The Doctrine of Non-Traverse in Indian Civil Procedure

The Doctrine of Non-Traverse in Indian Civil Procedure: A Judicial Exposition

Introduction

The doctrine of non-traverse, a cornerstone of pleading in Indian civil jurisprudence, mandates that allegations of fact made in a plaint, if not specifically denied or stated to be not admitted in the defendant's written statement, shall be taken as admitted. This principle, primarily enshrined in Order VIII of the Code of Civil Procedure, 1908 (CPC), serves to narrow down the scope of dispute between parties, ensure fair notice, prevent surprise at trial, and promote expeditious adjudication. As observed by the Debts Recovery Tribunal in Oriental Bank Of Commerce v. Anand Steel Trading Company, the term "traversal" means denial, and "non-traversal" implies "no denial," which can be express or implied, applicable in the context of a written statement.[10] This article seeks to analyze the doctrine of non-traverse through the lens of judicial pronouncements, drawing extensively from the provided reference materials to elucidate its statutory basis, interpretation, application, and interplay with other legal principles in India.

Conceptual Moorings and Statutory Basis: Order VIII CPC

Order VIII of the CPC lays down the rules for pleadings by the defendant, specifically the written statement. Rules 3, 4, and 5 are pivotal to understanding the doctrine of non-traverse.

The Mandate for Specificity: Rules 3 and 4

Order VIII Rule 3 of the CPC requires that the denial by the defendant must be specific. It states: "It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages."

Order VIII Rule 4 further elaborates on the nature of denial, proscribing evasive denials: "Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances."

The Supreme Court in Badat And Co. Bombay v. East India Trading Co. emphasized the importance of adhering to Order VIII Rules 3, 4, and 5, ensuring precise pleadings and that defendants do not effectively deny critical factual allegations regarding arbitration processes and awards.[4] Similarly, in Sushil Kumar v. Rakesh Kumar, the Apex Court, referring to Order VIII Rules 3 and 5, held that vague denials of familial relationships and age-related statements constituted admissions.[3] The Delhi High Court in Asha Kapoor v. Hari Om Sharda succinctly explained that the effect of Order VIII Rule 3 read with Rules 4 and 5 is that the defendant is bound to deal specifically with each allegation of fact not admitted; facts not specifically dealt with will be taken to be admitted under Order VIII Rule 5.[7]

The Consequence of Evasion: Rule 5 and Deemed Admissions

Order VIII Rule 5(1) CPC embodies the core of the doctrine of non-traverse: "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."

The Bombay High Court in THE MAZANIA OF THE TEMPLE OF SHREE MAHALAXMI AND ITS AFF. THR. ITS ATTORNEY, MAHESH KHANDOLKAR. v. ARVIND GAJANAN SHENVI GHATKAR AND ANR. reiterated that Order VIII Rule 5 mandates every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted, shall be taken as admitted, saving only a defendant under legal disability.[12] The Delhi High Court in Asha Kapoor v. Hari Om Sharda termed Order VIII Rule 5 as the doctrine of non-traverse, meaning that where a material averment is passed over without specific denial, it is taken to be admitted.[7] This was also noted by the State Consumer Disputes Redressal Commission in RAMKRISHNA RISHIKUMAR SINHA v. VAIDEHI AKASH HOUSING PVT LTD, referencing the Supreme Court's explanation of the doctrine.[20]

Judicial Application and Interpretation of Non-Traverse

Indian courts have consistently applied and interpreted the doctrine of non-traverse to ensure that pleadings are precise and that parties are not taken by surprise.

