Doctrine of Non-Traversal

Introduction

The doctrine of Non-Traversal under Order VIII Rule 5 is a settled position of law. It provides that, if an allegation made in the plaint is not specifically denied or by necessary implication in a written statement, it is treated as admitted. Furthermore, if a fact is clearly asserted in the plaint, and supported by a witness in cross-examination, and there is no denial of the said fact, nor nonexistence of such fact put to the witnesses in cross-examination, such fact will be held to be proved.[1]

The object of the rule is to narrow the issues to be tried in the case and to enable either party to know what real point is to be discussed and decided.

A plea that the defendant does not admit any of the allegations in the plaint except such as have been expressly admitted and that he puts the plaintiff to the proof of allegations not admitted is not a sufficient denial within the meaning of this rule. Thus, every allegation so denied will be deemed to have been admitted.[2]

Applicability

Although the provisions of Rule 5 apply to suits and execution proceedings it does not apply to petitions under Article 226 or 227 of the Constitution, the general principles relating to pleadings and failure to traverse averments in a petition would apply to such petitions.[3]

In divorce cases, the court usually proceeds on the rule of prudence and not on the requirement of law.[4]

Relation between Rule 3, 4, 5 and 10

In the landmark judgement of Badat & Co. v. East India Trading Co.,[5] Justice Subba Rao stated,

“These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non- compliance.

The written statement must deal specifically with each allegation of fact in the plaint and when a 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 specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.”

Again, in Balraj Taneja v. Sunil Madan,[6] referring to relevant rules of Order 8, the court held “that at no stage the court can act blindly or mechanically. The court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgement blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court.

It is a matter of the court’s satisfaction and therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgement against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass judgement without requiring the plaintiff to prove the facts as to settle the factual controversy.”

Facts not denied specifically

Rule 5 relieves the plaintiff from proving allegations and averments made in the plaint if they are not denied specifically or by necessary implication. So, refusal to admit the facts also must be express and specific. General or ambiguous denial is no denial at all.[7]

Thus, contention in the written statement that the defendant does not admit any of the averments in the plaint except such as have been expressly admitted cannot be said to be sufficient denial within the meaning of this rule.[8] Similarly, denial of knowledge of a particular fact is not the denial of the fact and will not have the effect of putting the fact in issue.[9] Therefore, where the defendant contends that the allegation is baseless and needs no reply, there is no denial of fact averred in the plaint.[10]

It is, however not necessary that each and every allegation in the plaint should be reproduced in the written statement and denied.[11] The main allegations which form the foundation of the suit should be dealt with and clearly denied.

All such facts and averments should be taken up separately and should either be admitted or denied by the defendant.[12] Again, numerical denial of a particular paragraph of the plaint is a matter of form and not of substance. For deciding whether a statement in the plaint has been denied or not, the plaint should be read as a whole.[13]

Distinction between Denial and Non- Admission

When a party does not admit an averment, he intends and insists that the other party prove the averment. But when he denies such averment, he not only requires the other side to prove it but contends that such fact had never happened.[14]

Again, a party can deny an allegation of fact when it is within his knowledge but does not admit when he is not aware of such fact. In either case, the effect is that the allegation would not be deemed to be admitted.[15]

Stated To Be Not Admitted

As the facts are not limited to specific denials or admission, the refusal to admit must be clear, specific and expressed. In the absence of such a statement in the reply of the defendant, the factual averments in the plaint will be deemed to have been admitted by the defendant.[16]

The rule of non-traverse in the written statement should not be applied mechanically. It is not a rule of thumb to be followed blindly. The court must be careful and circumspect and apply it after application of mind.[17]

Question of Law

Though pure questions of fact, as well as mixed questions of law and fact, should be pleaded in the pleadings by a party raising such questions, a pure question of law need not be pleaded.

If all the facts have been placed on record by a plaintiff in his plaint or by a defendant in his written statement without deducing legal position, the court should not reject the pleading. It is the duty of the court to apply the law to the facts on record and to decide the case in accordance with the law.[18]

However, the position of foreign law is different. The maxim “Everyone is presumed to know the law” does not apply to foreign law. It stands on the same footing as facts, therefore, require to be pleaded.[19]

Pleadings in Indian Courts

It is well settled that pleadings in India and particularly in lower courts are not artistically drafted. Therefore, laxity is tolerable in the interest of justice. Supreme Court in Mohinder Singh v. Data Ram,[20] held that in an additional written statement, a counter-claim was pleaded by the defendant. As necessary requisites of the plaint (as such written statement was virtually a plaint in a cross-suit).

