statement of admission and denial

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Practice and Procedure Relating to Proof of Documents

by Karl Shroff*

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The matter is called out, you walk into court confidently thinking all your documents will be marked because you have them neatly arranged in a compilation…15–20 minutes later you wonder why the documents are marked for identification and half your documents are not admitted. That senior who appeared just before me got his documents admitted….what happened to me?

Well most of us have faced this at least in our junior days at the bar. Why did that happen?

The answer lies in the realm of sufficiency of proof of the document sought to be marked.

I’m going to discuss how to get over this as best as possible given the documents you have in hand in a given case.

First we need to understand that evidence consists of “documentary evidence” and “oral evidence”

This article restricts itself to proof of documentary evidence.

Documentary evidence under the Evidence Act, 1872 (the Act) is of various types:

Broadly and most often we deal with “private documents” [1] . Documents such as letters, agreements, emails, etc. exchanged between contesting parties to a litigation are private documents.

The next set of documents which one deals with are “public documents” [2] for example documents such as a birth certificate, marriage certificate, a bill of a public water utility or electric company or an FIR filed before the police station. In these cases the record of the authority or a certified copy [3] or an extract is issued by an officer of a public authority discharging functions delegated to him – these are public documents. A public document is one which is basically a reproduction of an entry contained in some kind of public register, book or record relating to relevant facts or a certified copy issued by the authority as for example a birth certificate providing details such as date of birth, place where the birth took place the name of the mother, etc. Generally speaking, courts do accept public documents more readily than private documents as there is a presumption that the risk of tampering with public documents is far less as it has come from a reliable source such is the public record or register duly maintained in an official capacity. The Courts also consider the entries in such records maintained by public authorities to be relevant facts [4] . Courts generally lean in favor of accepting or admitting the contents of public documents since these documents have as their genesis some reliable source and can be traced back to that reliable source for verification if necessary. However even a public document still doesn’t stand proved by the mere fact of its production. It must be proved in the normal manner of proof as discussed hereafter when an objection to it is taken.

Sometimes you also deal with what are known as ancient documents or documents which are more than 30 years old [5] . Section 90 of the Act provides a presumption with regard to these documents.

There is also a category of documents which we come across which could be public or private documents but they are not documents in original. Proof of such documents poses a further complication when it comes to proving the same. To prove such documents we need to lead what we all know as secondary evidence [6] .

We also come across cases where something is said by one person to another and that is not recorded in writing between the two persons. In that case only “oral evidence” would have to be given as opposed to “documentary evidence”.

For all these cases what is needed to be proved is the truth of the facts stated in the documents be it an original document or a carbon copy or xerox copy or a public document.

The question which really requires to be answered is how is that done and what is the correct mode and manner of doing so.

Under the Act, the court usually accepts a fact is proved when after considering the document and the evidence before it, it comes to the conclusion that what is stated in the document is believable based on what the document on the face of it states along with what a witness to the document states about the contents and the manner in which the document was prepared/authored. This is the heart of the matter and it is when the court believes not only in the existence but also truth of contents that the document would be exhibited by the court.

At the stage of exhibition of the documents the court looks at two basic aspects, one the existence of the document and secondly the proof of contents being sufficiently deposed to by a witness having requisite knowledge of the contents thereof. On being satisfied of both these criteria the document in question will be exhibited. At the stage of marking or exhibiting documents the truth of what is stated in the document is not considered and is left open to final evaluation at the trial after cross-examination is conducted and the entire testimony of the witness on the document is weighed. It is then that the court concludes the document speaks the truth or not and decides what weightage is to be given to it for arriving at a final decision in the matter.

Objections to exhibition of documents are of two basic types and are indicated in the admission and denial statement exchanged between parties once a compilation is tendered to the opposite party. There can be an objection/denial of the very existence of the document and secondly an objection/denial of the truth of contents of the documents. Depending on the objection taken the mode of proof is required to be tailored.

PROOF OF A DOCUMENT WHEN THE CONTENTS ARE NOT DISPUTED BUT THE OBJECTION IS TO THE FACT THAT IT IS NOT AN ORIGINAL

Where the document is not disputed in terms of its existence or contents but the objection taken is that the document in the compilation is a xerox copy and not the original (since it may be lost or not traceable), the mode of proof would be in the case of a private document to lead secondary evidence which is discussed later. However this is only necessary if the court so insists as once the existence and contents is accepted or not denied even a copy would be exhibited as there is no real objection and what the court has to consider is the truth of contents. Similarly in the case of a public document (if the court so insists) the mode of proving such a public document is to have as required either the actual public document produced by issuing a witness summons through court or alternately having a certified copy or extract of the document [7] produced as proof of the contents of the public document. Here in such a case a witness is asked by way of a witness summons to merely produce a document in position of the public authority. The procedure followed usually by the courts is that the original document is taken possession of from the public authority (who attends court at a time fixed), and exhibited after he/she confirms it forms part of the official records maintained by the authority. It is important that this fact i.e. that the document produced is shown to form part of the official record maintained by the authority which is producing it is clearly stated by the witness summoned for the purpose. The court after being satisfied of this i.e. that the documents are produced from the authentic records of the public authority would then exhibit the documents. This is how a public document can be proved in case there is no contest to the existence of the public document but the objection is about it not being an authenticated document.

PROOF OF A DOCUMENT WHEN THE CONTENTS AND EXISTENCE ARE BOTH DENIED

In case of a private or public document where there is a denial of the existence and contents then in that case it would be necessary to prove such document by way of the ordinary method of proof of documents and their contents. It matters not that the document is a public document. The Bombay High Court has in Om Prakash Berlia v . Unit Trust of India [8] held that even a public document requires proof in the ordinary course and it is not that a public document is proved by its mere production by a public authority where the contents are disputed. In that case it was held: (SCC Online paras 13, 14 and 26)

“ 13. It will have been noticed that the production of certified copies under the provisions of Section 63 is a means of leading secondary evidence. Secondary evidence can, obviously, be led only of what the document states not as to whether what the document states is true. Under Section 65(e), secondary evidence may be given when the original is a public document within the meaning of Section 74 and only a certified copy of the public document is admissible. Secondary evidence of a public document so led only proves what the document states, no more. In other words, he who seeks to prove a public document is relieved of the obligation to produce the original. He can produce instead a certified copy. All other requirements he must still comply with .

In this context this Court’s judgment in C.H. Shah v. S.S. Malpathak [9] must be noted. The Court was concerned with deciding whether the original of a public document has to be proved in the same manner as any other document. A consideration of the relevant provisions of the Evidence Act clearly showed the Court that the only difference which the Act made between public and private documents was in regard to the form of secondary evidence which is admissible viz. a certified copy, and in regard to the presumption of the genuineness of the certified copy; in all other respects no distinction was drawn by the Act between public and private documents.

* * *

In the result, I hold that the said copy and extract (Exhibits 17 and 18) do not establish, even prima facie, the truth or accuracy or correctness of the contents of their originals. They prove only what the contents of their originals are .”

(emphasis supplied)

In case of disputed documents the first step is producing the original or primary direct evidence [10] and then leading the evidence of the person who has made the original unless of course that person is no longer available. In such a case the first step is producing the original and annexing it with the compilation of documents and then leading the evidence of the person who has made the document or been party to its formation. In case the document is available in original with the party proposing to prove it as for example an agreement retained in original by him, there appears no difficulty. However, in case the document is lost then the only way is to lead secondary evidence of the same through a copy made in accordance with Sections 63 and 65 of the Act. However in the case for example of a letter which is written by Mr. A to Mr. B which is sought to be proved by Mr. A, first that letter in original will have to be produced. This can be done by Mr. A issuing a notice to produce to Mr. B because obviously having written the letter to Mr. B the letter would not remain with him. In response if Mr. B disputes that the letter was even received by him one would have to prove that the letter was duly received by Mr. B by giving evidence of proof of delivery by registered post AD or evidence of the fact that Mr. B had responded to the letter or had referred to that letter in some other later of correspondence or it was hand delivered. In such a case then appropriate secondary evidence would have to be led while annexing to the compilation instead of an original a copy which conforms with the requirements of Section 63 of the Act. In both the above cases what is achieved is only the first stage of obtaining the requisite document and making it a part of the compilation relied on. In both cases the only thing proved by the above process is the existence of the document.

However for exhibition of the document it is necessary to depose to the truth of contents of the document i.e. what is said in the agreement or what was written in the letter is true and correct.

In both the cases what would be necessary is to prove the contents of the document because what is important is not that something is really stated in the document but whether what is stated in the document is correct. That can only be proved by somebody who knows about the document itself or who was a party to making the document or had verified the document or approved it or signed it with knowledge of its contents. This is because evidence must be direct primary evidence under Sections 60 to 62 of the Act.

The next step after the production of the document in original or as a copy (secondary evidence) in the compilation of documents is to lead appropriate evidence of the truth of the contents of the document sought to be proved. That needs to be done in the aforesaid example by the evidence of a person (who was a party to or had been intricately involved with or drafted/gave instructions to make the agreement or letter) stating so in the witness box or in an affidavit of examination- in- chief about these facts. It is not enough to only depose that the letter or agreement is signed by the witness, he must also depose to some particulars of the letter or agreement showing he is personally aware about what is mentioned therein. As an example if Mr. A only deposes that he signed the letter but that it was written by somebody else and he had not verified its contents then the letter doesn’t stand proved because all that Mr A is able to do and say is that he signed such a letter. This only proves his signature and at best the existence of the same. What is crucial is the contents of the letter and that can only be proved by the person who authored the letter on the basis of knowing the facts stated in the letter. Therefore what is examined by the court and what must be shown if the document is sought to be proved sufficiently for exhibition is to give direct evidence under Section 60 of the Act by the person who is aware of the facts of the case. The person who gives evidence must not only give direct evidence but he must also have the necessary knowledge about what is stated in the document which he is trying to prove. This is because what is necessary is that evidence cannot be hearsay evidence. I will shortly deal with this. To prove the contents of a document what is needed is to prove by direct evidence of the person concerned with the transaction (for public and private documents) the actual facts stated in the document. A reading of the evidence must show that the witness has personal knowledge of what the contents of the letter or agreement talk of and can depose sufficiently thereon. In case the evidence shows the witness attempting to prove the document is not aware of the contents and another person is aware of it the document will not be exhibited till that other person has deposed on the contents of the document. It is only once this is done that the document can be stated to be proved sufficiently for exhibition. Care must be taken to see that someone who can vouchsafe for the contents must depose to the documents. The Supreme court in Narbada Devi Gupta v. Birendra Kumar Jaiswal [ 11] has held: (SCC p. 751)

“ 16…. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for t he truth of the facts in issue” …”

(emphasis supplied)

One of the best and most instructive cases on proof of documents is that of Madholal Sindhu v. Asian Assurance Co. Ltd . [12] It is therein held that it is not sufficient to merely prove that somebody signed a document and the witness could prove or identify the signature, what is required is to prove that the person who signed the document was aware of the document and its contents and the transaction. In that case it was held as follows: (SCC Online paras 4-6, 8 & 9)

“4. Mr. Somjee argued that under the provisions of the Evidence Act all facts except the contents of documents could be proved by oral evidence, that so far as the contents of documents are concerned, they could be proved either by primary or secondary evidence, that the primary evidence of the documents meant the documents themselves produced before the court, and that if the documents were alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as was in that person’s handwriting need be proved to be in his handwriting. He, therefore, urged that the said various documents which he sought to prove before the court need only be proved to be in the handwriting of the persons making the same and if he succeeded in doing so by calling the evidence of persons acquainted with the handwriting of the persons who signed or wrote out the said several documents, he was entitled to put them in and argued that the contents of the said documents were also proved by him.

This proposition sounded to me a novel one. I had in fact never heard any such argument before. Section 67, Evidence Act only permitted the proof of the signature or handwriting of the person signing or writing the document to be given and considered it to be sufficient in those cases where the issue between the parties was whether a document was signed or written wholly or in part by that person. It did not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof insofar as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature or handwriting of the said various documents could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas; but the matter could rest there and would carry the plaintiff no further.
It certainly could not prove that the contents of those various documents which were thus proved to have been signed or written by Deshpande, Paranjape or Jamnadas were correct, and unless the plaintiff succeeded in proving the correctness of the contents of those various documents, he would not advance any step towards proving his case. Mr. Taraporewalla for the bank and Jamnadas supported Mr. Somjee in his submission. He submitted that once the signatures were proved the letters as a whole were proved, though the Court might say that the contents thereof were not proved in the sense that they were true. He submitted that the Court could admit those documents in evidence with that reservation, a reservation which to my mind went to the root of the whole matter and deprived the documents of all value whatsoever even if they might be admitted by the Court in evidence.

* * *

Mr. Setalvad on the strength of this authority urged that the documents which were sought to be tendered by Mr. Somjee through this witness Balkrishna Bhagwan Deshmukh could not be admitted in evidence without calling the signatory or the writer thereof who could be the only persons competent to depose to the truth of contents of the said various documents. Mr. Somjee replied urging that the usual mode of proving documents was by calling the writer or by the testimony of the persons who were acquainted with the handwriting of the persons in question, and he was thus entitled to prove the various documents which he sought to tender in evidence through this witness Balkrishna Bhagwan Deshmukh who was acquainted with the signatures or handwriting of the persons who signed or wrote the said various documents.
As I have already observed it was futile for Mr. Somjee to merely prove the signatures or the handwriting of the persons who signed or wrote the various documents without calling the said persons who were the only persons who could depose to the correctness of the contents of those various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various documents, was not the only issue before me. It that had been the only issue, the proof of the signatures or the handwriting of Deshpande Paranjape or Jamnadas would have been enough. What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the contents of those various documents were correct. This certainly could not be proved by Balkrishna Bhagwan Deshmukh who had no personal knowledge whatever about the contents of those various documents. It would have served no purpose whatever to admit those documents in evidence with the reservation as suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in — ‘11 Bom HCR 242 [13] at p. 246 (A)’, and I accordingly declined to admit in evidence the said various documents in spite of Balkrishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or were in the handwriting of Deshpande, Paranjape or Jamnadas. (The rest of the judgment is not material to the report.)”

The principles in Madholal case [14] stand the test of time even today and this judgement has even been referred to in a later judgement of the Bombay High Court Sir Mohammed Yusuf v . D [15] where it is quoted with approval. The following passages are relevant:

“ 13. Mr. Peerbhoy contended that the entire document (Ext. 28) could not be admitted in evidence inasmuch as D had only proved the signature below the document. The Tribunal gave a ruling stating that in their opinion proof of the signature was not proof of the contents of the document, which bears the signature. They added that “it would be open to Mr. Peerbhoy to contend that despite the admission of the document on record what was proved was that the document bore the signature of Abreo and not that their contents were true”. In their report, the tribunal have stated that proof of the signature does not amount to proof of the contents of Ext. 28. Nor did it mean that even if Abreo had received that copy letter, he showed it to Abdul Rahman at any time. According to the Bar Council Tribunal, the evidentiary value of Ext. 28, even if it is held proved, was almost nil. As pointed out above, the mode of proving Ext. 28 that was initially undertaken by D was to identify the signature of Abreo as a person who was acquainted with Abreo’s handwriting (vide Section 47 of the Evidence Act). The ruling given by the tribunal may hold good so far as the question of the proof of the contents of Ext. 28 is concerned, (we will discuss this question presently at some length), if the only mode of proof adopted by D was to identify the signature of Abreo. It certainly does not apply to the second mode of proof which D sought to adopt, for the first time, in his further examination-in-chief before the Bar Council Tribunal by saying that Abreo put his signature below Ext. 28 in his presence, for this amounts to proof of the execution of the document. We are not, however, disposed to accept the improved version of D, when he tried to say, for the first time before the Tribunal, that he had seen Abreo putting his signature below Ext. 28. The mode of proof that D adopted in the first instance fell within the purview of Section 47 of the Evidence Act, that is to say, it amounted to his opinion about the signature of Abreo on the basis of his acquaintance with the latter’s hand-writing. The Bar Council Tribunal had probably in their mind the decision of Bhagwati, J. (as he then was) in Madholal Sindhu v. Asian Assurance Co. [16] The Advocate General has strongly relied upon this judgment and contended that proof of the signature below the document does not amount to proof of the contents of the document. In that case an attempt was made to prove through the sub-accountant in the head office of the Bank several documents consisting of letters and documents executed by Jamnadas in favour of the bank and also the resolutions of the executive committee of the bank and the letters addressed by the bank to Nissim by proving the handwriting in which all the documents purported to have been written. Bhagwati, J. characterised this attempt “as an attempt to prove the handwriting of these various documents without calling in evidence the persons who had written the same or who were acquainted with the contents thereof so that they might not be subjected to cross-examination at the hands of the counsel for the official Assignee. The witnesses who could have proved those documents and the contents thereof would have been Deshpande, the managing director of the bank. Paranjape the Secretary of the bank, Jamnadas and Nissim”. Bhagwati, J. referred to Section 67 of the Evidence Act and observed:

“Section 67 of the Evidence Act only permits the proof of the signature or handwriting of the person signing or writing the document to be given and considers it to be sufficient in those cases where the issue between the parties is whether a document was signed or written wholly or in part by that person. The section does not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof insofar as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature of handwriting of the said various documents could have established that those documents were signed or writen in the handwriting of Deshpande, Paranjape or Jamnadas; but the matter could rest there and would carry the plaintiff no further.”

From the facts as they appear from the judgment, it appears to us that the evidence given by Deshmukh in that case amounted to proving the handwriting of the persons concerned under Section 47 of the Evidence Act. We are inclined to the view that the proof offered by the evidence of Deshmukh was proof of the handwriting by a person acquainted with that handwriting and, therefore, amounted to opinion evidence under Section 47 of the Evidence Act. What is important to note is that Bhagwati, J. has gone to the length of holding that proof of the signature or the handwriting under Section 67 of the Evidence Act does not amount to proof of the contents of that document.

* * *

Section 67 does not prescribe any particular mode of proof. It lays down no new rule whatever as to the kind of proof that must be given. The section merely states with reference to the deeds what is the universal rule in all cases viz. that a person who makes an allegation must prove it. The question that arose before the Supreme Court in Mobarik Ali case [17] was, whether the authorship of the document can be proved without adducing evidence in proof of the signature of the person concerned. In that case, the prosecution relied upon a number of letters and these letters fell under two categories; (1) Letters from the appellant (accused) either to Jessawala or to the complainant and (2) Letters to the appellant from Jassawalla or the complainant. Most of the letters from the appellant relied upon bore what purported to be his signatures. A few of them were admitted by the appellant. There were also a few letters without signatures. The complainant and Jassawalla spoke to the signatures on the other letters. The objection raised on behalf of the appellant was that neither of them had actually seen the appellant writing any of the letters nor were they shown to have such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of these signatures. The trial Judges as well as the learned Judges of the High Court had found, that there were sufficient number of admitted or proved letters which might well enable Jassawalla and the complainant to identify the signature of the appellant, in the disputed letters. They also laid stress substantially on the contents of the various letters, in the context of the other letters and telegrams to which they purported to be replies and which formed the chain of correspondence as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. Their Lordships of the Supreme Court observed:

“We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact the evidence relating thereto may be direct, or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in Sections 45 and 47 of the Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship. In an appropriate case, the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the Courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That, however, is a matter which we cannot permit to be canvassed before us”.