The Imperative of Specific Denial in Pleadings

The judiciary has underscored that a mere general denial or an evasive statement is insufficient to counter the allegations in a plaint. In Jaspal Kaur Cheema And Another v. Industrial Trade Links And Others, the Supreme Court, citing Badat and Co. v. East India Trading Co. and Sushil Kumar v. Rakesh Kumar, emphasized the necessity for defendants to categorically deny each allegation, failing which it amounts to an admission.[2]

The Delhi High Court in Abdul Hamid & Another v. Nur Mohd., citing Jahuri Shah v. Dwarika Prasad Jhunjhunwala, held that a statement by a defendant of having "no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial."[8] Consequently, where there was no specific averment that a house was not residential, this non-traverse was put against the landlord.[8] The Patna High Court in Binda Prasad v. United Bank Of India Ltd. discussed the nature of a "bare traverse," noting that while it can be a good plea to put the plaintiff to proof, if it conceals an affirmative case (a "pregnant negative"), particulars of that affirmative case ought to be delivered.[9]

Deemed Admissions: The Core of Non-Traverse

The direct consequence of failing to specifically traverse an allegation is its deemed admission. In Sushil Kumar v. Rakesh Kumar, the respondent's vague denial regarding age-related statements was treated as an admission under Order VIII Rules 3 and 5 of the CPC.[3] The Calcutta High Court in Sri Bibhuti Bhusan Banerjee…Plaintiff; v. Sri Usha Charan Banerjee & Anrs.…Defendants. observed that the principle governing non-traverse can be deliberate and intentional, leading to the case stated in the plaint remaining admitted.[21]

Non-Traverse in the Absence of Pleadings or Response

The doctrine's application extends, with some nuances, to situations where no responsive pleading is filed. The Patna High Court in Pyrites Phosphates And Chemicals Ltd. v. State Of Bihar And Others, a writ proceeding, held that where respondents chose not to appear or file any counter-affidavit despite valid service of notice, "applying the doctrine of non-traverse it must be held that the respondents do not deny and they accept the claim raised by the petitioner against them."[15] Similarly, the Allahabad High Court in Gopal Swarup Chaturvedi v. U.P State Electricity Board invoked the doctrine of non-traverse where respondents failed to counter facts despite the expiry of about eight years, holding that the notice issued to a deceased person was a nullity and that there was no supply of electricity as alleged.[19]

In M/S. Sppl Hotels Pvt. Limited & Anr. v. Allahabad Bank & Ors., the Calcutta High Court noted the submission that failure to file an affidavit-in-reply, despite opportunity, should lead to the petitioners being deemed to have admitted allegations made in the affidavit-in-opposition, based on the doctrine of non-traverse.[17] The Delhi High Court in Deputy Commissioner Of ... v. Deputy Commissioner Of also observed that averments in an affidavit not controverted by a counter-affidavit should be deemed admitted by the doctrine of non-traverse.[18]

Distinguishing Non-Traverse from Ex-Parte Proceedings and the Court's Discretion

It is crucial to distinguish a judgment based on non-traverse from an ex-parte judgment. The Bombay High Court in Lachhiram Chudiwala (H.U.F) v. Bank Of Rajasthan Limited clarified that if a court, despite the defendant's failure to file a written statement, calls upon the plaintiff to lead evidence, it is not proceeding under the rule of non-traverse (Order VIII Rule 5 or 10), but rather towards an ex-parte judgment. A judgment under the principle of non-traverse is typically not amenable to a remedy under Order IX Rule 13 CPC, whereas an ex-parte judgment due to non-appearance is.[5] This highlights the proviso to Order VIII Rule 5(1), which grants the court discretion to require proof of facts even if admitted by non-traverse.

However, a different perspective was offered by the Patna High Court in Bhageran Rai And Others v. Bhagwan Singh And Others. It was held that the principle of admission by non-traverse under Order VIII Rule 5 applies only where the defendant has put in a written statement. If no written statement is filed, the defendants are not debarred from giving evidence traversing the plaint's allegations. The court reasoned that if non-filing of a written statement amounted to admission, then in uncontested cases, a judgment could be founded on the plaint alone without evidence, which is not what the CPC enjoins, unless specifically excepted by law.[6] This suggests a limitation on the automatic application of deemed admissions solely due to the absence of a written statement, emphasizing the plaintiff's general burden to prove their case.

