceeding designedto provide provisional relief until the substantive relief a party is enti-tled to get is decided at a trial. If material submitted to Court in aninjunction inquiry has some relevance to the issues to be decided atthe main trial, such material can be taken into account according tolaw. In this case the plaintiffs contention was that averments in para- 90graphs 2 to 6 of the plaint have been admitted in the affidavit filed forthe purpose of the interim injunction inquiry. An affidavit is written evi-dence. But such written evidence cannot be used to force an admis-sion on the defendants when they, in their answer, have taken up acontrary position. The learned Judge was therefore correct in refusingto record that the averments in paragraphs 2 to 6 of the plaint asadmissions.
It appears to me that this leave to appeal application has beenmade on the assumption that the learned Judge’s ruling has the effect
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of wiping out the evidentiary value of the admission made in the 100defendant’s affidavit. But the learned Judge’s ruling does not havesuch far reaching effects. The effect of the ruling is only confined tothe refusal to take the admission into consideration for the purpose ofrecording admissions. The ruling does not debar the plaintiffs fromusing the contents of the affidavit according to the rules of evidence.They are entitled, if they are so advised, to formally mark the affidavitin evidence at the trial through the Justice of the Peace who attestedit. They may also use the affidavit as a former statement to impeachthe testimony of the defendants at the time they give evidence at thetrial. Therefore if the affidavit is used at the trial in accordance with 110the law of evidence, the trial Judge will decide the weight to be .attached to the admission in deciding the issues raised in the action,bearing in mind that “admissions are not conclusive proof of the mat-ters admitted but they may operate as estoppels” (section 31 of theEvidence Ordinance) or that the affidavit contains material relevant tothe weight to be attached to the evidence of the persons who havemade those admissions.
The decision in Uvais v Punyawathie (supra) is authority for theproposition that a fact specifically admitted at the trial and relied on bythe opposite party in deciding how he should present his case cannot 120be withdrawn or departed from at the stage of the appeal. See alsoMariammaiv Pethurupilla <4). Fernando, J.’s judgment in Uvais’s casemakes it very clear that what is not permitted is the withdrawal of anadmission in circumstances where such withdrawal has the effect ofsubverting the fundamental principles of the Civil Procedure Code inregard to pleadings and issues.. That judgment is not authority for thebroader proposition that an admission once made cannot be with-drawn at all. An admission made in a written statement may be sub-sequently withdrawn with the permission of the Judge. MuhammadAltofAli Khan v Hamid-ud-dinS5') Section 183 proviso of the Code of 130Criminal Procedure Act, No. 15 of 1979 explicitly demonstrates that anadmission can be withdrawn. Thus the law’s refusal to allow the with-drawal of an admission is a matter depending on the circumstancesof each case.
For all reasons I have stated above, the refusal of the learnedJudge to record the admissions proposed by the plaintiffs was correctin law. Accordingly I uphold the ruling given by the learned Judge and
CA
Gita Fonseka v The Monetary Board of the Central Bank of
Sri Lanka fWijayaratne. J.)
149
refuse leave to appeal. The application is dismissed with costs in asum of Rs. 2500/-.
Application dismissed.