We are unable to understand how the above observations in any way amount to modification of the view taken by Bhagwati, J. in Madholal case [18] nor do we appreciate how they help Mr. Gupte in the argument that he is advancing. Mr. Gupte in particular, relied upon the following sentences occurring in the above passage:

“The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Evidence Act. It may also be proved by internal evidence afforded by the contents of the document…”

The issue under consideration in that case was whether the internal evidence afforded by the contents of the document amounted to the proof of the authorship of the document and, therefore, their Lordships held that the evidence of the recipient of the document would be material to establish the authorship of the document. This was the real decision that was given by the Supreme Court in Mobarik Ali case [19] . Even the general observations viz. “It (proof) may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in Sections 45 and 47 of the Evidence Act” are not of much help to Mr. Gupte. As pointed out above, at the initial stage D tried to resort to the mode of proving spoken of in Section 47 of the Evidence Act but at a latter stage, shifted the ground and tried to give direct evidence of the execution of the document. It is true that proof of the signature or of the handwriting by one acquainted with the handwriting is a recognised mode of proof under Section 47 of the Evidence Act. Therefore, insofar as D says that he recognised the signature of Abreo, the letter’s signature can be taken to have been proved under Section 47 of the Act. But the proof of the signature on the basis of opinion evidence, however, is not proof of the handwriting of the document. Mr. Gupte pointed out that the body of the document as Ex. 28 is typewritten. Therefore, there is no question of proving the writing of that document. At the same time, it must not be forgotten that the figure and letters ‘1st’ are written in hand and in pencil. D has not attempted to identify the figure and letters. The whole document, therefore, cannot be said to have been even formally proved. Apart from this aspect of the matter, it is clear to us that the decision in Mobarik Ali case [20] does not affect the decision given by Bhagwati, J. viz., that the proof of the document does not amount to proof of the contents thereof. The only question that arose in Mobarik Ali case related to the formal proof of the document and, therefore, Their Lordships of the Supreme Court held that the letters and telegrams could be said to have been formally proved by reason of internal evidence provided by the documents and the positive evidence given by the recipient of those documents. Once the letters and telegrams were held proved, the further question about the proof of the contents did not arise in Mobarik Ali case [21] , because the author of the documents was accused himself and the statements contained therein would amount to his admissions. In our view, therefore, the decision of Bhagwati, J. is still good law.
The reason on which the decision of Bhagwati, J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well recognised rule that hearsay evidence cannot be admitted.

(emphasis supplied)

It is therefore necessary in the case of disputed documents to therefore prove the contents of the documents through the evidence of persons/witnesses who have authored the documents or are parties to it or are aware of the facts personally stated therein.

Another reason for following the practice of having a witness with sufficient personal knowledge deposing about the documents sought to be proved is that even if the documents are exhibited the task is not yet done. This is because the person deposing will also be subject to cross-examination and in case it is found during the cross-examination that the person giving evidence about the document knows nothing about how it was made, where the details provided in the document are obtained from, what are the back up or supporting documents etc. then in that case the weightage to be given to such document even though exhibited in the first instance would be severely diminished.

PROOF OF A DOCUMENTS THE ORIGINALS OF WHICH ARE LOST OR UNTRACEABLE OR IN POSSESSION OF AN ADVERSE PARTY

Here the first thing which needs to be established is that the document is lost and despite diligent search the same is not available. This will have to be proved and specifically averred in evidence. Secondary evidence cannot be allowed in absence of this proof of loss of the document. The Supreme Court in Benga Behera v . Braja Kishore Nanda [22] held that: (SCC pp. 737-38)

“ 29. Another vital aspect of the matter cannot also be ignored. Respondent 1 in his evidence accepted that he had obtained the registered will from the office of the Sub-Registrar upon presenting “the ticket” on 30-1-1982. After receipt of the will, he had shown it to Sarajumani Dasi. He did not say how the will was lost, particularly when he had not only shown the original will to the testatrix but also had consulted a lawyer in relation thereto. No information was lodged about the missing of the document before any authority. Even the approximate point of time the will was lost, was not stated. In his cross-examination, he stated, “I cannot say where and how the original will was lost.”

Loss of the original will was, thus, not satisfactorily proved.
A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under:

“65. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;”

Loss of the original, therefore, was required to be proved.

In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original will beyond all reasonable doubt. His testimony in that behalf remained uncorroborated.”

In case a document is in possession of the opposing party the proper practice to be followed will be to give a notice to produce the document to such party in possession of the document and only after the party refuses to provide/produce the document can secondary evidence be resorted to [23] .

Thereafter the mode of proof will be the same as for other disputed documents. Additionally appropriate evidence about how the copy which is secondary evidence was obtained and made from the original will also have to be led. In other words evidence of the manner in which the copy is made will have to be led in accordance with the manner set out in Section 63 of the Act. As an example if a letter sought to be proved is lost evidence would have to be given first of the efforts made to locate the same unsuccessfully and then of the manner in which the copy now relied upon in the compilation was obtained or made and the process by which it was made e.g. photocopy. The necessary averment of the witness apart from the factum of his failure despite diligent search to locate the original will have to be to the effect that at the relevant time the original document was available and a copy was made from the original and the copy in the compilation was compared by him with the original and found to be an accurate reproduction of the original document.

The next stage is for the witness deposing to be able to withstand cross-examination by answering relevant questions relating to document. Take the following example (in a dispute on electricity consumption) and assume there is an electric bill, a disputed document exhibited since the public authority has produced it from its record maintained by it in the normal course of business. Since there is a dispute about consumption of units even though the bill itself in original is produced all that is proved by production is that such a bill was made by the public authority and such and such number of units were consumed as stated therein. However what needs to be seen is whether there is a correct recording of the consumption of units in the public document that is the bill. Mere production of the document is not enough what is needed in such a case further is for some person to give evidence of the public document to the extent that the document is substantiated with supporting documents such as meter reading cards and supporting data maintained in the office of the authority. In such a case if the witnesses states that the bill was prepared by him on the basis of data cards maintained showing the consumption from month to month and he had verified the consumption from month to month then in that case if the data cards showing the consumption are also produced the contents of the bill will stand proved, of course subject to cross-examination not dislodging the correctness of the consumption shown in the document. Therefore what is needed apart from successful exhibition of the document is for a witness to stand the test of stringent cross-examination. It is not merely somebody stepping into the box and saying the contents are true and correct that person must withstand cross-examination. It is only after that person has withstood the test of cross-examination that the document will be deemed to be accepted by the court sufficient to sign a judgement in favour of the party claiming under the document. Mere exhibition of a document does not dispense with the proof of the truth of its contents. The Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal [24] held: (SCC p. 751)

“ 16. Reliance is heavily placed on behalf of the appellant on Ramji Dayawala & Sons (P) Ltd. [25] The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court.”

DOCUMENTS 30 YEARS’ OLD

There are also documents which are of such old vintage that it is very difficult and sometimes impossible to produce the maker of the document and in this case the provisions of Section 90 of the Act come to the rescue when the document is more than 30 years’ old. However, this rule considering the fact that most cases coming up for trial are 30 years after the transactions cannot be the sole basis for admitting documents and in such cases the court would look at the surrounding circumstances before exhibiting the document. This means the court would look as if there, is for example, any correspondence contemporaneously that supports what is stated in the document sought to be proved. If the document is a letter, has there been any response to it disputing the contents of the letter, the court may also take into consideration what is stated about the letter in the plaint or in a written statement. Exhibition of such documents which do not have persons who can depose to them is extremely difficult and even if they are exhibited (rarely) the evidentiary value is limited unless its contents are admitted in some other parallel documents. The section does not dispense with proof of the contents. The judgement of the Supreme Court in Gangamma v. Shivalingaiah [26] elucidates the position: (SCC p. 360)

“ 6. We agree with the learned counsel. The purported substantial question of law was formulated by the High Court on a wrong premise. Section 90 of the Evidence Act has been misconstrued and misinterpreted by the High Court. Section 90 of the Evidence Act reads as under:

“90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

A bare perusal of the aforementioned provision would clearly go to show that in terms thereof merely a presumption is raised to the effect that signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested.
Section 90 of the Evidence Act nowhere provides that in terms thereof the authenticity of the recitals contained in any document is presumed to be correct. The High Court, therefore, committed a manifest error of law in interpreting the provision of Section 90 of the Evidence Act and, thus, fell into an error in formulating the substantial question of law. As the purported substantial question of law was formulated on a wrong reading of Section 90 of the Evidence Act, the impugned judgment cannot be sustained. We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”

It is also to be noted that the presumption of Section 90 of the Act does not apply to copies of documents as held in Tilak Chand Kureel v . Bhim Raj [27] . The relevant passage is as under:

“4. On behalf of the appellant it was contended that Exts. 2, 18 and 19 were not admissible in evidence and the High Court was wrong in relying upon these documents. It was said that the presumption under Section 90 of the Evidence Act was not applicable as copies were produced and not the original documents. In our opinion this argument is well-founded. In Basant v. Brijraj [28] it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst of Munshi Nath Prasada . [29] In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exts. 2, 18 and 19.”

