011-SLLR-SLLR-2005-V-3-RAVINDRAN-AND-ANOTHER-vs.-SOYSA-AND-ANOTHER.pdf
56
Sri Lanka Law Reports
(2005)-3 Sri L ft
RAVINDRAN AND ANOTHERVSSOYSA AND ANOTHERCOURT OF APPEALSOMAWANA, J. (P/CA) ANDWIMALACHANDRA, J.,
CALA 80/2004.
DC Mt LAVINIA 1351/00/L.
JULY 22, 2005.
Civil Procedure Code – Sections 75, 75(d) General denial of averments inplaint – Is it a denial contemplated under section 75(d) ?
HELD.
There is no reference either denying or admitting the averments inparagraphs 6/7 of the plaint. Nowhere does the defendant-petitionersin their answer admit averments in paragraphs 2-7, 12 and 17 of theplaint, there is no denial of the averments therein other than a generaldenial in paragraph 1 in the answer.
Where a defendant does not deny an averment in the plaint – he mustbe deemed to have admitted that averment.
Per Somawansa, J. :
“Section 75 which deals with the requirements of an answer does notcontemplate a general denial of the averments in the plaint but requires astatement admitting or denying the several averments in the plaint."
APPLICATION for Leave to Appeal from an Order of the District Court of Mt.Lavinia.
Cases referred to:
Fernando vs. Samarasekera – 49 NLR 285.
Lokuhamy vs. Sirimaia – (1892) 1 SCR 326
Fernando vs-. The Ceylon Tea Company Ltd. (1894) 3 SLR 35
Mudaly Appuhamy vs. Tikerala (1892) 2 CLR 35
Prinath Fernando for petitioner,
Respondents absent and unrepresented.
Cur. adv. vult.
CA
Ravindran and Another v. Soysa and Another (Somawansa, J.(P/CA))57
July 22,2005
ANDREW SOMAWANSA, J. (P/CA)This an application for leave to appeal from the order of the learnedDistrict Judge of Mt. Lavinia dated 11.02.2004 permitting the plaintiffs-respondents' application to have averments in paragraphs 2, 3, 4, 5(i),5(ii), 6, 7, 10, 12 and 17 in the answer of the defendants – petitionersrecorded as admissions.
As there was no response to the notices issued to the plaintiffs-respondents on several occasions the matter was fixed for inquiry and thecounsel for the defendants-petitioners moved to tender written submissionsand the same has been tendered.
It is contended by counsel for the defendants-petitioners that theaforesaid order dated 11.02.2004 is wrong since the defendants-petitionershave denied all averments in the plaint by averments in paragraph 01 oftheir answer. He submits that the words in paragraph 01 of their answer ortheir meaning will not have any effect if the learned District Judge's order isallowed to stand. I am unable to agree with this submission for section 75of the Civil Procedure Code which deals with the requirements of an answerdoes not contemplate a general denial of the averments in the plaint butrequires a statement admitting or denying the several averments of theplaint. The relevant part of section 75 of the Civil Procedure Code applicableto the issue at hand is sub-section'd* which reads as follows :
"a statement admitting or denying the several averments of theplaint, and setting out in detail plainly and concisely the matters of factand law, and the circumstances of the case upon which the defendantmeans to rely for his defence ; this statement shall be drawn in dulynumbered paragraphs, referring by number, where necessary, to theparagraphs of the plaint".
In answer to averments in paragraphs 2,3,4,5 (i), 5 (ii), 10,12 and 17in the plaint the defendants-petitioners by paragraphs 3,4, 5, 7, 9 and 12in their answer states as follows :
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.