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M. Gordhandas and Co. Vs. D. Arvind Mills - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Suit No. 157 of 1964
Judge
Reported in(1974)76BOMLR119
AppellantM. Gordhandas and Co.
RespondentD. Arvind Mills
Excerpt:
civil procedure code (act v of 1908), order viii rules 3, 4, 5; order xiv rules 3, 4, 5--when denial in comprehensive form in written statement can be regarded as specific denial for purposes of order viii, rule 3--whether words 'or by necessary implication' in order viii rule 5 refer only to a denial and not to a non-admission--wow-admission of averment -made in plaint whether justifies court in framing issue regarding it.;under order vhi rule 3 of the civil procedure code, 1908, as far as the facts constituting the gist of the action or the bundle of all the essential facts comprising the cause of action are concerned, the averments in the plaint must be denied specifically in the written statement, if it is intended to dispute the; same. a denial in a comprehensive form in a written.....vimadalal, j.1. this is a suit filed by the plaintiffs to recover a certain money claim arising out of an agreement arrived at between the plaintiffs and defendants no. 2 acting on behalf of defendants no. 1 in or about the middle of october 1959 relating to the export of a certain quantity of art silk fabrics and the import entitlement relating thereto. it is not necessary for me to enter into the complicated facts of the present ease for the purpose of this order. in para. 6 of the plaint the plaintiffs have averred that, in the matter of the skid contract, defendants no. 2 acted on behalf of defendants no. 1, and the terms of that contract as alleged by the plaintiffs are also set out in the same paragraph of the plaint. defendants no. 1 have, in para. 5 of their written statement.....
Judgment:

Vimadalal, J.

1. This is a suit filed by the plaintiffs to recover a certain money claim arising out of an agreement arrived at between the plaintiffs and defendants No. 2 acting on behalf of defendants No. 1 in or about the middle of October 1959 relating to the export of a certain quantity of art silk fabrics and the import entitlement relating thereto. It is not necessary for me to enter into the complicated facts of the present ease for the purpose of this order. In para. 6 of the plaint the plaintiffs have averred that, in the matter of the skid contract, defendants No. 2 acted on behalf of defendants No. 1, and the terms of that contract as alleged by the plaintiffs are also set out in the same paragraph of the plaint. Defendants No. 1 have, in para. 5 of their Written Statement which is in reply to para. 6 of the plaint, started with a comprehensive denial in the following words:

With reference to para 6 of the plaint, these defendants deny each and every statement of submission and allegation made therein as if the same were set out herein and specifically traversed. These defendants deny that there was an agreement between the plaintiffs and the defendants as alleged in the said paragraph 6 of the plaint. These defendants say that true facts are as under:--

Defendants No. 1, have in para. 5, thereafter proceeded to state seriatim what, according to them, were the terms of the agreement. It may, for the sake of completeness, be mentioned that it appears that the parties are mainly at variance only in regard to the stipulation in the agreement as to the manner in which the price of the goods was to be paid to the plaintiffs. I am, however, not concerned with those terms. What is pertinent to note is that there is no specific denial in para. 5 of the Written Statement of defendants No. 1 of the express averment in para. 6 of the plaint that, in the matter of entering into the said agreement, defendants No. 2 acted for and on behalf of defendants No. 1. It is, therefore, contended on behalf of the plaintiffs that no issue in terms of issue No. 5 of the draft issues submitted by defendants No. 1 arises at all. Issue No. 5 of the said draft is in the following terms:

5. Whether the 2nd Defendants acted for and on behalf of the let Defendants as alleged in paragraph 6 of the plaint?

The contention of Mr. Desai on behalf of defendants No. 1, on the other hand, is that the comprehensive denial at the beginning of para. 5 of the Written Statement amounts to a specific denial within Order VIII, Rule 3 of the Code of Civil Procedure; that a perusal of the Written Statement along with the correspondence leaves no room for doubt that, by necessary implication, the fact of the authority of defendants No. 2 as the agents of defendants No. 1 is not admitted within the terms of Order VIII, Rule 5 of that Code; and that a denial in the form iii which it is made in para. 5 of the Written Statement is enough to justify the raising of an issue, having regard to the terms of Order XIV, Rule 1 of the Code of Civil Procedure.