It was contended by the plaintiff that the same was liable to be rejected. Observing, the averments the court stated:

“It is true that the additional written statement is not artistically drafted, but in India it is difficult to apply strict rules of interpretation to pleadings in the lower courts.”

However, the above principle does not extend to pleadings in High Courts. Justice Subba Rao in Badat & Co. v. East India Trading Co.,[21] “observed that laxity in mofussil pleadings can be tolerated but the said rules do not apply to the Original Side of the Bombay High Court as the pleadings are drafted by trained lawyers bestowing serious thought and with precision.”

Position in English Law

There is a difference in the legal position under English law and Indian law. in England, the rule as to admission by non-denial of fact is stringent. If the defendant omits to traverse an averment made by the plaintiff in the statement of claim, he cannot be permitted to traverse it at the time of trial.

In India, the pleadings are not construed strictly. So, even if the defendant has not denied the allegation of the plaintiff in his written statement, the court may require the plaintiff to prove such fact at the hearing of the suit.[22]

Landmark Judgements on the Doctrine of Non-Traversal

1. In Food Corporation of India v. Municipal Committee, Jalalabad,[23] no challenge was made to the averments made that assessment of property tax was based on agreed fair rent. It was held that it cannot be contended that the agreed rent was not fair rent and the provision relating to fixation of annual letting value had been violated.
2. In Lohia Properties Pvt. Ltd. v. Atmaram Kumar,[24] A terminated the tenancy of B by issuing a notice. Service of notice terminating tenancy of defendant B had been specifically alleged in the plaint by the plaintiff A. in written statement B stated ‘That the notice of ejectment as referred in the plaint is not according to the law”. The court invoked Rule 5 and hed that the reply constituted an implied admission on the basis of which a decree could be passed.
3. In Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati,[25] the Apex Court observed that the court usually does not decide a question of divorce merely on the basis of admissions of the parties. It is a rule of prudence and not a requirement of law. it does not mean that the court has no power to consider the relevant provisions of law. the court can, therefore, make an order keeping in view the provisions of Order 8 Rule 5 of the code. Such an order can be said to be in accordance with the law.
4. Supreme Court in Balraj Taneja v. Sunil Madan,[26] A filed a suit for specific performance of the contract against B. B never filed a written statement and the suit filed by A was, therefore, decreed. Supreme Court then set aside the decree observing that even if B had not filed a written statement, the court was bound to apply its mind, to consider the facts and circumstances as to whether A was ready and willing to perform his part of the contract and whether the case was a fit one to pass a decree of filing a written statement.

Conclusion

According to the above views, the Doctrine of Non-Traversal was of construction of pleadings and could apply to a defendant’s pleading. If one has not filed a written statement, he could not be said to have admitted any allegation in the plaint and the court had no power to pass a decree on the basis of averments in the plaint. An omission to file a written statement does not amount to an admission of facts stated in the plaint.

In certain circumstances, if the plaintiff makes allegations of fact in his plaint and the defendant does not deny them by filing his defence, the court can treat such allegations as admitted and can pass a decree on the basis of the facts stated.

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[1] Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2016) 1 SCC 207

[2] PP Abubacker v. Union of India, AIR 1972 Ker 103

[3] Abodha Kumar v. State of Orissa, AIR 1969 Ori 80

[4] Mahendra Nanavati v. Sushila Nanavati, AIR 1965 SC 364

[5] AIR 1964 SC 538

[6] (1999) 8 SCC 396

[7] Tek Bahadur v. Debi Singh, AIR 1966 SC 292

[8] Harris v. Gamble, (1878) 7 Ch D 877

[9] Abdul Hamid v. Nur Mohd., AIR 1976 Del 328

[10] Asha v. Baldev, AIR 1985 Del 76

[11] Nilkanth v. Gopaldas, AIR 1963 MP 230

[12] Naseem Bano v. State of UP, 1993 Supp (4) SCC 46

[13] K.C. Kapoor v. Radhika Devi, (1981) 4 SCC 487

[14] Halsbury’s Laws of England, Vol. 22 pg.429

[15] Nimar Cotton Press v. STO Khandwa, AIR 1956 Nag 27

[16] Tek Bahadur v. Debi Singh, AIR 1966 SC 292

[17] Hari Singh v. Darshan Singh, AIR 1980 Del 316

[18] Robinson Price v. Richardson, (1927) 1 KB 448

[19] Ascherberg Hopwood v. Casa Musicale Sanzognodi, (1971) 3 All ER 38

[20] AIR 1972 SC 1048

[21] (1964) 4 SCR 19

[22] Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396

[23] AIR 1999 SC 2573

[24] (1993) 4 SCC 6

[25] AIR 1965 SC 364

[26] AIR 1999 SC 3381

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