Introduction The Rule of denial is prescribed under Order VIII Rule 3, read with Rule 4 and 5, where the defendant is bound to deal thoroughly through each of the issues; he must either deny or state the substance of each of the issues. “The main allegations which form the foundation of the suit should be dealt with… Read More »
Introduction The Rule of denial is prescribed under Order VIII Rule 3, read with Rule 4 and 5, where the defendant is bound to deal thoroughly through each of the issues; he must either deny or state the substance of each of the issues. “The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order 8 Rule 5 of the Code.” Order VIII Rule 3 Denial to be...
Introduction
The Rule of denial is prescribed under Order VIII Rule 3, read with Rule 4 and 5, where the defendant is bound to deal thoroughly through each of the issues; he must either deny or state the substance of each of the issues. “The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order 8 Rule 5 of the Code.”
Order VIII Rule 3
Denial to be specific – It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
The manner in which the allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance have been laid down in Badat & Co v. East India Trading Co[1] , Sarwan Singh v. Kankar Singh[2] but the rule as to non–traverse in written statement ought to be applied judiciously.[3]
It is to be noticed that defendant in a suit has to make specific denials of the allegations contained in the plaint, “if his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted under Order 8 Rule 3” CPC.
The defendant must raise by his pleadings all matters which show that the suit is not maintainable or that the transaction is either void or voidable in point of law and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, under Order 8 Rule 2.[4]
The effect of this Rule along with Rules 4 and 5 is that the “defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted.” It does not, of course, mean that every allegation in the plaint should be reproduced at length in the written statement for the purpose of denial. The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied.
Such fact should be taken up separately as far as possible in the order stated in the plaint and the defendant should either admit them or deny or state definitely that he does not admit. “Facts not specifically dealt with will be taken to be admitted.”[5]
It is often not enough for a party to deny an allegation in his opponent’s pleading; he must go further and dispute its validity in law or set up some affirmative case of his own in answer to it. It will not serve his turn merely to traverse the allegation; he must confess and avoid it. A defendant, however, is not bound to admit an allegation which he seeks thus to avoid or which he alleges to be bad in law. Any number of defences may be pleaded together in the same defence, although they are obviously inconsistent subject only to this, that embarrassing defence may be struck out. (Under Order 6 Rule 16)[6]
English Rule
The English rule is that though it would be correct for the plaintiff to use the word “and” when setting up a series of facts, defendant desiring to deny each of these facts must either break the sentence up into a series of sentences and deal separately with each or use the word “or” instead of “and”. Thus if a plaintiff asserts:
The defendant broke and entered the said shop or seized, took and carried away all the furniture, stock-in-trade and other effects which were therein” the correct way of traversing will be:
The defendant never broke or entered the said shop or seized, took and carried away any of the furniture, stock-in-trade; or other effects which were therein[7]
This was approved in Gulab v. Govindram[8]. Pleading of “not-known” is not tantamount to a pleading of not admitted.[9] Denial of knowledge of a fact is not a denial of the fact, nor is it even putting the fact in issue.[10] The expression “not admitted” is a specific denial.[11] It has, however, been held only alleging that para 2 of the plaint is not admitted, is not a specific denial of each allegation of fact in that para.[12]
An omnibus denial of all notices required to be served under the law is not sufficient. Further, if notice is denied, no question can arise as to its legality or validity.[13] Bare denial of adoption is a denial of the fact of adoption and its validity. In a money claim, the defendant should say what sum has been paid off and if the plea is in full satisfaction, it should be distinctly stated.[14]
In a suit for damages, it is not necessary to deny specifically the damages claimed; it is sufficient to plead generally.[15] Statement in an insurance proposal not challenged by the Insurance Co. in a written statement as incorrect cannot be investigated and no amount of evidence is admissible to prove it.[16] An omnibus denial of service of all notices that are required to be served can never be accepted as sufficient.[17] A plaintiff suing in ejectment can only succeed on the strength of his own title. It is sufficient that the plaintiff’s title is denied in the written statement.[18]
A “written statement must deal specifically with each allegation of fact in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is” necessary.[19] Where the plaintiff categorically stated in the plaint that he did not have any alternate accommodation and such statement was not specifically denied by the defendant in his written statement framing of a specific issue in that regard is not necessary.[20]