2. The point was argued at considerable length before me and several authorities eited, but before I turn to the authorities, I would prefer to deal first with the statutory provisions with which I am directly concerned, and then with the statement of the law on the point that is to be found in standard English works on the subject. Order VIII of the Civil Procedure Code deals with a Written Statement and Set-off, and Rule 3 of that Order lays down in unambiguous terms that it is not 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.' There is an exception to that Rule laid down in the Rule itself to which, however, I need not refer. Rule 4 of Order VIII then proceeds to state that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance; and Rule 5 of that Order enacts in mandatory terms that 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. There is then a proviso to that Rule which confers on the Court the discretion to require any fact so admitted to be proved otherwise than by such admission. Order XIV of the Code deals, inter alia, with the settlement of issues, and Rule 1 of that Order states that issues arise when a material proposition of fact or law is affirmed by the one party and 'denied' by the other. Sub-rule (3) of Rule 1 is mandatory in terms and lays down that each material proposition affirmed by one party and 'denied' by the other shall form the subject of a distinct issue. These are all the provisions of the Code of Civil Procedure with which I am concerned in this case.

3. It would be convenient at this stage to mention that the scheme of these Rules has been considered by Subba Rao J. in his dissenting judgment in the case of Badat & Co. v. East India Trading Co. : [1964]4SCR19 . It may further be stated that the majority of the Judges deciding the said case have not referred to or dissented from the observations of Subba Rao J. on that point because, upon the view which they have taken on the question of the enforceability of the award which was in question in the case, it was not necessary to advert to the pleadings or deal with that point (para. 26). Subba Rao J. has, in his dissenting judgment, after quoting Rules 3, 4 and 5 of Order VIII of the Code of Civil Procedure, stated (para. 11) that the said three Rules formed an integrated code dealing with the manner in which allegations of fact in the plain should be traversed and the legal consequences flowing from its non-compliance, that the first para, of Rule 5 is a reproduction of Order XIX, Rule 13 of the English rules made under the Judicature Acts, that the use of the words 'as alleged' in the Written Statement in the said case did not lead to any denial by necessary implication in regard to all the facts alleged by the plaintiff, that Rules 3 and 4 of Order VIII are aimed at such general allegations in the Written Statement, and that the general and vague allegations in the Written Statement in the said case could not possibly be construed expressly or by necessary implication as a denial of the specific allegations in that plaint. It may be mentioned that, in the said suit which was on a contract, the defendants denied that they had entered into a contract with the plaintiff as alleged in the plaint or otherwise, but had not denied that the letters particularised in the plaint had passed between the parties, and it was in reference to that that the observations referred to by me were made by Subba Rao J. in his dissenting judgment. Subba Rao J. agreed with the view taken by the Division Bench of this Court that, on the interpretation of the pleadings, the letters had been rightly admitted in evidence (para. 13). He further took the view (para. 11) that, having regard to the fact that the pleadings on the Original Side of this High Court are drafted by trained lawyers bestowing serious thought and with precision, they should be strictly construed having regard to the provisions of Rules 3, 4 and 5 of Order VIII of the Code of Civil Procedure. As already stated above, the majority of the Judges constituting the Bench of the Supreme Court in the said case have not taken a different view from Subba Rao J. on this point. Moreover, I respectfully agree with those observations of Subba Rao J. It may be mentioned that it is not the contention of Mr. Desai before me that the use of the words 'as alleged' in regard to the denial of the agreement itself should be read as a denial by necessary implication of all the facts alleged by the plaintiff, as was contended before the Supreme Court in Badat's case, and that defendants No. 2's authority to enter into that agreement must also be read as denied.

