Doctrine of non-traverse

Supreme Court, in Sangram Singh v. Election Tribunal, Kotah, (S) AIR 1955 SC 425.

Rule 3, Order 8 lays down that a general denial of the grounds alleged, in the plaint shall not be sufficient, but each and every allegation of fact must be specifically dealt with. It does not of course mean that every allegation in the plaint should be reproduced at length in the written statement for the purpose of denial. The main allegations which form the foundation of the suit, should be dealt with in that way and expressly denied. Such facts should be taken up separately as far as possible in the order stated in the plaint and defendant should either admit them or deny or state definitely that he does not admit.

From Rule 3, Order 8 therefore, it is plain that it requires that the defendants must take each fact which is alleged against him separately and say that he admits it or denies it, or does not admit it. It is not merely denial which is meant, but the rule covers non-admission for the defendant is to deal specifically with every allegation of fact of which he does not admit the truth, the exception being in the case of only damages. Rule 4, Order 8, makes it further clear by laying down that the denial of allegations of fact in the plaint by a defendant must not be evasive denial, he must not do so evasively, but answer the point of substance. Rule 41 is an amplification of Rule 3.

Evasive denial, therefore, is not sufficient; the purport and effect of the denial must be clear and distinct. Rule 5, further provides that every allegation of fact in the plaint will be taken to be admitted (i) if not denied specifically, or (ii) if not denied by necessary implication or (iii) If not stated to be not admitted. Rule 5 is really a rule of construction of defendant’s pleadings. It does not apply where no written statement has been filed. The rule, in Rule 5, is known as doctrine of non-traverse.

The first paragraph of rule 5, as such states what amounts to admission of fact in a pleading, Rule 5 therefore, embodies the doctrine of non-traverse by providing that every allegation of fact in the plaint, if not denied in the written statement, shall be taken to be admitted by the defendant, the only exception being in the case of a person under disability. A statement by the defendant in his pleading that an allegation is not admitted is equivalent to a denial by necessary implication.

The doctrine embodied in Rule 5, however, does not apply where the averments in the plaint are vague and inconclusive. Before the introduction of this new rule 5 in the Code of 1908 it was held by Lord Kingsdown in Mt. Ammdmoyee v. Sheeb Chunder Roy, 9 Moo I. A. 287, at page 301 (PC), that courts will not apply to pleadings in India the strict rule that averments in a plaint not traversed in the answer, are to be taken as admitted.

As Goddard L. J. said in Pinson v. Lloyds and National Provincial Foreign Bank, Ltd., (1941) 2 All ER 630 (641), which was quoted with approval by Sellers L. J. in Inland Revenue Commissioners v. Jackson, (1960) 3 All ER 31 (CA):

“A bare traverse is a perfectly good plea provided that all that is thereby intended is to put the plaintiffs to proof of bis case. It may be, however, that concealed in a traverse there is an affirmative case, and this may well be so when the traverse is of a negative averment. If it is clear to the court, either from the nature of the case or from the admission of counsel or otherwise, that it is intended to set up an affirmative case, so that the traverse is what has been described as a pregnant negative, then it seems to me that particulars of the affirmative case ought to be delivered. Otherwise, both the opposite party and the court will be in doubt as to what issues are to be determined at the trial.”

%d bloggers like this: