CONSTRUCTION AND DEVELOPMENT COMPANY LTD. AND ANOTHER vs. GUNASEKERA

009-SLLR-SLLR-2006-V-2-CONSTRUCTION-AND-DEVELOPMENT-COMPANY-LTD.-AND-ANOTHER-vs.-GUNASEKERA.pdf



CA
Construction and Development Company Ltd. and
Another Vs Gunasekera
63
CONSTRUCTION AND DEVELOPMENT COMPANY LTD. ANDANOTHER VS GUNASEKERACOURT OF APPEALWIJEYARATNE, J.
C. A. 350/2001 (LG).
DC COLOMBO 17090/L.
SEPTEMBER 23,2002.
OCTOBER 1, 2002.
Civil Procedure Code, sections 75, 146 and 146(2) – No express denial inanswer – Can they be regarded as admissions ?-Deemed to have beenadmitted – Is it in fact admitted ?-Evidence Ordinance, sections 58, 101 and102.
The plaintiff-respondent instituted action seeking a declaration of title to thepremises in suit. The defendant-appellants filed answer wherein paragraphs3, 4, 6 and 7 were not specifically denied or admitted; paragraph 1 of theamended answer and certain parts of some paragraphs were admitted andput the plaintiff to the proof of other averments in those paragraphs but did notexpressly deny any averment therein.
On an application made by the plaintiff the trial judge made order to recordthem as admissions.
HELD:
There is no justification or rational basis to record as an admission afact which is not expressly admitted on the basis that what is notexpressly denied is deemed to be an admission. What is deemed tohave been admitted is not in fact admitted.
Per Wijeyaratne, J.
"Answer clearly indicates that the 1st and 2nd defendant-appellantshaving admitted part of the averments contained in the relevantparagraphs has put the plaintiff-respondent to the proof of the otheraverments. This means that the defendants did not admit and it isbecause that they did not admit what is averred they expected theplaintiff who asserted them to prove same, “-sections 101, 102 of theEvidence Ordinance.
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Sri Lanka Law Reports
(2006) 2 Sri LR.
The Order to record as admissions what is not expressly admittedand matters where parties are at variance is neither lawful norjustifiable.
APPLICATION for leave to appeal from an order of the District Court of Colombowith leave being granted.
Cases referred to:
Fernando Vs. Samarasekara 49 NLR 285.
Mallawaaratchi vs. Central Investments Finance -CA 433/79(F).
Wijeyadasa Rajapakse, PC with Asoka Kalugampitiya for 1st and 2ndpetitioners.
Ikram Mohamed, PC with Thisath Wijesiriwardane for plaintiff-respondent.
Cur. adv. vult.
January 10, 2006.
WIJEYARATNE, J.
The Plaintiff-respondent instituted action against the 1st and 2nddefendant-appellants and the 3rd defendant-respondent seeking declarationof title to the premises in suit and injunctive relief as prayed for in theplaint. The 1 st and 2nd defendant-appellants filed answer and amendedanswer dated 17.01.1995 wherein paragraphs 3,4,6, & 7 were notspecifically denied or admitted. However paragraph 1 of the amendedanswer admitted certain parts of such paragraphs of the plaint and put theplaintiff to the proof of other averments in those paragraphs but did notexpressly deny any averment therein.
At the commencement of the trial counsel for the Plaintiff-respondentmoved to record that the 1 st and 2nd defendants have admitted paragraphs3,4,6 and 7 of the plaint in the absence of any express denial of the same,which, the counsel urged, be treated as being deemed to have beenadmitted. The learned trial Judge having heard the submissions made bycounsel made order to record them as admissions. The 1st and 2ndrespondents made application for leave to appeal from such orders whichare recorded as four separate orders. This Court by its minute dated26.03.2002 granted leave and the appeal when taken up for hearing theparties opted to file written submissions and invited Court to deliver judgmenton the strength of such submissions.
CAConstruction and Development Company Ltd. and' 65
Another Vs Gunasekera (Wijayaratne, J.)
The counsel for the plaintiff-respondent supporting the orders relied onthe decision of Fernando t/s Samarasekera1 where it was held that thefailure to deny the averments of the plaint in accordance with therequirements of the statute (section 75 of the Civil Procedure Code) mustbe deemed to be an admission by the defendants of the averment. Hefurther referred this Court to the judgment in Mallawaratchi vs CentralInvestments Finance Ltd? which followed the judgment above referred to.
The recording of the same as an admission is not in accordance withany provision of the Civil Procedure Code. Nor does th'e counsel refer thisCourt to any such provisions requiring or empowering the trial Court torecord such admissions. However the recording of admissions has becomea long established practice in civil trials. Yet there is no justification orrational basis to record as an admission a fact which is not expresslyadmitted on the basis that what is not expressly denied is deemed to bean admission. What is deemed to have been admitted is not in fact admitted.
Section 146 of the Civil Procedure Code requires"questions
of fact or law to be decided between parties as issues. The duty of the trialCourt in terms of the provisions of sub section (2) of section 146 is to
“ascertain upon what material propositions of fact or law the
parties are at variance and shall there upon proceed to record the issueson which the right decision of the case appears to the Court to depend."
Perusal of the amended answer clearly indicates that the 1 st and 2nddefendants-appellants having admitted part of the averments contained inthe relevant paragraphs has put the plaintiff-respondent to the proof of theother averments. This means that the 1st and 2nd defendants did notadmit and it is because they did not admit what is averrred only theyexpected the plaintiff who asserted them to prove the same. In terms ofthe provisions of sections 101 and 102 of the Evidence Ordinance theburden of proving a particular fact is on the party who asserts the sameand expect judgment to be given on such facts. The exception is found inthe provisions of section 58 of the Evidence Ordinance which states whatis admitted need not be proved. This means that what is admitted by theadverse party need not be proved though admissions does not amount toproof.
Applying these provisions to the matter in issue, it is the burden of theplaintiff – respondent to prove what he asserts in the plaint excepting whatis admitted. To record as an admission what the defendant did not admit,but did not deny either, purely on the basis of a deeming aspect of it would
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mean the plaintiff-respondent would be absolved of his burden to provefads needed to be proved as assertions relied on for the purpose of obtaininga decision in his favour. This is in complete contrast to the scheme of theCivil Procedure Code and the legal system of adversaries; specially in theabsence of any provisions enabling or empowering Court to resort to sucha cause through recording of admissions. It would if permitted, result in atotal twist of the process of law and subvert justice.
The order to record as admissions what is not expressly admitted andmatters where parties are at variance is neither lawful nor justifiable.
Such orders are set aside and vacated and the appeal is allowed withcosts.
The learned trial judge is directed to proceed with the trial from thecommencement according to law.
Appeal allowed.