4. Turning next to the statement of the law on the point that is to be found in standard English works, in Odgers on Pleading and Practice, 19th edn., pp. 191-192, it is stated that a defendant should not plead merely that he denies specifically every allegation contained in the statement of claim, but, on the other hand, he could not be expected to write out and traverse every sentence in the statement of claim. The learned author then proceeds to state that it is usually considered sufficient when dealing with matters of inducement or other allegations which do not go to the gist of the action, to plead that the defendant denies each of the allegations contained in a particular paragraph. The learned author makes it clear that when, however, the pleader comes to those allegations which are the gist of the action he should be more precise and should plead to them specifically. To the same effect are the observations in Bullen & Leake's Precedents of Pleadings, 11th edn., p. 667, where the law on the point is stated in the following terms:.It is not sufficient for a defendant in his defence 'to deny generally the grounds alleged by the Statement of Claim'; he must deny, either expressly or by necessary implication or state that he does not admit, each allegation in the Statement of Claim of which he does not admit the truth, except damages; and such denials must be specific and not vague or evasive.

It is, however, only necessary to deal in this way with the main allegations which are the foundation of the action, e.g., those which assert that the parties entered into a certain contract, or that the defendant committed a certain tort. In such cases, if the terms of the contract are set out in the claim, the defendant must deny specifically each term which he disputes....

There are, however, in most Statements of Claim certain introductory averments which are known as 'matters of inducement1-paragraphs, in other words, which are explanatory only of the facts and not essential to the cause of action. Again, there are often at the end of the Claim allegations which form no part of the main cause of action, such as the statement that 'the defendant threatens and intends to continue the nuisance complained of or 'to repeat the alleged injuries,' etc. AH these matters may be answered by the defendant by a general denial, such as, 'the defendant denies the allegations contained in paragraphs 2, 6 and 7 of the Statement of Claim and each and every of them'; and this will have the same effect as if he had separately set out each of such allegations and then specifically denied it. It is often useful to use this comprehensive form of traverse in dealing with a lengthy Statement of Claim.

In my opinion, the correct position in law has been set out with admirable lucidity by Bullen & Leake in the above passage and that is why I have thought it fit to quote the same verbatim. As against the above statements of the law, reliance was placed by Mr. Desai on the statement that is to be found at p. 21 of Atkin's Court Forms (2nd edn.) Vol. 32, where, after stating the general proposition that every allegation of fact in the statement of claim must be denied specifically, the learned author has stated that it is common practice to use a traverse in the form 'the defendant denies specifically all the allegations in paragraph 2 of the Statement of Claim,' or that 'the defendant denies each and every allegation of fact in the Statement of Claim, as if the same had been set forth seriatim and specifically traversed,' and that traverses in that form are sufficient compliance with that rule. In support of that proposition, he has cited cases to which I will presently refer but, with respect to the learned author, I do not think it sets out the correct ratio of those decisions, or the true legal position which is more correctly set out in the passages from Odgers and Bullen & Leake to which I have referred above.

5. I will now proceed to deal with the authorities that were cited before me. The first case to which I will refer is the case of Adkins v. The North Metropolitan Tramway Co. (1894) 63 L.J.Q.B. 361, 10 T.L.R. 173, which is cited in almost every other decision on the point. In that case, the plaintiff had brought an action against the defendant-company for personal injuries and for damage to his pony and van through the alleged negligence of the defendant-company. Paragraphs 2 and 3 of the Statement of Claim set out the plaintiff's version of the facts and of the damage suffered. The defence was, 'the defendants deny each and all the several statements and allegations set out in para 2 of the statement of claim,' and a denial in precisely similar terms followed in regard to paragraph 3. An application was made to strike out the defence on the ground that it tended to prejudice, embarrass and delay the fair trial of the action. The trial Judge declined to strike out the defence, and on appeal, the Divisional Court confirmed that view and dismissed the appeal. It was in that context that Hawkins J. observed (at p. 363) that there was nothing practically to be gained by any lengthening of the defence. What is important, however, is that the same learned Judge also observed (at p. 362) that the defence was no doubt not strictly in accordance with the form as required by the wording of the rules, in so far as it was admittedly not a specific denial of each allegation of the Statement of Claim, Two things are clear, and they are, first, that the decision in that ease is not an authority for the view that a defence in such general terms is in accordance with law; and secondly, that what the Court was concerned with in the said case was the question as to whether the trial would be prejudiced, embarrassed or delayed so as to entitle the plaintiff to an order under Order 19 R. 27 of the Rules of the Supreme Court in England, which, it may be stated, corresponds to Order VI Rule 16 of our Code of Civil Procedure. An application of precisely the same nature was made in the case of Lancaster Radiators v. Gen. Motor Radiator [1946] 2 All E.R. 685 in which following the view taken in Adkin's case, the Court refused to strike out such a pleading as tending to prejudice, embarrass or delay the fair trial of the action. The facts of that case were that, in para. 4 of the Statement of Claim which in the opinion of the Court contained the gist of the action, the plaintiffs had pleaded that the defendants had wrongfully and maliciously conspired to defraud and injure the plaintiff in his business, and in para. 6 of the Statement of Claim the plaintiff had set out a number of facts and things which the defendants or one or some of them were alleged to have done in pursuance of that conspiracy. The conspiracy itself was specifically denied in para. 1 of the Written Statement, but as far as the statements contained in para. 6 of the Statement of Claim were concerned, there was only a general denial denying each and every allegation therein contained as fully as if the same had been set forth therein and denied seriatim. The trial Judge had struck out the defences under Order 19, B. 27 of the Rules of the Supreme Court of England. On appeal, that order was set aside, the appellate Court taking the view that, on the material before it, it was not possible to say that the defence tended to prejudice, embarrass or delay the fair trial of the action, and that if at the hearing it was found that the statement of defence had involved the plaintiff in unnecessary expense the Court would know how to deal with the matter by way of costs. It was also observed that it was open to the plaintiff to serve a notice to admit facts on the defendant, or to make use of the procedure by way of interrogatories, so as to obviate the inconvenience of such a blanket denial. It is, however, important to note that the appellate Court has taken the view that the defendants had started by answering in unambiguous terms the sum and substance of the statement of the claim viz. the alleged conspiracy, and that it was only in regard to the subsidiary facts, viz. acts and things which are alleged to have been done by the defendants in pursuance of that conspiracy, that there was a denial in a general form. In regard to that denial, the Court observed that no useful purpose would be served if the defendant denied one by one each allegation in the Statement of Claim. A careful reading of the judgment in the Lancaster Radiators' case, in my opinion, far from negativing the proposition as laid shown down by Odgers and Bullen & Leake in the passages referred to above, supports the same, for the Court did distinguish between the substance or grist of the statement of the claim, and subsidiary facts which Odgers and Bullen & Leake have called matters of inducement which are introductory, or averments which are consequential and form no part of the main cause of action.

6. The next case which was referred to by Mr. Desai was the case of Warner v. Sampson [1959] 1 QB. 297, [1959] 1 All E.R. 120, where this question arose in a very indirect way. In the said case, the question before the Court was one of forfeiture of a lease by reason of a general denial by defendant No. 2 who was one of the legal representatives of the lessee in his written statement denying each and every allegation in the statement of claim as if the same had been specifically set out and traversed seriatim. The trial Judge had taken the view that by putting that general denial, the defendant had denied the plaintiff-landlord's title, and the plaintiff-landlord was therefore entitled to claim forfeiture of the lease. On appeal, it was observed in regard to the same that it could not be disputed that if instead of using the word 'denied' defendant No. 2 had used the expression 'does not admit' there would have been no forfeiture. Allowing, the appeal it was held by the Court that a denial in a pleading of the landlord's title did not give rise to a forfeiture and the question in regard to the form of the pleading, therefore, did not directly arise for the decision of that Court. The point was however dealt with (at pp. 310-311) in the judgment of Lord Denning and what he stated was that a general denial of the nature in the said case was used in nearly every defence, that it usually comes at the end of it, that the pleader first goes through many of the allegations in the statement of claim and deals with them admitting some and denying others, that whenever he knows that there is a 'serious contest' he takes the allegation separately and denies it specifically, that since 1893 a general denial has been recognised as convenient and permissible, and that it amounted to a traverse no more and no less. These observations of Lord Denning, in my opinion, also support the distinction that is made by Odgers and Bullen & Leake between the gist of the action, or what Lord Denning calls an allegation about which there is a 'serious contest', and matters of inducement of an introductory or consequential nature which form no part of the main cause of action. This decision, in my opinion, therefore is of no assistance to Mr. Desai on the point I am now considering.