PERSONAL KNOWLEDGE

The last issue which needs to be addressed to prove documents contents through a witness pertains to the witness having direct knowledge and giving direct evidence rather than a witness relying upon something which he claims he heard. The rule of inadmissibility of hearsay evidence kicks in. Evidence needs to be evidence of the person who is involved in and familiar with the transaction. In this behalf a recent judgement considering the law on the issue was delivered by the Bombay High Court (G. S. Patel, J.) in Harish Loyalka v. Dileep Nevatia [30] . It is inter alia held therein that the provisions of Order 18 Rule 4 of the Code of Civil Procedure, 1908 (“CPC”) require that the “examination-in-chief” shall be on affidavit. This means that the affidavit in lieu of examination-in-chief can contain, and contain only, such material as is properly admissible in examination-in-chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contains arguments and submissions is neither an affidavit within the meaning of Order 19 Rule 3 CPC, nor an affidavit in lieu of examination-in-chief within the meaning of CPC Order 18 Rule 4.

In that judgment it was also held:

“13. As Mr. Joshi points out, under Section 5 of the Evidence Act, evidence may be given in a suit of every fact in issue or of a relevant fact, and of no other. That section is specific and unambiguous. Material that is ex facie entirely irrelevant, hearsay, and certainly material that is in the nature of submissions and arguments must be excluded.”

To sum up the aforesaid are some of the important principles and aspects of law to bear in mind when preparing for a hearing for exhibiting and proving documents.

* Advocate, High Court, Bombay. Assisted by Sheetal Parkash, Arjun Prabhu and Mayur Agarwal

[1] Sections 74 & 75, Evidence Act

[2] Defined in Section 74 of Evidence Act

[3] Sections 76 & 77, Evidence Act

[4] Section 35, Evidence Act

[5] Section 90, Evidence Act

[6] Section 63, Evidence Act

[7] Under Section 77 of the Evidence Act

[8] 1982 SCC OnLine Bom 148

[9] 1971 SCC OnLine Bom 104

[10] Sections 60 to 62 Evidence Act

[11] (2003) 8 SCC 745

[12] 1945 SCC OnLine Bom 44

[13] Reg v. Jora Hasji

[14] Madholal Sindhu v. Asian Assurance Co. Ltd ., 1945 SCC OnLine Bom 44

[15] 1961 SCC OnLine Bom 5

[16] 1945 SCC OnLine Bom 44

[17] Mobarik Ali Ahmed v. State of Bombay, 1958 SCR 328

[18] 1945 SCC OnLine Bom 44

[19] 1958 SCR 328

[22] (2007) 9 SCC 728

[23] Sections 65 and 66, Evidence Act

[24] (2003) 8 SCC 745

[25] Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80

[26] ( 2005) 9 SCC 359

[27] (1969) 3 SCC 367

[28] 1935 SCC OnLine PC 21

[29] 1956 SCR I at p. 9

[30] 2014 SCC OnLine Bom 1640

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Sir.,Very much useful article you have not given comment on when the plaintiff submits all available photos to the court and the plaintiff does not have any evidence to submit during evidence stage what the plaintiff has to do, do plaintiff can ask for the photos submitted in the court for better judgement ? kindly guide me. Thank You With Regards mahendramani.

Very useful

Madam, you article on proof of documents is very informative and useful for legal professionals. However, i would like to suggest some more points on this article to be added i.e. procedure of proof of unstamped documents and unregistered documents which are required to be registered under the registration act. For proof of unstamped documents following judgments are relevant:- Javer Cahnad vs. Pukhraj Surana- AIR 1961 SC 1655, AIR 1969 SC 1238 and Geeta Marine Services Pvt. Ltd. vs. State of Maharstra – 2009 Cr. L.J 910. For unregistered documents following judgments are relevant:- (2015) 16 SCC 787 – Yellapu Uma Maheswari vs. Buddha Jagadheeswararao , (2015) 16 SCC 787. Hope the above suggestions will strengthen your article. Thanking you.

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Admission & Denial Of Documents In Suits

Aaditya vijaykumar & akshita katoch.

7 Dec 2020 10:30 AM GMT

Admission & Denial Of Documents In Suits

Prior to enacting the Commercial Division and Commercial Appellate Division of High Courts Act, 2015 ("Commercial Courts Act"), documents filed with the plaint and the written statement, especially in respect of the existence of the documents, were denied by the parties with impunity. With the introduction of the Commercial Courts Act an elaborate process was formulated in order for a party to admit and deny documents. This, along with other measures/ mechanisms such as discovery, inspection, production and filing of evidence by way of affidavits have been provided to ensure that both parties have equal access to the relevant documents and information available to the opposite party, were seen/ hailed to be revolutionary measures to expedite the adjudication of commercial matters.

However, parties in litigation continue to deny documents (along with challenging the authenticity and existence of a document) with the same sense of impunity without ascribing a single reason for such denial of documents. This tactic of cursory denial of documents effectively still makes the parties to undergo the elaborate process of deposition not only to prove the existence of the document but also to prove the contents of such documents.

The present article primarily focuses on the issue of cursory denial of documents and the manner in which courts ought to tackle this fundamental problem.

Denial of documents by litigants: Indian Courts

The Code of Civil Procedure, 1908 (" CPC ") introduced the concept of admission and denial of documents, which required the parties to admit or deny documents filed in a proceeding. [1] The thought behind this provision was that the scope of the trial would be narrow in case a party to a proceeding admits the contents of a document or its existence. It was also thought that the adjudication of the disputes by courts would be restricted to or fettered to documents which had been denied.

However, during the process of admission and denial, litigants cursorily denied documents on the ground that the document was fabricated, on (non) receipt of a document, on correctness of the contents of the documents (which has to be proved in evidence) etc. At times, the reason for denying a particular document is not ascribed and not known by the opposing party until final arguments. All of this was and continues to be done in a bid to prolong the litigation.

With the introduction of the Commercial Courts Act, the parties to the dispute were required to file a Statement of Admission/Denial of Documents alongside their respective pleadings. [2] Order XI, Rule 4, Sub-Rule 3 of the CPC now mandates that each party shall present reasons for denying any particular document under the grounds mentioned in Sub- Rule 2, including (a) correctness of contents of a document; (b) existence of a document; (c) execution of a document; (d) issuance or receipt of a document; and (e) custody of a document. In complete disregard of this provision as well, parties continue to deny most documents filed by the other party, without any substantiation or ascribing any reason whatsoever. Parties to the litigation make bare denials, even for documents which are either public documents or are publicly verifiable such as documents issued by governmental authorities. Additionally, denials of documents are made on account of documents being photocopies, being incomplete, blurred but otherwise legible and other such grounds.

When a document is challenged on the ground of authenticity, the party challenging such a document does not ascribe a reason as to what is fundamentally wrong with the document for its authenticity to be challenged. Surely, this defeats the very purpose of legislation and/or admission denial.

Obviously, denial of documents, whether in relation to existence of documents or otherwise, delays the trial since each document would have to be necessarily proved by summoning the author of the document or the record keeper of the document.

The High Court of Delhi also deprecated this practice by litigants and held that documents such as e-mails, correspondences, legal notices, replies, internet printouts, etc. (in essence such documents which can not be disputed on the basis of authenticity, genuineness and/or existence) cannot be permitted to be denied, at the stage of admission and denial of documents. [3]

International Practice in respect of challenging authenticity of documents:

Unlike the prevailing practice in India, under the common law regime, any document that is disclosed or filed by a party is taken to be admitted as authentic by the opposite party, unless the latter serves a notice to prove the documents within a specified time limit.

Illustratively, as per English Law, a notice to prove a document must be served either by the date for service of witness statements or within 7 days of disclosure of the documents to be challenged, whichever is later. [4] Furthermore, if the challenge to a document is with respect to the execution of the document or something that requires a witness to be called for proving the document, then fully particularized reasons for challenging the authenticity of the document have to be unambiguously set out in the notice itself. [5] The Courts consequently adjudicate upon this notice and if the notice does not disclose a ground for challenge of authenticity, the respective courts reject such a challenge.

Similarly, the law surrounding International Commercial Arbitration also does not provide a party to deny all the documents produced by the other side and only allows to raise a challenge against the authenticity or genuineness of the documents. Even though, different international Arbitral Tribunals handle the issue of challenge of the authenticity or the content in dispute in different ways; the underlying principle is that after the parties file their respective pleadings complete with the documents they wish to rely on during the course of arbitration, the opposite party would have the right to dispute the authenticity of these documents by applying to the Arbitral Tribunal. If the Arbitral Tribunal feels that the document ought to be formally proved, the Tribunal could order production of an original of the document for inspection by it in the presence or absence of the party challenging the document. [6]

Grounds on which authenticity of a document is challenged internationally :

Typically, authenticity of a document can be illustratively be based on (i) unusual format of a document; (ii) no "paper trail"; (iii) absence of witnesses having knowledge of the existence of a document; (iv) anachronisms: information in the document was not available at the time when it was allegedly created; (v) lack of a reasonable economic background; (vi) discrepancy from an established pattern; (vii) any forensic traces of forgery. [7] Naturally, each of these grounds has to be set out in the notice or application to challenge the authenticity of a document. On the basis of these grounds coupled with a strong prima facie case of fabrication or forgery of the document, the Court or Tribunal could order an inspection or production of the original document with a direction for such a document to be proved formally, if the need arises.

Similarly, if an electronic record is to be challenged, it ought to be premised on the parameters whether (i) the author who figures as such in the context of the information displayed in the document cannot be the author of such document; (ii) that this author did not produce the Electronic Document contemporaneously; and (iii) that the Electronic Document was subsequently altered by anybody.

Grounds on which authenticity of a document is challenged in India :

Unfortunately, the grounds for challenging authenticity of a document is known to few and far between. Documents are challenged on the ground of authenticity on the basis of a whim rather than having a cogent basis for such a challenge.

