1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 789 OF 2008. Mr. Norman Edward D'Souza, of major age, resident of House No.306A, Assagao, Bardez-Goa, represented by Mr. Bernard Nazareth. ... Petitioner. Versus Dr.Luiza Maria Ruth Belinda Fernandes alias Beminda Ruth Fernandes, of major age, married, resident of Miramar, Panaji, Ilhas-Goa. ... Respondents. Mr. P. S. Rao, Advocate for the petitioner. Mr. J. E. Coelho Perreira, Senior Advocate with Mr. S. Karpe, Advocate for the respondent. CORAM :- SMT. R. S. DALVI, J. DATE : 15 TH April, 2009 . ORAL ORDER : In this writ petition, the order dated 21.11.2008 of the learned Civil Judge, Senior Division, Mapusa allowing amendments to the written statement, is challenged. 2. The challenge is on the ground that initial written statement had evasive denials, which amounted to admission and which necessitated a judgment on admission under 2 Order 12, Rule 6 of C.P.C. to be passed. Though the written statement has been filed since 1.4.1998, no application for any judgment on admission under Order 12, Rule 6 of the C.P.C. is made. On the said tall claim in the argument, it would be necessary to see the plaint as well as the written statement. The petitioner's Advocate has taken me through both of them. 3. The plaint shows the tracing of the plaintiff's title in respect of the suit property. The plaint also shows how the suit property under Survey No.13 is equivalent to the new survey No.62/2, how some area is included and some area not included in the said survey number, and that upon certain amalgamation proceedings an area of the suit property is shown to be 1175 square metres. The plaintiff claims title under the deed of sale dated 24.07.1996 executed by one Eliza, who inherited the suit property from one Matilda. All these averments are made in paragraphs Nos. 2 to 10 of the plaint. Further averments in the plaint show that one Antonio Coutinho claimed the suit property and sought to sell it to one Kalangutkar who sought to sell it to the defendant. The plaintiff disputes the rights of any of these parties. A meeting of this plaintiff and the defendant held by 3 the relevant Panchayat resulted in an agreement to resurvey the suit property and the plaintiff claims that the defendants' construction be stopped. 4. In the written statement the defendant denied all the averments in paras 2 to 10 of the plaint as also the averments in paras 11,12 and 15 and admitted averments in paras 13 and 14. The defendant admitted the meeting held by the Village Panchayat but not any agreement to stop construction and disputed the plaintiff's document of title. The defendant claimed to be an owner under a sale deed dated 15.11.1995 and claimed to construct on the suit property under a valid licence and hence resisted demolition. 5. In the amendment application the defendant sought to add specific separate denials at the end of para 2 of the written statement. The defendant traced her title and disputed the initial title of Matilda or the inheritance by Eliza. The defendant averred about the title of Coutinho in respect of the entire suit property uninterruptedly and continuously as owner, transfer of that title under the Sale Deed dated 15.9.70 to Kalangutkar, who is also stated to have acquired title by prescription and then to the defendant 4 under the Sale Deed dated 15.11.95. The defendant disputed any right in the plaintiff under the Sale Deed dated 24.7.96 as well as the power granted by Eliza in favour of Kalangutkar under which the plaintiff acquired this suit property. Further by way of addition of para 2(a), the defendant sought to explain the transfer of Survey Nos. 62/2 and 65/2. No new facts have been introduced. Challenge to the amendments on that ground is not even made. 6. In the original written statement the averments in paragraph Nos. 2 to 10 are 'totally denied'. The petitioner's Advocate contends that this is an evasive denial. Evasive as well as specific denials are explained in Rules 4 and 5 of Order 8 of the C.P.C. Order 8 Rule 4 and the relevant part of Order 8, Rule 5 runs thus : “Order 8, Rule 4 – Evasive denial - 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 5 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.” Order 8 Rule 5(1)- Specific denial – (1) 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. Hence, the specific denial is a denial specifically of all the averments in specific paragraphs of the plaint. Specific denials may be made one after another with regard to and in respect of each of the allegations in the plaint since each must be denied specifically. Nontheless the denial is specific if it is made in respect of several statements or several paragraphs of the plaint. However, under Order 8, Rule 3 of C.P.C. each statement in the plaint has to be specifically denied and it is not sufficient to generally deny the averments in the plaint. Order 8, Rule 3 of the C.P.C. runs thus : 6 “ Order 8, Rule 3 – Denial to be specific – 