7. There were two other English decisions which were also cited by Mr. Desai. One was the decision in the case of Chappie v. Electrical Trades Union [1961] 3 All E.R. 612, and the other was the decision in the case of Grocott v. Lovatt 61 Sol. J. 28, but I do not propose to deal with those two decisions for the real questions that arose in them were quite different. In the former case the Court was concerned with the question as to in what cases could particulars be ordered, and in the latter case the Court was concerned with the question as to whether the trial Court was right in withdrawing from the jury a particular question by reason of the form of the pleadings. I may, however, point out that in the Grocott's case, though the appellate Court took the view that the trial Judge was right in treating the case as one in which the defendants had admitted publication of the handbill, they have observed in clear terms that the defence had been pleaded 'in a loose and irregular form.' I do not think that either of these decisions is of any assistance to me for the purpose of giving a ruling on the point which I am now considering.

8. Apart from relying on the decision in Sadat's case which I have already dealt' with above, Mr. Shah on behalf of the plaintiff relied on two decisions of Division Benches of the Nagpur High Court in the cases of Bishabkumar Mohanlal v. Motilal Kasturchand and Govindram v. Gulab Rao. . I do not think it necessary to discuss Govindram's case as it does not deal with a denial in a comprehensive form, as in the present case. Bishabkwmar's case is, however, in point as the question which arose therein was whether a denial in general terms viz. 'para, 1 of the plaint is denied' could be read as a denial of the minority of the plaintiff till a particular date which was specifically pleaded in para. 1 of the plaint. The plaintiff's suit was sought to be brought within time on the express allegation of minority. It was held (para. 7) that it was necessary for the defendant to plead specifically whether he accepted the plaintiff's plea of minority or not, and that the general denial made by the defendant could not be read as referring to the same. I agree fully with the view taken in Bishabkumar's case in so far as the fact of minority till a particular date was not a subsidiary fact which could be covered by the general denial in that case. It supports me in the view which 1 am taking in the present Order. Mr. Shah has also relied upon the decision of a single Judge of the Patna High Court in the case of Binda Prasad v. United Bank of India : AIR1961Pat152 , but apart from the observations made in the said case that having regard to Rule 3 of Order VIII the main allegations which formed the foundation of the suit should be correctly dealt with and expressly denied, and that Rule 4 of that Order was an amplification of Rule 3, I do not find anything which is of use to me for the purpose of the present Order.