Significant advantage in adopting the internationally accepted methods :

The internationally approved and accepted methods naturally have significant advantages. Firstly, judicial time is not wasted in disputing the genuineness, authenticity or existence of documents, especially those documents which are ex facie genuine. Secondly, the dispute if raised with respect to any specific set of documents is dealt with care by the judge or the tribunal who would order the inspection of originals on being provided sufficient reasoning for the challenge. Thirdly, the conduct of the parties and the fact that a party is willing to fabricate documents could well change the course of the proceedings itself. Fourthly, the parties are not burdened with the unnecessary requirement of filing the originals of documents or summoning a witness to prove a document, which is otherwise genuine.

How should the courts tackle the issue of challenge to authenticity of documents :

In the present justice dispensation system, a litigant relying on fabricated documents ought to not only be subject to heavy costs [9] but the matter should be remanded to the concerned Magistrate to try the litigant for perjury. [10] It has been seen that courts have either been reluctant to impose heavy costs or proceed with perjury. Some courts have also been particularly lenient where costs have been imposed. Resultantly, courts have reduced the costs imposed on parties who should otherwise be visited with strict consequences. This should surely not be the way forward. A strong signal needs to be sent out that fabrication of documents is at the litigants cost and peril.

The utopian way forward:

The utopian way forward would naturally be to dispense with the system of admission and denial of documents altogether. The present system of admission and denial of documents serves no purpose whatsoever. It would rather be fruitful to take a position that all documents are admitted or at least deemed to be admitted in evidence (subject to the contents being proved in evidence) unless a challenge to a document has been specifically brought forward. This method would significantly reduce the burden on courts and the litigant to prove documents in evidence.

Views are personal.

[1] Order XIII Rule 4 of the CPC.

[2] Order XI, Rule 4 of CPC.

[3] Burger King Corporation v. Techchand Shewakramani & Ors., CS(COMM) 919/ 2016 and CC(COMM) 122/2017.

[4] CPR 32.19, Civil Procedural Rules.

[5] Commercial Court Guide, Courts of England and Wales.

[6] See Commentary on IBA Rules of Evidence (2010 edition), p. 9 ( www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/Default.aspx visited: 26 May 2011)

[7] https://www.gabriel-arbitration.ch/en/publications-and-speaking/dealing-with-challenged-documents

[8] ICC Commission Report, Managing E-Document Production available at https://www.iccwbo.be/wp-content/uploads/2012/03/20120516-Managing-e-document-Report.pdf.

[9] Section 35, 35A and 35B of the CPC.

[10] Section 340 of the Code of Criminal Procedure read with Section 190 of the Indian Penal Code.

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News updates, know the law, book review, written statement will not be taken on record if not accompanied by affidavit of admission/denial: delhi hc [read judgment].

Written Statement Will Not Be Taken On Record If Not Accompanied By Affidavit Of Admission/Denial: Delhi HC [Read Judgment]

The Delhi High Court on May 15, 2019, in the case of Unilin Beheer B.V. v. Balaji Action Buildwell has held that it is mandatory to file an affidavit of admission or denial with a written statement. In case of failure, the Court will not take the statement on record and the contested documents filed by the plaintiff would be admitted by the Court.

A single judge Bench of Justice R.S Endlaw was hearing a suit wherein the main matter involved claims of patent infringement. After the plaintiff brought the suit in January 2018, the defendant filed a counterclaim in February the same year.

Subsequently, the plaintiff filed a written statement in April 2018 and refiled it in May 2018. However, the plaintiff failed to accompany the written statement with an affidavit of admission/denial. It was only when a third written statement was filed in October 2018, that the plaintiff finally filed this affidavit.

When the case was taken up by the Court in January this year, the defendant argued before the Court that the plaintiff’s written statement cannot be taken on record since it had been filed without the affidavit of admission/denial. It was also contended that the period for filing the statement had expired.

The defendant relied on Rules 3 and 4 of Chapter VII of the Delhi High Court (Original Sides) Rules, 2018 .

Rule 3 states, “Alongwith the written statement, defendant shall also file an affidavit of admission/denial of documents filed by the plaintiff, without which the written statement shall not be taken on record.”

Whereas, Rule 4 states, “If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days, it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter. For such extension of time, the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid/deposited. In case the defendant fails to file the affidavit of admission/denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed to be admitted. In case, no written statement is filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement.”

Taking into consideration both these Rules, the Court observed that there is inconsistency/contradiction, in Rule 3 on the one hand, providing that written statement without affidavit of admission/denial shall not be taken on record and Rule 4 on the other hand, providing that the effect of nonfiling of affidavit of admission/denial shall be of the documents being deemed to be admitted.

In this regard, the Court held that if the affidavit of admission/denial does not accompany a written statement, it is equated to the non-filing of the written statement. Any other interpretation would render Rule 3 redundant.

“On the contrary the effect of holding that in such a situation, the written statement shall be deemed to have been not filed and the documents filed by the plaintiff deemed to be admitted, would allow full play to both Rules, without making any part thereof otiose. On further consideration, no inconsistency/contradiction is found in the two Rules. This interpretation is also in consonance with the legislative intent,” the court said.

Such an interpretation is also in line with the reason for introducing the 2018 Original Side Rules, the Court added, “With the experience of over fifty years of working of the 1967 Rules, attempt was made in the 2018 Rules to do away with the bottlenecks in the proceedings in the suits on the Original Side of this Court. One of such bottlenecks was the stage of admission/denial of documents, at which the suits remained pending, in large number of cases, for years and thereafter also not serving any purpose of expediting trial, with vague denials being made, putting the opposite party to proof of documents at the cost of consequent delays.”

Accordingly, the court held that “… in the event of the written statement being filed without affidavit of admission / denial of documents, not only shall the written statement be not taken on record but the documents filed by the plaintiff shall also be deemed to be admitted and on the basis of which admission the Court shall be entitled to proceed under Order VIII Rule 10 of the CPC .”

In the present case, however, the plaintiff corrected the error and filed an affidavit of admission/denial along with the written statement in October 2018. The Court found that this was filed within the time extension permissible under Rule 4 of the 2018 Rules. Therefore, it allowed the written statement to be taken on record subject to payment of costs of Rs.3 lacs to the counsel for the defendant.

[ Read Judgment ]

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How to Draft, File, and Serve an Answer to an Unverified Complaint

This How-To Guide addresses drafting, filing, and serving an answer to an unverified complaint in state court.

Carefully research and adapt the following material to the facts and circumstances of your case or matter and verify the currency of the legal authorities. Counsel should check the appropriate county or federal websites to verify the most recent local rules, standing orders, and other relevant information.

For further discussion on answers generally, see California Civil Procedure Before Trial, chapter 25 .

Step 1: Understand the Purpose of an Answer

An answer is a pleading filed in a civil action by a defendant or cross-defendant to reply to the allegations of a complaint or cross-complaint. It is governed by Code of Civil Procedure sections 420 , 430.30 , and 431.30 .

Ask if the client has any insurance coverage that may apply to the allegations set forth in the complaint or cross-complaint; if so, then the client must provide timely notice to ensure coverage.

An answer may fulfill various purposes:

To deny material allegations in the complaint ( Code Civ. Proc., § 431.30, subd. (b) );

To state new matters, particularly defenses, that may prevent a plaintiff from obtaining a judgment ( Code Civ. Proc., §§ 420 , 431.30 subd. (b) , 590 );

To make a general appearance in the action ( Code Civ. Proc., § 1014 );

To prevent a plaintiff from taking judgment by default ( Code Civ. Proc., § 585 );

To state the same formal objections to the complaint and its allegations that may be stated by demurrer when the reasons for objecting do not appear on the face of the complaint ( Code Civ. Proc., §§ 430.10 , 430.30 ); or

To require a plaintiff to prove all material allegations of fact denied in the answer ( Code Civ. Proc., § 590 ).

At case management conferences, judges may reference how a case is or is not “at issue.” When an answer is filed, a case is “at issue,” with each side having presented each of the legal claims and defenses it will raise during the litigation.

Step 2: Consider Alternative Strategies

Before drafting an answer, consider strategies that require filing papers along with an answer or instead of an answer.

Also consider whether the client is interested in settling the case or utilizing alternative dispute resolution. While it may be not feasible to resolve the case before any deadline for responding to a complaint or cross-complaint, it may be helpful to contact opposing counsel and gauge any interest in an early resolution.

Papers that can be filed in response to a complaint include the following:

Demurrer (see California Civil Procedure Before Trial, chapter 23 );

Motion to strike (see California Civil Procedure Before Trial, chapter 24 );

Motion to quash summons (see California Civil Procedure Before Trial, chapter 19 );

Cross-complaint (see California Civil Procedure Before Trial, chapter 26 );

Petition to remove action to federal court (see California Civil Procedure Before Trial, chapter 22 );

Motion for change of venue (see California Civil Procedure Before Trial, chapter 8 );

Motion to dismiss for inconvenient forum (see California Civil Procedure Before Trial, chapter 8 );

Motion to dismiss for failure to serve within three years (see California Civil Procedure Before Trial, chapter 39 );

Motion to change jurisdictional classification to limited or unlimited civil case (see California Civil Procedure Before Trial, chapter 6 );

Petition to compel arbitration (see California Civil Procedure Before Trial, chapter 45 ); and

Anti-SLAPP motion (see California Civil Procedure Before Trial, chapter 24A ).

If another strategy will be used, such as an anti-SLAPP motion, consider what needs to be included in the answer to bolster the other strategy. For example, if an answer is filed before the anti-SLAPP motion, then the answer should contain any affirmative defenses that might be the basis of the anti-SLAPP motion; failure to plead a necessary element or defense may result in loss of the motion.

