TMI Blog1971 (12) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery 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 defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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, Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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