What is important to note is that the proviso to Rule 5 gives to the Court the power to insist that notwithstanding the fact that there is an implied admission, because of non-traversing of a fact, the plaintiff proves his statement by adducing evidence. The exercise of this discretion cannot be arbitrary and the Court may have to bear in mind the standard of drafting obtaining at the place, where the suit is instituted. Thus, in a given case, when the counsel's default leads to an implied or express admission, the remedy of the defendant does not lie in withdrawing the admission by making amendment in the written statement, but in making out a case for the Court to exercise its powers under the proviso to Rule 5 of Order 8 and insist upon the plaintiff to prove his case notwithstanding the admission - implied or express - made in the written statement. In the case at hand too, if the learned trial Court finds that non-traversing of the statements made in paras 3 and 15 to 19 of the plaint have been impliedly admitted by the defendant and still if the defendant satisfies the learned trial Court that such admission was due to fault of his earlier counsel, the Court may, if satisfied, insist on the plaintiffs, to prove the statements made in paras 3 and 15 to 19 of the plaint.
36. Coupled with the above, it is pertinent to note that apart from the fact that Order VIII, Rule 5 permits the Court to insist on a plaintiff to prove a fact notwithstanding an implied admission, which the defendant might have made, even Section 58 of the Evidence Act makes it clear that notwithstanding a defendant's admission, express or implied, made in his written statement, a Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.
IN THE HIGH COURT OF GAUHATI
Decided On: 30.10.2006
Uttam Chand Kothari Vs. Gauri Shankar Jalan and Ors.
Hon'ble Judges/Coram:
I.A. Ansari, J.
Citation: AIR 2007 Gau 20, 2007 (1) GLT 37, MANU/GH/0209/2006
