Whether court can insist on plaintiff to prove his case if it can not allow withdrawal of implied admission in a written statement?

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

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What is doctrine of implied admission in arbitration proceeding?

 By a letter dated 28th October,2009 the minutes of the above meeting held on 20th October,2009 were forwarded to the Appellant's Chief Manager and Secretary, by the Respondent. Thereafter, this letter alongwith the minutes of the meeting were forwarded by the Deputy Manager (Legal) of the Appellant to Mr.S.K.Kaul, Chief Manager (Admn) & Secretary, to Mr.D.S.Garde, Senior Manager (CT) and to Mr.B.V.Rao, Manager (Finance) and same was duly received by them. Things did not stop at this, but further correspondence was exchanged between the parties on the basis of this meeting. All these documents formed part of the record before the learned Arbitrator in the additional affidavit of evidence filed on behalf of the Respondent. As can be seen from the record admittedly these were subsequent developments which had taken placed during the pendency of the arbitration proceedings. It is, thus, not  the case that these documents could be placed on record before the learned Arbitrator at the threshold, alongwith the statement of claim.

Further, the Appellant did not in any manner dispute these documents as placed on record in the additional affidavit of evidence as filed on behalf of the Respondent. Admittedly at no point of time, till the arbitration proceedings were closed, for an Award to be delivered, the Appellant neither disputed the minutes of the meeting and the settled claim as offered to be paid on behalf of the Appellant. Further at no point of time an opportunity to cross examine the witness of the Respondent was sought for by the Appellant. If this be the case, then, in our opinion, it was not in any manner inappropriate for the learned Arbitrator to proceed to decide the dispute on the basis of these facts which stood uncontroverted. The minutes of the meeting dated 20 th October,2009 and the correspondence in relation thereto which includes even internal letters of the Appellant, remain uncontroverted and the facts contained therein being not disputed became available to the learned Arbitrator for pronouncing the Award. We, thus, do not find any substance in the contention as urged on behalf of the learned Counsel for the Appellant that in the fact situation there was a burden on the Respondents to prove these documents and/or that the Respondent has failed to discharge the said burden namely to prove the said minutes of the meeting, and the correspondence in relation thereto and thus these documents were not admissible in evidence. In our opinion, the submission is wholly unfounded as it is clear from the facts of the present case, that the Appellant never disputed the affidavit of evidence alongwith the annexed documents. The Appellant's contention cannot be accepted also for the reason that the Appellant did not, in any manner known to law, controvert the deposition as contained in the additional affidavit of evidence of the Respondents and/or sought an opportunity to cross examine the deponent and/or disputed any of the documents which were annexed to the same and which were part of the record before the learned Arbitrator. What could therefore be clearly inferred by the learned Arbitrator, was the admission of these facts by the Appellant. Non traverse of these facts clearly makes applicable the doctrine of implied admission as would flow from Section 58 of the Evidence Act. Further it is also not a case that the Appellant has placed on record any evidence to the contrary. Thus it is a case where the principles as contained inSection 58 of the Indian Evidence Act would get clearly attracted being one of the basic rules of evidence. The learned Arbitrator had correctly proceeded on the ground that the Appellant had admitted the facts in regard to the minutes of meeting dated 20th October,2009 and the documents in relation thereto.

Bombay High Court

Jawaharlal Nehru Port Trust vs Ornate Multi Model Carriers Pvt. ... on 5 July, 2016

CORAM : ANOOP V. MOHTA & G.S. KULKARNI, JJ.

Citation:2016(6) MHLJ742

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