9. On a consideration of the above standard works and authorities, I have come to the conclusion that the correct position is as laid down in Odgers on Pleading and Practice and in Bullen & Leake on Precedents of Pleadings in the passages set out above and that, as far as the facts constituting the gist of the action, or what is the same thing, the bundle of all the essential facts comprising the cause of action are concerned, the averments in the plaint must be denied specifically in the Written Statement, if it is intended to dispute the same. A denial in a comprehensive form similar to the one which is to be found in para. 5 of the Written Statement in the present case is regarded as a sufficiently specific denial only in regard to subsidiary facts which are either introductory or explanatory as being matters of inducement, or are consequential and form no part of the cause of action of the plaintiff. That is the ratio of the English authorities discussed above and is, in my opinion, the only reasonable construction that can be placed on the terms of Order VIII, Rule 3 of the Code of Civil Procedure. If Mr. Desai's contention were to be accepted, it would have to be held, as a logical sequitur, that a Written Statement consisting of a single sentence, such as, 'the deft, denies each and every statement, submission and contention contained in the plaint as if the same had been set out seriatim and specifically traversed,' was in compliance with Order VIII, Rule 3 of the Code of Civil Procedure. To take such a view would be to reduce pleadings to a mockery and to defeat their very purpose. The terms of Order VIII, Rule 3 of the Code of Civil Procedure are wide enough to cover both a denial as well as a non-admission, for what is required to be dealt with specifically is each allegation of fact of which the defendant 'does not admit the truth.' There is, therefore, no inconsistency between the terms of Order VIII, Rule 3 and the terms of Order VIII, Rule 5 of the Civil Procedure Code. It is true that the words 'or by necessary implication' which occur in Order VIII, Rule 5 are not to be found in Order VIII, Rule 3 but that, in my opinion, makes no difference, for those words refer only to a denial and not to a non-admission. They are intended to cover a case in which the positive version set out in the Written Statement cannot possibly co-exist with the positive case made out by the plaintiff in his plaint. Except in clear cases of a direct inconsistency between the respective versions of the parties, there would be no scope for inferring that a particular averment in a plaint had been denied in the Written Statement by necessary-implication for the purpose of Order VIII, Rule 5 of the Code. The position in regard to Order XIV, Rule 1 of the Code is, however, in my opinion, different, in so far as there is nothing in Order XIV, Rule 1 to cover the case of a mere non-admission as giving rise to an issue. If, therefore, in regard to a fact which is pleaded in, the plaint, the defendant in his Written Statement merely states that he does not admit the same, the legal effect will only be that the plaintiff will be required to prove that fact as he cannot avail himself of Order VIII, Rule 5 of the Code or Section 58 of the Evidence Act. The defendant cannot, however, ask the Court to frame an issue in regard to the same. If it is intended to make a particular averment the subject-matter of an issue in a suit, it must be denied, and a mere non-admission would not justify the Court framing an issue in respect of it. The mere fact that, for the purpose of framing issues the Court may, as laid down in Order XIV, Rules 3 and 4, have regard to certain matters outside the pleadings in the suit cannot make any difference in regard to this position, for no issue can be framed on the basis of any such material de hors the pleadings which is inconsistent with the pleadings or which relates to a fact which by reason of the rule of pleading contained in Order VIII, Rule 5 must be deemed to have been admitted by the defendant, or which has not been denied by the defendant in his Written Statement as required by Order XIV, Rule 1. The provisions contained in Rules 3 and 4 of Order XIV are intended to facilitate the proper framing of issues and cannot be availed of so as to wipe out or nullify the basic principles embodied in Order VIII, Rules 3 and 5 and O, XIV, Rule 1.

10. Turning to the facts of the present case in the light of the construction which I have placed in the preceding paragraph on the relevant provisions of the Code, it cannot be disputed that the fact averred in para. 6 of the plaint that defendants No. 2 acted on behalf of defendants No. 1 for the purpose of entering into the agreement in question is a fact which is a part of the gist of the action. It is, in my opinion, one of the bundle of essential facts that constitute the plaintiffs' cause of action in this suit for, in the absence of such an averment, the plaintiffs would have no cause of action as against defendants No. 1 on the basis of that agreement. The provisions of the Code discussed above require that such a fact should have been specifically denied if an issue was sought to be raised in regard to it, or not admitted if the plaintiff was to be put to proof of that fact. A comprehensive denial of the nature that is to be found in para. 5 of the Written Statement of defendants No. 1 cannot, in my opinion, amount to a specific denial or a specific non-admission of such a fact. Defendants No. 1 not having denied the authority of defendants No. 2 to act as the agents of defendants No. 1 for the purpose of entering into the agreement pleaded in para. 6 of the plaint, I must, in view of the clear terms of Order XIV, Rule 1 of the Code of Civil Procedure, decline to raise an issue in respect of the same in terms of issue No. 5 of the draft issues submitted by defendants No. 1.


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