Wijeratne v Wijeratna
WIJERATNACOURT OF APPEALWIMALACHANDRA, J.
CALA. 421/2003D.C. PUGODA 579/LJUNE 8, 2004
Civil Procedure Code, section 75(d) – No denial of an averment – Is it anadmission? – Non admission of the averment – Does it amount to a specificdenial?
In terms of section 75(d) where a defendant does not deny an avermentin the plaint he must be deemed to have admitted that averment.
Per Wimalachandra, J.,
“Each allegation of fact, which has been admitted by the respondent, hasbeen expressly and specifically dealt with by him. In my view it is only ininstances where the facts alleged by the plaintiff are not specifically dealtwith either by an express denial or by a specific statement of non admis-sion that they will be taken as admitted.”
A general denial of an averment of the opponent or a general statementof non admission of such delegation does not amount to a specificdenial, but a distinct and specific statement of non admission of the aver-ment of the opponent, amounts to specific denial.
There must be a specific denial or a definite refusal to admit. It must beunambiguous and not evasive.
APPLICATION for leave to appeal from the order of the District Court ofPugoda.
Sri Lanka Law Reports
12004) 2 Sri L.R
Case referred to:
1. Fernando v Samarasekera – 49 NLR 285 (distinguished)
Aravlnda R.I. Athurupana for plaintiff-petitioner.
R.K.S. Sureschandra for defendant-respondent.
Note by Editor: The Supreme Court in SC SpVLA.refused special leave toappeal to the Supreme Court
August 04, 2004WIMALACHANDRA, J.
This is a leave to appeal application against the order of the 01District Judge of Pugoda dated 23.10.2003.
The plaintiff-petitioner (hereinafter referred to as the petitioner)instituted action in the District Court of Pugoda against the defen-dant-respondent (hereinafter referred to as the respondent) interalia for a declaration of title to the portions of land described in the3rd, 4th and 5th schedules to the plaint. The portions of landdescribed in the 3rd, 4th and 5th schedules were parts of the landdescribed in the 2nd schedule to the plaint. The plaintiff has alsosought a declaration that the respondent was not entitled to a right 10of way over the said lands described in the 3rd, 4th and 5th sched-ules to the plaint.
The respondent in his answer set up a claim in reconventionseeking a declaration of title to the right of way in respect of thelands described in the 3rd, 4th and 5th schedules to the plaint.
The facts relevant to this application are, briefly as follows:
When the case was taken up for trial on 14.11.2002 the peti-tioner moved court to enter judgment as prayed for in the plaint forthe reason that the paragraph 21 of the plaint had not beenexpressly denied by the respondent in his answer. In respect of this 20application, after hearing both parties, the learned Judge madeorder on 22.4.2003 that the said question would be decided at theend of the trial.
Wijeratne v Wijeratna
The case was again taken up for further trial on 23.10.2003 andon that day after the admissions were recorded the petitioner’scounsel submitted to Court that the respondent had not expresslydenied the averments in paragraphs 2,3,4,5,6,7,8.9,10,15,16,17and 18, and move Court that by operation of law the respondent bedeclared as deemed to have admitted the said averments. Thelearned Judge after hearing both parties made order on23.10.2003, that the answer of the respondent complied with theprovisions of section 75(d) of the Civil Procedure Code. It is againstthis order that the petitioner has made this application for leave ofappeal.
In terms of section 75(d), where a defendant does not deny anaverment in the plaint he must be deemed to have admitted thataverment.
Upon an examination of the answer of the respondent it appearsthat the respondent has answered ail the averments in the para-graphs of the plaint. The respondent has admitted paragraph 1 ofthe plaint partly and denied that a cause of action has beenaccrued to the petitioner. He has admitted paragraphs 2,3,5 and 6of the plaint. He has answered paragraphs 4 and 7 of the plaint anddenied the position taken by the petitioner. The respondent hasdenied the averments in paragraphs 9,11,12,13,14 and 19 of theplaint and set out the position taken by him. He has answered para-graphs 10 and 15 rejecting the position taken by the petitioner. Headmits the averments in paragraphs 16 and 17, but states that evenprior to the institution of case No. 1104/L he had acquired a servi-tude over the land depicted as lot E in plan No. 810. He has admit-ted the paragraph 18 of the plaint partly, but denied that heobtained the leave and licence of the petitioner to use the right ofway over the land referred to in the said paragraph. He had deniedthe averments in paragraphs 19,20 and 21 of the plaint and statedhis position with regard to the said averments.
Each allegation of fact, which has not been admitted by therespondent, has been expressly and specifically dealt with by him.In my view it is only in instances where the facts alleged by theplaintiff are not specifically dealt with either by an express denial orby a specific statement of non admission that they will be taken as
Sri Lanka Law Reports
 2 Sri LR
admitted. The respondent has answered all the averments in theplaint.
Section 75(d) of the Civil Procedure Code requires a defendantto admit or deny the several averments in the plaint. This provisionis similar to the order 18, rule 13 of the Rules of the Supreme Courtof England relating to the rules of pleadings, it provides that factsaverred in the plaint if not traversed is deemed to be admitted, andthat traverse may be made either by denial or by a distinct state-ment of non admission.
A traverse is the express contradiction of an allegation of fact in 70an opponent’s pleadings; it is generally a contradiction of the veryterms of allegation, (vide – Odger’s Principles of Pleadings andPractice 19th edition at page 128).
In Fernando v Samarasekera^ our Supreme Court held thatwhere a defendant does not deny an averment in the plaint, hemust be deemed to have admitted that averment. However, theSupreme Court has not considered the position where an allegationof fact made by a party in his pleading is traversed by the oppositeparty by a distinct and specific statement of non-admission.
A general denial of an averment of the opponent or a general sostatement of non-admission of such allegation does not amount toa specific denial. But a distinct and specific statement of non admis-sion of an averment of the opponent, in my view, amounts to a spe-cific denial. There must be a specific denial or a definite refusal toadmit. It must be unambiguous and not evasive.
In the instant case the respondent has answered all the aver-ments in the plaint. The learned Counsel for the petitioner strenu-ously contended in his written submissions that the respondent hasnot specifically denied the paragraph 21 of the plaint; hence thepetitioner is entitled to judgment in his favour. The respondent in 90replying to the averments in paragraph 21 of the plaint has statedin paragraph 17 of the answer as follows:
“21 Ozoesqeorf qpai^ei) <3Qg a>g SDaterf
OdScsQ <*<'<02550 255^65 5)0 z3uo S3.”
Amarasinghe v Jayathilake, Director-General of Customs
and others (Sripavan, J.)
The question is, does the aforesaid statement amount to adenial as contemplated by section 75(d) of the Civil ProcedureCode? This matter has to be determined in the light of the abovediscussions. In my view the aforesaid statement in paragraph 17 ofthe answer is a specific and precise contradiction of a statement offacts in paragraph 21 of the plaint. It is also a distinct and definite 100non admission of averments in paragraph 21 of the plaint. In myopinion this amounts to a denial within the meaning of section 75(d)of the Civil Procedure Code.
In the circumstances it is my considered view that the learnedDistrict Judge has made the correct order that the respondent hadcomplied with the provisions of section 75(d) of the Civil ProcedureCode.
For these reasons this Court sees no cause to interfere with theorder of the learned District Judge dated 24.3.2003. Accordingly,the application for leave to appeal is refused with costs fixed at no