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Doctrine of non Traversal

The article talks about Order VIII Rule 5 of the Code of Civil Procedure that deals with the doctrine of Non-Traversal. This is a settled position of law which states that if an allegation made in the plaint has not been denied specifically or by necessary implication in a written statement, then it is treated as admitted. Also, if a fact is clearly asserted and also supported by a witness in cross-examination and there is no denial of the said fact, then such fact will be held to be proved.

The author starts by explaining the meaning and objective of this rule. Further, it establishes a relation between Rule 3,4 and 5. The strict position of this doctrine under English law has also been mentioned. The author has also discussed the difference between non-admission and denial; question of fact and question of law. All the related case laws have been mentioned to better explain the concept.

Introduction
Doctrine of non-traversal which stands as a legal phrase for “if not denied, accepted” is a well settled position of law under Order VIII Rule 5 of the Code of Civil Procedure. It means that where a material averment is passed over without specific denial, it is taken to be admitted. The rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. The allegation should be taken to be admitted, if the plea is not taken in that manner[1].
 
Objective
The objective of this rule is to narrow the issues that are to be tried in the case and to enable the parties to find exactly what real point is to be discussed and decided[2].
There was a case of Food Corporation of India v. Municipal Committee, Jalalabad[3], in which no challenge was made to the averments made that assessment of property tax was based on agreed fair rent. It was held that it can’t be contended that the agreed rent was not fair rent and the provisions related to fixation of annual letting value had been violated.
 
Applicability
The provisions of this rule apply to suits and execution proceedings but it does not apply to petitions under Article 226 and 227 of the Constitution, which talks about the powers of the High Court. The general principles relating to pleadings and failure to traverse averments in a petition would apply to such petitions. The court usually proceeds on the rule of prudence and not on the requirement of law in divorce cases.[4]

There was a case of Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati[5], in which the Apex Court observed that the court usually doesn’t decide a question of divorce merely on the basis of admission of parties. But it doesn’t mean that the court has no power to consider the relevant provisions of law. Therefore, it can make an order keeping in view the provisions of Order 8 Rule 5 of the code and it can be said to be in accordance with the law.
 
Smt. Asha Kapoor v. Sh. Hari Om Sharda [6] (Relation between Rule 3, 4 and 5)
Justice V.B. Gupta of the Delhi High Court has enunciated the ‘Doctrine of Non-Traverse’ in this case. The extract of the judgement constitutes of Order VIII Rule 3, 4 and 5 of the code. It states that the effect of these three rules when read together is: the defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order 8 Rule 5 of the Code.

Similarly, Supreme Court in M. Venkataraman Hebbar v. M. Rajgopal Hebbar and others[7] observed that if a plea that was pertinent for the purpose of maintaining a suit had not been specifically traversed, the court was entitled to infer that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.[8]
 
Consequences of Rule 5
This rule relieves the plaintiff from proving allegations made in the plaint if they are not denied specifically or by necessary implication. So, the refusal to admit the facts must also be expressed and specific. General denial is no denial at all like what was stated in the case of Tek Bahadur v. Debi Singh[9].

However, it is not necessary that every allegation in the plaint should be reproduced in the written statement and denied. The allegations which form the foundation of the suit should be dealt with and clearly denied. All such averments should be taken up separately and the defendant should either admit or deny it.

There was a landmark judgement of the case Lohia Properties Pvt. Ltd. v. Atmaram Kumar[10], in which the service of notice terminating tenancy of defendant B had been specifically alleged in the plaint by the plaintiff A. B also stated that the notice of ejectment as referred in the plaint is not according to law. The Court in this case invoked Rule 5 and held that the reply was an implied admission on the basis of which a decree could be passed.[11]
 
Difference Between Non-Admission and Denial
When a party denies an averment, he contends that such fact had never happened and also requires the other party to prove it. But when a party doesn’t admit an averment, he intends that the other party prove the averment. A party can deny an allegation of fact when it is within his knowledge but doesn’t admit when he is not aware of such fact. In both these cases, the effect is that the allegation would not be deemed to be admitted.[12]
 
Question of Fact and Question of Law
Questions of fact should be pleaded in the pleadings by a party raising such questions whereas a pure question of law need not be pleaded. If all the facts have been placed on record by a plaintiff or defendant without deducing legal position, the court should not reject the pleading. It is the duty of the court to apply that law of the facts and to decide the case in accordance with the law.

In the case of Balraj Taneja v. Sunil Madan[13], a suit of specific performance of contract was filed by A against B. The suit filed by A was decreed as B never filed a written statement. But, Supreme Court observed that even if B had not filed a written statement, the court was bound to apply his mind, to consider all the facts as to whether A was willing to perform his part of the contract and whether it was correct to pass a decree of filing a written statement.
 
English Law
In England, the rule as to admission by non-denial of fact is very strict. The defendant can’t be permitted to traverse an averment made by the plaintiff at the time of trial, if he omits to traverse it in the statement of claim.

But, in India, if the defendant has not denied the allegation of the plaintiff in his written statement, the court may ask the plaintiff to prove such fact at the hearing of the suit.[14]
 
Conclusion
So, basically this rule talks about the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. It can be concluded that the written statement must deal specifically with each allegation of fact in the plaint and the denial by the defendant must be specific and not evasive. If his denial is evasive, the said fact shall be taken to be admitted. Then, in such event, no other such proof is necessary as the admission is itself the proof. This doctrine was of construction of pleadings and could apply to defendant’s pleading.

End-Notes:
  1. General rules of denial, available at https://www.legalbites.in (last visited on May 30, 2020); Doctrine of Non-Traverse, available at https://www.legalblog.in.
  2. Doctrine of Non-Traversal, available at https://www.legabites.in (last visited on May 30, 2020).
  3. AIR 1999 SC 2573.
  4. Doctrine of Non-Traversal, available at https://www.legabites.in (last visited on May 30, 2020).
  5. AIR 1965 SC 364.
  6. (2010) 171 DLT 743.
  7. 2007 (5) SCALE 598.
  8. Doctrine of Non-Traverse: The concept explained, available at https://www.legalblog.in (last visited on May 30, 2020).
  9. AIR 1966 SC 292.
  10. (1993) 4 SCC 6.
  11. Doctrine of Non-Traversal, available at https://www.legabites.in.
  12. Ibid.
  13. AIR 1999 SC 3381.
  14. Doctrine of Non-Traversal, available at https://www.legabites.in (last visited on May 30, 2020)

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