Step 3: Identify the Filing Deadline

Normally, a defendant must file an answer to a complaint within 30 days after service of summons, unless the defendant (1) obtains an extension of time to answer; or (2) files an alternative responsive pleading or motion. ( Code Civ. Proc., § 412.20 ( summons in civil action must direct that defendant file written pleading in response within 30 days ).)

When service is considered complete depends on the method of service used:

If personally served, service is complete on the date the papers are delivered ( Code Civ. Proc., § 415.10 );

If served via substituted service ( Code Civ. Proc., § 415.20 ), service is complete on the 10th day after mailing;

If served within California by first-class mail or airmail, postage prepaid, with an acknowledgement of receipt of summons, service is complete on the date a written acknowledgment is executed or, if no acknowledgment is executed, then within 20 days from the date of such mailing ( Code Civ. Proc., § 415.30 );

If served outside of California by first-class mail, postage prepaid, requiring a return receipt, service is complete on the 10th day after such mailing ( Code Civ. Proc., § 415.40 ); and

If served by publication ( Code Civ. Proc., § 415.50 ), service is complete on the 28th day after the first day of publication ( Gov. Code, § 6064 ).

If a summons is served by mail pursuant to Code of Civil Procedure sections 415.10 through 415.95 , then the provisions of Code of Civil Procedure section 1013 that extend the response time shall not extend any deadline. ( Code Civ. Proc., § 413.20 .)

The general rules may be superseded in particular circumstances by statute or case law. For example, specific statutes provide other times for the filing of answers in special proceedings:

Code of Civil Procedure section 1167 ( 5-day answering period in unlawful detainer actions );

Code of Civil Procedure section 430.90 ( addressing answering period in cases of removal and remand );

Code of Civil Procedure section 1281.7 ( addressing answering period in cases in which defendant elects to file a petition to compel arbitration ); and

California Rules of Court, rule 3.1320(g) ( addressing answering period when a demurrer has been overruled ).

The same basic rules apply to the service of answers to amended complaints ( Code Civ. Proc., §§ 471.5 , 586 ) and answers to cross-complaints ( Code Civ. Proc., § 432.10 ), which also provide for a 30-day period to respond following service. When an amended complaint is served by mail, Code of Civil Procedure section 1013, subdivision (a) , extends the time within which to answer. ( Baker v. Anderson (1981) 119 Cal.App.3d 1000, 1002 .) If service of an amended complaint precedes its filing, then the effective date of service is the date of filing. ( Ibid . )

If a defendant fails to file a timely or sufficient answer, then the plaintiff may seek a default judgment.

Besides calendaring the response date to a complaint or cross-complaint, plaintiff’s counsel should also calendar and monitor the deadline for filing a request for entry of default. On default, see California Civil Procedure Before Trial, chapter 38 .

The defendant may apply for a court order to file an answer after expiration of time for filing a response stated in the summons. ( Code Civ. Proc., § 473 .) The court has power to grant a plaintiff’s motion to strike a tardy answer, but usually will not do so without a showing of significant prejudice to the plaintiff resulting from the defendant’s late filing.

Step 4: Determine Whether an Extension is Necessary

The parties may extend the time to respond to a complaint by agreement, formal written stipulation, or court order.

Many courts have adopted local fast-track rules that limit the length or number of extensions available by any means.

The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint. ( Cal. Rules of Court, rule 3.110(d) .) This does not apply to unlawful detainer, family law proceedings, or proceedings with different service requirements prescribed by law. ( Cal. Rules of Court, rule 3.110(a) .)

A party may apply for an extension of time to answer a complaint by means of a written ex parte application. See California Civil Procedure Before Trial, chapter 13 .

The court, on its own motion or on the application of a party, may extend or otherwise modify the time provided in California Rules of Court, rule 3.110(b)–(d) ( service of complaint, cross-complaint, or stipulation for extension of time for response ). ( Cal. Rules of Court, rule 3.110(e) .)

To be effective, an answer should deny every material allegation in the complaint, or allege facts that controvert all material allegations. ( Code Civ. Proc.,§ 431.20, subd. (a) .) If the defendant fails to deny a material allegation, then it is considered admitted, and the plaintiff does not have to prove the admitted matter at trial. ( Ibid . )

In practice, it is usually unwise to decide whether a given allegation is “material” or not. The better approach is to treat all allegations as material and to deny every allegation the defendant does not intend to admit.

Denials can be general or specific; further, they can be based on information and belief or lack of information or belief.

A. General Denial

A general denial is a brief statement that denies the truth of all allegations in a complaint.

Defendant denies each and every allegation in plaintiff’s complaint.

If the complaint is not verified, then the broad rule is that a general denial is permitted. ( Code Civ. Proc., § 431.30, subd. (d) .) A general denial is sufficient to put in issue all the material allegations of an unverified complaint. ( Ibid . ) A verified complaint is one that includes a statement in the form of a declaration under penalty of perjury or affidavit that the complaint is true. ( Code Civ. Proc., § 446 .)

Defense counsel commonly use a general denial in responding to an unverified complaint. It is cost-effective because it denies every issue raised in the complaint and does not require addressing issues on a line-by-line or even paragraph-by-paragraph basis. Also, it allows defendants to avoid tying themselves to specific admissions or denials, particularly before discovery has taken place.

When the amount in dispute under a complaint is $1,000 or less, instead of filing an answer or demurrer, the defendant can file a general written denial and a brief statement of any new matter constituting a defense; the form need not be verified. If the defendant chooses to file a general written denial under these circumstances, then the defendant shall use the Judicial Council form for a written denial; the form need not be verified. ( Code Civ. Proc., § 431.40 ; General Denial ( Judicial Council Form PLD-050 ).)

If a defendant wants to file a general denial, then the Judicial Council form must be used if the amount asked for in the complaint or the value of the property at issue is $1,000 or less. ( Code Civ. Proc., § 431.40 ; General Denial ( Judicial Council Form PLD-050 ) .)

The Judicial Council form can be used for a general denial if either (1) the complaint is not verified; or (2) the complaint is verified and the case is a limited civil case (the amount in controversy is $25,000 or less), but not if the complaint involves a claim for more than $1,000 that has been assigned to a third party for collection. See General Denial (Judicial Council Form PLD-050) .

B. Specific Denials

While defense counsel commonly use a general denial in responding to an unverified complaint, specific denials can also be used. A specific denial is any form of denial that is sufficient to contest particular allegations in a complaint. A specific denial should respond to each and every paragraph of the complaint.

If a complaint is unverified, then specific denials are not required and a general denial can be used. However, most of the time there is some matter within a complaint that is unquestionably true, which a defendant may find a tactical advantage in admitting. Some defense attorneys feel that specific denials carry greater psychological weight when later heard or seen by the plaintiff or the trier of fact. Nevertheless, the general denial is the most commonly used form of denial, unless the complaint is verified. When using specific denials, be sure that each and every paragraph of the complaint is addressed so that an allegation is not considered admitted.

Specific denials may take several forms.

Denial of Specific Lines or Paragraphs . Allegations in a complaint may be put in issue by a denial that refers to specific lines or paragraphs ( Code Civ. Proc., § 431.30 subds. (d) & (f) ).

1. Defendant denies each and every allegation of paragraphs 3, 4, 7, 8, and 9 of the complaint.

Paragraph-by-Paragraph Denial . Another form of specific denial is to answer the complaint paragraph-by-paragraph, denying each paragraph the defendant wishes to controvert.

3. Defendant denies each and every allegation of paragraph 3 of the complaint.

4. Defendant denies each and every allegation of paragraph 4 of the complaint.

Specifically Admitting Particular Allegations and Denying Others . If the defendant wishes for tactical reasons to ensure that a particular allegation in the complaint will be taken as true, while denying other allegations in the same paragraph, the defendant may specifically admit the allegation and deny the other matter.

2. Defendant admits that he is a resident of Los Angeles, California, but denies each and every other allegation of paragraph 2 of the complaint.

An effective specific denial is one that is clear in its scope and intent. In an admission of a particular portion of an allegation and a denial of the remainder, many defense attorneys avoid repetition of facts and instead plead with reference to paragraph or line numbers, carefully limiting their admissions, and stating for each paragraph whether it, or parts of it, are admitted or denied.

Occasionally, a defendant includes an inadvertent but express and unequivocal admission of fact in an answer. The penalty is undeniably severe: the admission is binding. See Fuentes v. Tucker (1947) 31 Cal.App.2d 1, 5 ; Peyton v. Cly (1960) 184 Cal.App.2d 193, 195 . But see Chase v. Van Camp Sea Food Co. (1930) 109 Cal.App. 38, 44 ( dictum; no unequivocal admission found ). A defense attorney should rigorously review an answer before filing to avoid inadvertent admission of a material allegation of the complaint.

Denial by Affirmative Statement . The denial of an allegation in a complaint need not be negative in form: An affirmative statement that directly contradicts an allegation in the complaint, or is inconsistent with it, is equivalent to a specific denial. ( Burris v. People’s Ditch Co. (1894) 104 Cal. 248, 253 ; Cahill Bros. v. Clementina Co. (1962) 208 Cal.App.2d 367, 385 .)

It can be difficult and time-consuming to draft denials by affirmative statement. Most defense attorneys consider it better practice to specifically deny paragraphs of a complaint, admitting only those allegations that are true, and not to rely on affirmative statements that only by implication may show certain allegations to be at issue.

C. Denials Based on Information and Belief or Lack of Information or Belief

An allegation in a complaint may be denied positively— i.e ., based on knowledge that it is false (in the form of a statement such as “Defendant denies the allegation in Paragraph 1 …”)—or it may be denied “upon information and belief” or for “lack of sufficient information or belief.” ( Code Civ. Proc., § 431.30, subd. (f) .) These “nonpositive” forms of denial may be used only if the defendant lacks sufficient knowledge to admit or deny an allegation positively. ( Dobbins v. Hardister (1966) 242 Cal.App.2d 787 .)

