085-NLR-NLR-V-49-FERNANDO-Appellant-and-SAMARASEKERE-Respondent.pdf
BASNAYAKE J.—Fernando v. Samarasekere
286
1948Present: Dias and Basnayake JJ.
FERNANDO, Appellant, and SAMARASEKERE, Respondent.
S. C. 175—D. C. Negombo, 13,550
Civil Procedure Code—Averment in plaint—No denial in answer—Admission—Section 75.
Where a defendant does not deny an averment in the plaint he must bedeemed to have admitted that averment.
’PEAL from a judgment of the District Judge, Negombo.
S. W. Jayasuriya, for the defendant, appellant.
H. A. Kottegodda, for the plaintiff, respondent.
Cur. adv. wit.
March 19, 1948. Basnayake J.—
This is an action for declaration of title to certain undivided sharesin an allotment of land called Delgahawatta at Madelgomuwa in theDistrict of Negombo. The defendants appeal from the judgment ofthe learned District Judge.
The only point taken by counsel for the appellant is that there is noevidence to show that the plaintiffs are the heirs of one Miguel Appuhamyto whom along with three others the land in question was allotted incommon in partition proceedings in the Court of Requests of Gampaha.
286
Vaz v. Haniffa
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 Bay that he makes no claim tothe share allotted to Miguel Appuhamy. It is admitted by the Counselfor the 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.
Section 75 (d) of the Civil Procedure Code requires that the answershould contain a statement admitting or denying the several avermentsof the 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 animportant averment the proper place for him to raise it was in his answerwhich he was free at any stage of the proceedings to amend with theleave of Court. The provisions of section 75 are imperative and aredesigned to compel a defendant to admit or deny the several allegationsin the plaint so that the questions of fact to be decided between the partiesmay be ascertained by the Court on the day fixed for the hearing of theaction. A defendant who disregards the imperative requirements ofthis section cannot be allowed to take advantage of his own disobedienceof the statute. To permit such a course of conduct would result in anullification of the scheme of our Code of Civil Procedure.
We hold therefore that the appellant cannot take this objection inappeal. His failure to deny the averment in accordance with the re-quirements of the statute must be deemed to be an admission by himof that averment.
Learned counsel for the appellant submitted to me in Chambers afterwe reserved judgment the cases of Lokuhamy v. Sirimala1 andFernando v. The Ceylon Tea Company, Ltd.2 These cases have no bearingon the matter we have to decide in the present case. They deal with theeffect of the failure of a plaintiff to deny by replication the statementsmade by a defendant in his answer.
The appeal is dismissed with costs.
Dias J.—I agree.
Appeal dismissed.