The Limits of Non-Traverse: Pleadings v. Proof

The Supreme Court in Manager, Reserve Bank Of India, Bangalore v. S. Mani And Others cautioned that "Pleadings are no substitute for proof."[16] In that case, the workmen contended they had worked for 240 days. The Court noted that even if letters from the union containing such statements were not replied to by the appellant, the allegations therein could not be said to have been proved, especially when denied in pleadings and not substantiated by evidence. "Only by reason of non-response to such letters, the contents thereof would not stand admitted. The Evidence Act does not say so."[16] This underscores that the doctrine of non-traverse, while significant for pleadings, does not entirely absolve a party from the burden of proof, particularly when facts are disputed in pleadings, even if not specifically addressed in ancillary correspondence.

Interrelation with Allied Procedural and Evidentiary Principles

The doctrine of non-traverse operates in conjunction with other key legal principles that facilitate the adjudication process based on admitted facts.

Section 58 of the Indian Evidence Act, 1872: Facts Admitted Need Not Be Proved

Section 58 of the Indian Evidence Act, 1872, states that "facts admitted need not be proved." This provision complements the doctrine of non-traverse. Once a fact is deemed admitted due to non-traverse under Order VIII Rule 5 CPC, Section 58 of the Evidence Act generally obviates the need for the plaintiff to adduce evidence to prove that fact. The Supreme Court in Seth Ramdayal Jat v. Laxmi Prasad, while dealing with admissibility of admissions, referred to Section 58, noting that "facts admitted need not be proved."[1] The Bombay High Court in THE MAZANIA OF THE TEMPLE OF SHREE MAHALAXMI... also linked Order VIII Rule 5 with Section 58 of the Evidence Act, though noting the proviso to Section 58 which allows the court, in its discretion, to require proof of admitted facts.[12]

Order XII Rule 6 of the CPC: Judgment on Admissions

Order XII Rule 6 CPC empowers the court to pronounce judgment at any stage of the suit based on admissions of fact made in pleadings or otherwise, whether orally or in writing. Deemed admissions arising from non-traverse under Order VIII Rule 5 can form the basis for a judgment under Order XII Rule 6. The Debts Recovery Tribunal in Oriental Bank Of Commerce v. Anand Steel Trading Company discussed both the doctrine of non-traversal and Order XII Rule 6.[10] The Orissa High Court in KHAGENDRA SETHI v. ANNAPURNA SETHI also noted that under Order XII Rule 6, a suit can be decided on the basis of admitted facts, documents, and pleadings.[13]

The Principle of Estoppel

While distinct, the doctrine of non-traverse can have an effect similar to estoppel in practice, preventing a party from subsequently denying facts they were deemed to have admitted through their pleadings. In Jaspal Kaur Cheema And Another v. Industrial Trade Links And Others, the Supreme Court, while primarily dealing with estoppel under Section 116 of the Evidence Act (tenant estopped from denying landlord's title), also emphasized the consequences of failing to specifically deny allegations, which leads to admissions.[2] The principle that a party cannot approbate and reprobate, as discussed in VED PARKASH v. KANGRA CO-OPERATIVE BANK LTD AND OTHERS,[11] shares a conceptual similarity with the expectation of consistency in pleadings that underpins the doctrine of non-traverse.

Conclusion

The doctrine of non-traverse, rooted in Order VIII Rules 3, 4, and 5 of the Code of Civil Procedure, 1908, is a vital tool for streamlining civil litigation in India. By compelling defendants to respond specifically to each factual allegation in the plaint, it crystallizes the actual points of contention, thereby saving judicial time and resources. Judicial interpretations have consistently reinforced the need for clear, unambiguous, and specific denials, treating evasive or general denials as deemed admissions. However, the courts also retain discretion, particularly under the proviso to Order VIII Rule 5(1) and in situations where no written statement is filed, to require the plaintiff to prove their case. The interplay of this doctrine with Section 58 of the Evidence Act and Order XII Rule 6 of the CPC further facilitates the disposal of cases based on admitted facts. While powerful, the doctrine must be applied judiciously, ensuring that procedural rigor does not lead to substantive injustice, and always balancing the need for specific pleadings with the overarching goal of fair adjudication.

References