A denial on information and belief should not be used if the defendant has actual knowledge, or can be reasonably presumed to have knowledge, that would permit a positive denial or admission. Also, denial on information and belief should not be used when the plaintiff alleges facts that are a matter of public record. This is because the defendant has the means to learn the truth of the allegation ( Transworld Sys., Inc. v. Rogan (1989) 210 Cal.App.3d 731, 733 ).

It is common for a defendant to use positive denials to allegations of a complaint. Keep in mind, however, that the plaintiff has the right during discovery to require a defendant to state facts on which a denial is based, and that a defendant who has no basis for a positive denial may be impeached at trial. The defense attorney should review the answer carefully to ensure that positive denials are based on personal knowledge and, when appropriate, that other denials are made on information and belief or on lack of information or belief.

1. Denial Based on Information and Belief

When a denial is based on information and belief, rather than on positive knowledge, it must specifically include both “inform” and “belief”; omitting one or the other is a technical defect inconsistent with the statute and operates as an admission of the allegation. ( Aronson & Co. v. Pearson (1926) 199 Cal. 295 .)

Defendant, on information and belief, denies each and every allegation of paragraph 6 of the complaint.

2. Denial Based on Lack of Information and Belief

A defendant who has no information or belief about facts alleged in the complaint, but does not wish to admit the allegations, is permitted to deny “for lack of information or belief.” The denial should not stop with the allegation that the defendant does not have information or belief sufficient to enable him or her to answer, but must go further and deny the allegations, i.e. , by adding the phrase, “and basing denial on that ground, denies….” ( Ziegler v. Ohio Farmers Ins. Co . (1937) 23 Cal.App.2d 138 .)

Defendant lacks information or belief to answer the allegations of paragraph 6 of the complaint, and basing his denial on that ground, denies each and every allegation in it.

( Jensen v. Dorr (1911) 159 Cal. 742 .) Defendant also may deny some but not all of the allegations within a paragraph for lack of information or belief.

Defendant lacks information or belief to answer the allegations of paragraph 6 , lines 14-21 of the complaint, and basing his denial on that ground, denies each and every allegation in it.

A few decisions based on technical grounds have held insufficient a denial limited to saying that “defendant has no knowledge or information sufficient to form a belief.” ( Davidson Inv. Co. v. Dabney (1930) 103 Cal.App. 392 .) More often, however, such defenses are considered waived if not objected to in the trial court. ( Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.App.2d 284 .)

A. Objections

When responding to a complaint or cross-complaint, a defendant or cross-defendant may object on multiple grounds, including lack of subject matter jurisdiction and lack of legal capacity to sue. ( Code Civ. Proc., § 430.10 .)

Code of Civil Procedure section 430.30 provides that when a defect or ground for objection (often called a ground for demurrer) appears on the face of a pleading, or is based on a matter of which the court may take judicial notice, then the pleading may be objected to by demurrer rather than an answer. When such a defect does not appear on the face of the pleading, then it may be raised by answer. ( Code Civ. Proc., § 430.30, subd. (b) .)

In practice, defendants are permitted to use answers to raise objections to complaints, even to matters appearing on the face of the complaint. Modern practice tends to promote judicial economy, lowering the necessity for hearings on demurrers in already overcrowded judicial dockets.

Failure to object to a complaint by demurrer or answer waives the defect, unless it is an objection in which (1) the court lacks subject matter jurisdiction, or (2) the complaint fails to state facts sufficient to constitute a cause of action. ( Code Civ. Proc., § 430.80 .)

B. Affirmative Defenses

In addition to denials of the allegations in a complaint, an answer should include any new matter the defendant may want to raise that constitutes a defense to the allegations. ( Code Civ. Proc., § 431.30, subd. (b) .) This new matter is also commonly referred to as “affirmative defenses.” ( Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812 .)

Looking ahead, during the discovery phase of the case, the plaintiff will probably ask the defendant to identify all of the facts, persons with knowledge, and documents that support each denial or defense. During the drafting of the answer, keep any information that supports the denials and defenses organized for easy future reference.

With few exceptions, defenses not raised in the answer are waived ( Code Civ. Proc., § 430.80 ), and evidence about any defense not pleaded will be inadmissible at trial. ( California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 ; Carranza v. Noroian (1966) 240 Cal.App.2d 481 .)

Affirmative defenses pleaded in the answer are automatically considered denied by the plaintiff and are at issue at trial. ( Code Civ. Proc., § 431.20, subd. (b) .) The plaintiff is not permitted to file a reply controverting new matter pleaded in an answer. ( Code Civ. Proc., §§ 422.10 .) Nonetheless, at the time of trial, the plaintiff will be free to introduce evidence opposing the defenses pleaded in the answer, despite lack of any prior pleading. ( Martin v. Sugarman (1933) 218 Cal. 17 ; Aerojet Gen. Corp. v. Superior Court (1986) 177 Cal.App.3d 950, 953 .)

Because no reply pleading advises a defendant whether or how the plaintiff will controvert the affirmative defenses, the defendant should propound discovery to address this point. This can be done, for example, through contention interrogatories to the plaintiff. See generally California Civil Discovery Practice, chapters 1 and 2 . Thus, if the answer pleads as a defense a statute of limitations, the defendant should pose interrogatories to solicit the facts on which the plaintiff contends that this defense is inapplicable, identifying the witnesses and documents relevant to the plaintiff’s position.

Affirmative defenses should be pleaded whenever, in good faith and with the exercise of due care, counsel can identify facts on which to base them. Substantive law determines the issues on which the defendant has the burden of proof and thus the specific defenses available in response to an individual cause of action.

The Judicial Council of California Civil Jury Instructions (CACI) can be useful as a checklist to identify various causes of action and defenses. Each instruction states the approved requirements for various causes of action and defenses. These jury instructions also indicate which party will have the burden of proof on issues at trial. The information in this source can be examined closely against the available facts to determine the appropriateness in a given answer. For emerging and evolving defenses, consult the latest cases in the particular area of substantive law that is the subject of the answer.

Although no California statute expressly permits a defendant to plead inconsistent defenses in the answer, California courts have long recognized the right to do so ( Banta v. Siller (1898) 121 Cal. 414 ) as long as the defenses are kept separate from one another.

A. Caption; Opening Paragraph

Like other pleadings and papers, answers must conform in size and format to the specifications of California Rules of Court, rules 2.100 through 2.119 .

Defense counsel should be careful to state the name of the defendant (or of each multiple defendant) on whose behalf an answer is being filed. Each defendant must answer the allegations of a complaint. In multiple party litigation, a defendant cannot rely on defenses raised in the answer of a codefendant but ignored in one’s own answer. ( Kirk v. Santa Barbara Ice Co . (1910) 157 Cal. 591, 594 .)

B. Body of Answer

The body of the answer must contain (1) general or specific denials; and (2) defenses.

If a general denial is used, then the paragraph containing the denial should be numbered, if it will be followed by additional paragraphs stating defenses or other matter. If specific denials are used, then they should be set out in separate, numbered paragraphs.

2. Objections and Affirmative Defenses

Objections and defenses to a complaint as a whole should follow the general denial or specific denials.

Each defense must be separately stated and must refer to the causes of action that it is intended to answer; each defense should be separately numbered. ( Code Civ. Proc., § 431.30, subd. (g) ; Cal. Rules of Court, rule 2.112 .)

The same rules for pleading “ultimate facts” rather than “legal conclusions” that apply to allegations in a complaint apply to pleading defenses in an answer. A defendant who wishes to assert a particular defense must plead the essential facts of that defense in the answer. ( Code Civ. Proc., § 431.30, subd. (b) .)

3. Incorporation by Reference

Incorporation by reference is useful for:

Minimizing repetitions in the answer when responses to various causes of action are the same; and

Including documents in the body of the answer without the need for extensive quotations.

Attorneys customarily answer allegations appearing later in a complaint by incorporating by reference earlier responses, denials, or defenses directed to other causes of action.

Answering paragraph 14 of plaintiff's complaint, defendant incorporates by this reference each answer, admission, and denial contained in paragraphs 1, 3, 5, and 7 of this answer, as if repeated here fully.

When a defense is based on a particular document ( e.g. , a letter or written contract), the attorney should attach the document to the answer and specifically incorporate it by reference in the same manner as documents are incorporated by reference in a complaint. Incorporating a document by reference also allows the court and the other parties to view the full text of a document in dispute.

The Judicial Council has developed and approved optional forms for answers in California trial courts in any action based on personal injury, property damage, wrongful death, unlawful detainer, breach of contract, or fraud. ( Code Civ. Proc., § 425.12 ; Cal. Rules of Court, rule 1.45 .) Be cautious about using official forms. Ensure that the form provides an opportunity for accurate and complete responses to every allegation in the complaint. Also, ensure that the form permits all appropriate defenses to be asserted. Otherwise, the client is best served by drafting a tailored answer.

No statute or rule requires that an answer contain a prayer or demand for relief. However, many attorneys customarily include the answer with a prayer.

WHEREFORE, defendant _ _[name]_ _ prays that plaintiff _ _[name]_ _ take nothing by this action and that defendant be awarded costs and all other just relief.

The prayer may also include a request for attorney fees, when permitted to a prevailing defendant, to bring the matter to the court's attention; no separate cross-complaint is generally required. ( Civ. Code, § 1717 ( when contract authorizes attorney fees to one party, any contracting party prevailing in action on that contract is entitled to recover attorney fees ); Scott Co. v. Blount, Inc . (1999) 20 Cal.App.4th 1103 ( Civ. Code, § 1717 requires that any contractual provision for attorney fees to “prevailing party” must be applied mutually, even if contract specifies that only one party may recover fees ).)