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. ” 7. It has to be seen whether such specific denial is made in paragraph No.2 of the written statement. The defendant (the respondent herein) has made specific denials – in fact total denials – of all the statements in paragraph Nos. 2 to 10. She has not separately denied all of these statements. These statements comprise the various aspects of tracing of title of the petitioner's property from the initial owner to the party who inherited it and then to the plaintiff, the area of the property and new survey numbers. In the amendment sought by the defendant, each of these statements are sought to be separately, specifically denied. Further the defendant has explained the tracing of her title, the separate survey number of the suit property and the construction thereon. This is in accordance with Order 8, Rule 3 of C.P.C., which requires the defendant not to deny generally the grounds alleged by the plaintiffs, but to deny specifically each allegation of the fact, which he does not 7 admit as true. One specific denial having been made in the written statement, several specific denials along with explanation of the defendant's title in replying to several specific averments in the plaint are sought to be made in the amendment application. 8. It is contended by the petitioner's Advocate that because the denials are not separately and specifically made, it will tantamount to admission of the facts mentioned in paragraph Nos. 2 to 10 of the plaint. That contention is incorrect. 9. Under Order 8, Rule 5 of C.P.C, specific denial is a denial specifically made and includes denial made by necessary implication or by stating that the averments in the plaint are not admitted. Paragraph No.2 of the written statement showing that the contents of paragraph Nos. 2 to 10 of the plaint are totally denied is, therefore, not evasive denial, but specific denial though generally made. The defendant has, presumably upon legal advise, at the time of hearing of the suit, sought to make specific denials separately along with explanation of her title. In the amendment application, the defendant has specifically denied the facts relating to the survey number, inheritance, 8 averments of the plaintiff regarding tracing his title, facts relating to the deed of sale relied upon by the plaintiff, transfer of title, factum of possession and has traced her title. The defendant has averred about the deed of sale under which the property came to be purchased dated 15.11.1995 and the expenses for construction undertaken by her under valid licence obtained by the defendant for construction of the bungalow. 10. The real dispute is upon the proposition of law that the denial of the kind mentioned in the original written statement totally denying the contents of the eight paragraphs of the plaint in a single paragraph of the written statement constitutes evasive denial and not specific denial. 11. The term evasive is something made to evade or left necessarily to evade. The meaning of the term “evasive” in the concise Oxford English Dictionary 10th Edition at page 493 is : “ tending to avoid commitment or self revelation – directed towards avoidance or escape. ” 9 Wharton's Law Lexicon, 14th Edition at page 382 explains evasion as : “the act of escaping by means of artifice; a trick or subterfuge. ” Evasive denial under Order 8, Rule 4 of the C.P.C. is explained in Advanced Law Lexicon by P. Ramanatha Iyer, 2005 Edition page 1667 as : “a denial conducted in a vague and ambiguous language which avoids direct and clear answer to the question. The term “Evasively” is explained as “ by evasion of subterfuge ; in a manner to avoid direct reply”. Pleading evasively is the converse of answering to the point or replying directly.” 12. In the case of Tek Bahadur Bhujil V. Debi Singh Bhujil reported in AIR 1966 SC 292, the averment in the plaint that his brothers belonging to the same joint family centering around their common mother was not specifically denied. The plea that the plaintiff was the uterine brother and hence could not have been the member of the family made in appeal was not accepted. 13. In the case of Haryana Wakf Board V. Shanti 10 Sarup, reported in 2008 (8) SCC 671, which was a dispute between adjacent owners of lands, the plaintiff's averments that the defendants had encroached upon the plaintiff's land was not specifically denied. It was observed that concurrent findings of two Lower Courts that the plaintiff had not proved encroachment was incorrect and hence, demarcation of the suit land by the Local Commissioner was allowed. Upon considering the concept of evasive denial, the denial in this case must be appreciated. 