Each fact alleged is required to be taken up separately and said that the defendant admits it or denies it or does not admit it.[21] Where the truth of the facts alleged in the plaint, though not specifically dealt with in the corresponding para of the written statement was dealt in additional pleadings, the allegations in the plaint must be considered to be traversed.[22] Where a written statement is too vague and too general, it is the duty of the Court to call upon the defendant to furnish definite particulars of the plea even though the plaintiff does not seek clarification.[23]
A plaintiff cannot complain if general and vague averment has been made by him in his plaint or petition and by equally general and vague reply the same is denied. In the absence of particulars in the plaint, all the defendant can do would be simply to deny that there had been discrimination.[24]
The denial must be specific in express terms definite and unambiguous. A denial of the execution of Wakf deed coupled with an allegation that the deed was a nominal, taken by undue influence and was never acted upon will not come under the term “specific denial”.[25] An admission in the pleading must be taken as a whole.[26]
Order VIII Rule 4
Evasive denial – Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
A “traverse whether by denial or refusal to admit, must not be evasive but must answer the point of” substance, for a traverse which is evasive “or does not answer the point of a substance is not a specific traverse of the allegation. Evasive denial is not sufficient. Allegation of fact must be admitted clearly or denied boldly. The purport and effect of the denial must be clear and distinct.”
A defense that the terms of the agreement were never definitely agreed upon as alleged, was held evasive.[27] It is not at all sufficient to say that the defendant does not admit the allegation in the plaint and puts the plaintiff to the proof of them. The principle underlying this rule is that pleadings should be specific.[28] General allegations in the plaint cannot be said to be admitted because of general denial in a written statement. [29]
Where the plaintiff specifically alleged that the tenancy commenced on the first day of each calendar month, the defendant vaguely denied the same, did not allege that the tenancy commenced on the 10th of each month, the plaintiff’s contention that the tenancy commenced on the first day of each month was accepted and Court found accordingly.[30]
In the case of evasive denial or nonspecific denial by defendant/ appellant of the plaintiff/respondent’s case, there can be constructive admission.[31]Evasive denials are deprecated and the points of defence must be stated specifically and clearly. Evasive denials must be construed as an admission.
If the “denial of fact is not specific but evasive, the fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. But under the proviso to rule 5 the court may, in its discretion, require any fact so admitted to be proved otherwise than by such” admission.[32] In other circumstance a leave to amend under Order 6, Rule 17 may be granted by the court, unless the defendant has acted mala fide.[33]
By “point of substance” is meant the gist and meaning of the allegation traversed, as distinct from details which are comparatively immaterial. Thus it is evasive to plead: “defendant never offered a bribe of 500″, the words “or any other sum” should be added.[34]
Order VIII Rule 5
Specific Denial – 1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission,’
(2) Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment Is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
Meaning of terms
- Necessary Implication – The words refer only to denial and not a non-admission. They are intended to cover a case in which the particular version set out in a written statement cannot probably co-exist with the positive case made out by the plaintiff in a plaint.[35]
- Except as against a person under disability – The term “Person under Disability” has not been defined in our Code. It means minors and persons of unsound mind to which Order 32 applies. The rule has nothing to do with the conduct of the suit afterwards. For instance, if at the framing of the issues or at the trial the person representing the minor defendants admits certain allegations of facts it cannot be said that r5 affects such admission.[36]
- Proviso – In the case of admission by implication the rigour of the rule has been modified by the proviso under which the Court may require any fact so admitted to be proved by other evidence. The Court has the discretion to require any fact so admitted by implication to be proved otherwise by such admission.[37]
- Appeal – Against a decree passed under Order 8, Rule 8, the remedy is by way of appeal and not restoration application under Order 9, Rule 13 CPC.[38]
- Remedy – Application under Order 9, Rule 13 for setting aside the decree passed under Order 8, Rule 5 and 10 is not barred.[39]
Conclusion
The effect of Order 8 Rule 3 read along with Rules 4 and 5 of the Code is that the defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order 8 Rule 5 of the Code.