14. The averment in paragraph No.2 is not vague or ambiguous. There is no admission by way of implication. Merely because all the statements are together sought to be denied – in toto -, no admission of any fact also can be seen. Passing of a judgment on admission would be absurd. This is also not a case of the defendant resiling from her admissions. The denial is, of course, not inconsonance with the Order 8, Rule 3 of C.P.C. That defect is sought to be remedied. The parties would be heard on merits. Therefore, no injustice would be caused to the plaintiff. 15. The petitioner's Advocate has relied upon five judgments, none of which deal with a similar case : 11 (i) In B.K.Narayana Pillai V. Parameswaran Pillai reported in (2000) 1 Supreme Court Cases 712, three principles for not allowing the amendment in the written statement, are specifically laid down. They are (i) so as not to cause injustice to other side. (ii) An admission, which cannot be withdrawn and (iii) inconsistent allegations cannot be raised. In that case the defence of a lease was sought to be amended to include a licence under Section 60(b) of the Easements Act, which was held not to be inconsistent or repugnant. In this case, there is no admission, which is sought to be withdrawn. In fact, there is a total denial, which is sought to be explained. (ii) In the case of Nagindas Ramdas V. Dalpatram Ichharam alias Brijram reported in (1974) 1 SCC 242, it is held that admissions, if true and clear are the best proof of facts admitted. The judgment makes a distinction between admissions under Section 58 of the Evidence Act and the admissions made by the parties or their agents at or before the hearing of the case which are themselves foundation of the rights of the parties. There is no such admission shown in this case. 12 (iii) In the case of Union of India V. Surjit Singh Atwal reported in (1979) 1 SCC 520, the contract of construction between the parties and its execution were both admitted. The later conference between two parties and the agreement for payment of construction work already done were denied. There was no plea taken that such a contract was hit by Section 175 (3) of the Govt. of India Act 1935. Such a plea was not allowed to be taken later and hence, the dismissal of the suit upon such a plea not made in the written statement of the defendant was held to be bad. This is the case in which it was held that the defendant was not entitled to raise the plea of illegality of agreement having not so pleaded in the written statement and not having raised any issue with regard to it. In this case, there is no specific plea which was raised and only the general specific denials are sought to be explained. (iv) The case of Sambhaji Laxmanrao Pawar V. Abdul Wahed reported in 1995(1) Bom. C. R. 608 is the case where the allegations in the plaint were not specifically denied. Hence, they were taken to be admitted. That was the suit for specific performance of the contract, the execution of which was not denied. It is contended that a building contract had not come into existence as the terms of the contract were 13 vague and uncertain. The specific averment in the plaint that the defendants demanded additional amount over the agreed sale price which was agreed by the plaintiff upon further agreement that if the defendant did not execute the sale deed the plaintiff would be entitled to damages to the extent of the increase in price was not fully controverted. It was held that the defendant must deal specifically with each allegation of the fact in the plaint and that having not been done, it would be taken to be admitted. That is what the defendant has sought to meet by way of the amendment. (V) In the case of Lohia Proprietories V.Atma Ram Kumar reported in 1993 (4) SCC 6, service of notice of terminated tenancy of the defendant was specifically urged in the plaint. The written statement showed that the notice was not issued according to law. There was no specific or implied denial that the notice was served. This amounted to non-denial of the fact of the service of the notice and consequently, it was taken as admission of the fact of the service of the notice. Consequently, in paragraph Nos. 14, 15 of the judgment, it was observed that the defendant must specifically deal with each allegation of the fact of which he does not admit the truth and if the said allegations of the fact are not denied 14 specifically or by necessary implication, it will be taken to be admitted. Consequently, it is observed in the last para of the judgment that non-traverse of the allegations constitutes an implied admission. Hence, to constitute an admission, non- traversing of the fact must necessarily be shown. Denial in total of the averments of eight paragraphs of the plaint is not non-traversing these averments. 16. In this case, interest of justice demands that the specific denials made in toto, but generally with reference to paras 2 to 10 of the plaint are allowed to be denied separately and specifically as sought by the defendant in the amendment application. The parties must be allowed to lead evidence on merits of their respective claims. 17. There is no merit in the writ petition. Hence, it is dismissed. SMT. R. S. DALVI, J. SMA