Order 8 Rule 5 of the Code is known as the doctrine of non-traverse which means that where a material averment is passed over without specific denial, it is taken to be admitted. The rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation should be taken to be admitted.
[1] AIR 1964 SC 538.
[2] AIR 1989 SC 606
[3] Hari Singh & Ors. v. Dharam Singh & Anr., AIR 1980 DEL 316
[4] Desi Kedari v. Huzurabad Cooperative Marketing Society Ltd., AIR 1994 AP 301
[5] ibid
[6] The Annual Practice (The White Book), (1965) p 374.
[7] Bullen & Leake, Precedents of Pleadings 444-45 (7th ed.).
[8] AIR 1959 MP 151
[9] Lakshmi v. Ramlal, AIR 1931 All 423
[10] Chettyar Firm v. Ko Lu Doke, AIR 1934 Rang 278
[11] Balaghat Husain v. Abid Bakhsh and Ors., AIR 1927 All 225
[12] Punit Rai and Anr. v. Mohammad Majid and Ors, AIR 1964 Pat 348
[13] Dharama Chand Roy v. Nabin Chandra Mondal, AIR 1963 Cal 253
[14] Musammat Bhagela Kuer. v. Abdul Rahman, 40 Ind Cas 79
[15] J.B. Ross and Co. v. C.R. Scriven, 34 Ind Cas 235
[16] Bal K.r v. New India Insurance Co. AIR 1959 Pat 102
[17] Dharama Chand Roy v. Nabin Chandra Mondal, AIR 1963 Cal 253
[18] Jagdish Narain v. Nawab Said Ahmed Khan, AIR 1946 PC 59
[19] Sambhaji Laxmanrao Pawar v. Abdul Wahed, 1995 (1) BomCR 608
[20] Hirendra Nath Basu v. Kshetra Mohan Dutta, 1997 SCC ONLINE CAL 309
[21] Binda v. United Bank of India, AIR 1961 Pat 152
[22] S K Abdul v. Union of India, AIR 1970 SC 479
[23] Faquir Buxv v. Thakur Prasad, AIR 1941 Oudh 457
[24] Union of India v. Pandurang, AIR 1962 SC 630
[25] Mohammed Sab Wallab Gafar Sab v. Abdul Gani Wallab Mohammed Hayath, AIR 1985 Kant. 177
[26] Azgor Ali v. Reazuddin Miah, AIR 1989 Gauhati 74
[27] Thorp v. Holdsworth, (1876) 3 Ch. D. 637
[28] Narinder Singh v. C.M. King, AIR 1928 Lah 769.
[29] Habibbhai v. Pyarelal, AIR 1964 MP 62
[30] Ramchandra Jamnadas Kalariya v. Nuruddinbhai, AIR 2005 Bom. 107
[31] Dinesh K. Singhania v. Cal. Stock Exchange Ascocn. Ltd., (2005) 2 CHN 601
[32] Badat & Co. v. East India Trading Co. AIR 1964 SC 5381.
[33] Tildersley v. Harper, (1878) 10 Ch D 393
[34] ibid
[35] M. Gordhandas & Co. v. D Arvind Mills, (1974) 76 BOMLR 119
[36] Naggapa v. Sadalingappa, AIR 1919 Mad 698
[37] Sarala v. Birendra, AIR 1961 MP 127
[38] Tejbai Tejshi v. Gangabai Dinanath Ulvekar, 2002 (1) BomCR 109
[39] Shantilata Patnaik v. London Baptist Mission Corporation, (2001) 1 CCC 446