5. Date; Subscription

It is not essential to date the answer, although it is considered good office practice to date the signature on the answer. If the answer is verified, the verification will carry a date. When the answer is filed, the court clerk will stamp it with the filing date, and the attached proof of service form will show the date of service.

The answer must be signed by the attorney in the attorney's individual name or by the party, if the party is unrepresented. ( Code Civ. Proc. § 128.7, subd. (a) .) By presenting the answer to the court, the attorney is certifying to the best of his or her knowledge, after reasonable inquiry, that the denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief. ( Code Civ. Proc., § 128.7, subd. (b) .)

C. Verification

If the complaint is verified, then the answer must also be verified. ( Code Civ. Proc., § 446 .)

If the answer must be verified, then allot time for client review and verification before the filing deadline.

Public entities do not need to verify their complaints. An answering defendant must verify its answer to the unverified complaint of a public entity or a public officer acting in an official capacity, unless the answering defendant is also a public entity or officer, or unless an admission of truth in the complaint might subject the defendant to criminal prosecution. ( Code Civ. Proc., § 446 .)

A verification may be either (1) positive or (2) on information and belief. The form of verification depends on the degree of personal knowledge the verifier has of the matters set forth in the answer. If the verifier positively knows that an allegation is false, then the form of the denial should be positive ( e.g. , “Defendant denies . . . “); if the verifier lacks sufficient knowledge to positively deny an allegation, the denial should be in the form of information and belief.

A corporate defendant’s verification can be made by any officer. ( Code Civ. Proc., § 446, subd. (a) .)

The selection of the agent for a corporate verification is important in certain circumstances because the verification of an agent who is not a party may be a waiver of the agent’s personal privilege against self-incrimination; thus a person may decline to serve as agent and a corporation may be obliged to appoint another person as agent, one who can, without fear of self-incrimination, make the necessary verification.

The verification may be placed below the signature on the same page, or on a separate page. While the answer may be verified by an attorney, it is discouraged because the party who verifies a pleading becomes, in effect, a witness to every fact verified, and may later be asked to testify at a deposition or trial. ( Code Civ. Proc., § 446 .)

The attorney should review an answer to be verified by the client to ensure that there is no basis for the plaintiff to claim a waiver of the attorney-client privilege through disclosure of any confidential communications. ( Evid. Code, § 912 .) Verifications made “on information and belief” have been held not to waive the defendant’s attorney-client privilege. ( Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 831 ( allegations responded to also were vague, conclusional, and lacked “factual depth” ).) Thus, the attorney should be particularly cautious if the client’s verification is positive in form, rather than made on information and belief.

Under Code of Civil Procedure section 465 , an answer is a pleading “subsequent to the complaint” and must be filed with the court in which the complaint was filed. Additionally, the proof of service must be filed.

Check the local rules to identify any special rules regarding filing. Some courts permit or require electronic filing. ( Code Civ. Proc., § 1010.6 ; Cal. Rules of Court, rule 2.253 .) Some courts allow filing by fax transmission. ( Code Civ. Proc., § 1010.5 ; Cal. Rules of Court, rule 2.304 .)

Also review the court website to identify the appropriate filing fees.

Copies of the answer and proof of service must be served on the adverse parties or their attorneys. ( Code Civ. Proc., § 465 .) A defendant who does not answer or otherwise appear is not entitled to be served with subsequently filed papers in the action; thus a co-defendant who has not yet appeared does not need to be served. ( Code Civ. Proc., § 1014 .)

Generally, an answer may be served personally or by mail on the party’s attorney, or on a party who has no attorney. ( Code Civ. Proc., §§ 1011 – 1013 .)

Check if the local rules require electronic service.

Electronic service is mandatory in some instances ( Code Civ. Proc., §§ 1010.6, subds. (c) & (d) ; Cal. Rules of Court, rule 2.251 ) and permitted in other instances ( Code Civ. Proc., § 1010.6, subd. (a) ; Cal. Rules of Court, rule 2.251 ). Service by fax is permitted only if the parties agree and confirm their agreement in writing. ( Code Civ. Proc., § 1013, subd. (e) ; Cal. Rules of Court, rule 2.306 .)

Keep in mind that the plaintiff can demur to the answer within 10 days after defendant or cross-defendant serves the answer to the complaint or cross-complaint. See Code of Civil Procedure section 430.40, subdivision (b) . Also, plaintiff can move to strike the answer within time allowed to respond, i.e. , within 10 days after defendant or cross-defendant serves the answer. ( Code Civ. Proc., §§ 435, subd. (b)(1) , 430.40, subd. (b) .) Consider calendaring these deadlines internally to keep track of any missed deadlines by opposing counsel.

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Home / Insights / Blog

The rules on defendant admissions

Matthew Tuff

The is article first appeared in PI Focus Magazine – May 202 1

The issue of ‘admissions’ has given rise to its fair share of litigation. Here, I consider what is a valid, binding admission, and when a defendant can withdraw their admission. Admissions can be made by a party before or after the commencement of proceedings and, once proceedings have been started, a party may enter judgment upon a pre-action admission made by another party.

A valid admission?

The first question to consider is whether the defendant has actually made a valid, binding admission. The wording of the admission is very important.

The Personal Injury Pre-Action Protocol provides useful guidance about how an admission should be worded. It states that (no later than three months after acknowledging the letter of claim), the defendant should state if liability is admitted by confirming that the accident occurred, that it was caused by their breach of duty, that the claimant suffered loss and that there is no defence under the Limitation Act 1980.

If the defendant states that liability is admitted or primary liability is admitted, that is a binding admission of liability. If they say they ‘will deal with your claim’, it is not. If they say breach of duty is admitted, this is not a full admission of liability (although it is still quite useful). If they say causation is not admitted, this is arguably not a full admission of liability (although see Cavell v Transport for London [2015] EWHC 2283 (QB), below). While one would not reasonably expect a defendant to concede that all of the losses claimed were due to their breach of duty, they are required at least to concede that it caused some loss (the extent of which remains to be proved). If any admission is made in a without prejudice letter, it is of little use as it cannot be shown to the court.

Greater Manchester Fire & Rescue Service v Veevers [2020] EWHC 2550 is a useful example of the above points. This was a fatal accident case relating to the death of a firefighter. On the eve of the inquest, solicitors for the fire service wrote to Mrs Veevers’ solicitors, saying:

‘Our clients are not in a position to consider an admission of liability and we have not undertaken a detailed forensic analysis of the potential for liability in any civil claim on their behalf. The purpose and objective in making the comments which we make directly below is to attempt to remove any additional stress from the family during and immediately after the inquest…We write in open correspondence in order to advise that our clients are willing to compensate the estate and dependents of Stephen Hunt pursuant to the Fatal Accidents Act 1976… for any loss which they may prove to be attributable to the incident on 13 July 2013 together with payment of their reasonable costs’.

At detailed assessment at the end of the case, the fire service argued that the costs of the claimant’s lawyers attending the inquest were not recoverable, in view of the above assurance that the fire service had provided. But the court held that the costs were recoverable, as the defendant had not given a formal admission of liability. The court stated obiter that, had liability not been in issue, the costs of attending the inquest would not have been recoverable.

Resiling from an admission

Of course, even if a defendant gives a valid, full admission of liability, they may still be entitled to resile from that admission at a later stage. CPR 14.1A provides that where a defendant makes an admission before the commencement of proceedings, they may withdraw that admission (before proceedings have been issued) if the party to whom they made the admission agrees. After the issue of proceedings, they can only withdraw that admission with the consent of all the other parties, or the court’s permission.

CPR 14 .1 provides that, where a defendant makes an admission after the commencement of proceedings, the permission of the court is required to withdraw or amend a decision. The court’s power to allow a party to retract an admission is discretionary, but Practice Direction to Part 14 (paragraph 7.2) states:

‘In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including: (a) the grounds upon which the applicant seeks to withdraw the admission, including whether or not new evidence has come to light which was not available at the time the admission was made; (b) the conduct of the parties, including any conduct which led the party making the admission to do so; (c) the prejudice that may be caused to any person if the admission is withdrawn; (d) the prejudice that may be caused to any person if the application is refused; (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial; (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and (g) the interests of the administration of justice.’

None of these factors has more importance than the other (although, depending on the facts of the case, some may be more relevant than others; Woodland v Stopford 2011 EWCA Civ 266).

As a general rule, the later in the proceedings an application to resile is made, the lower its prospects of success. The court will want to know why the applicant has left it so late. As for the ‘conduct of the parties’, this would be relevant where, for example, the claimant held back important evidence until after the admission was made. Below are some cases that show the court’s approach when considering applications to withdraw admissions.

In Foster v United Lincolnshire Trust [2016], the defendant applied to withdraw only three weeks before trial, and more than three months after the new evidence relied on had come to light. The court denied its application.

Sometimes, a genuine error by the defendant can be sufficient grounds for allowing an application to resile (provided that the defendant makes its application promptly). In Moore v Worcestershire Acute Hospitals NHS Trust [2015] EWHC 1209 (QB), the defendant made an admission following ‘a careless and cursory’ reading of a medical report. The court said the fact that this was a ‘pure mistake’ was significant, because it distinguished it from being a ‘tactical change’. The defendant had a reasonable prospect of defending the claim if allowed to withdraw from its admission. The application was made very early in the proceedings, and the court granted the defendant’s application.

By contrast, see Cavell. The claimant injured his back when he fell off his bike due to a pothole in a bicycle lane. The defendant’s claims handlers admitted liability and proceedings were issued. Shortly after filing its defence, the defendant applied to withdraw the admission, arguing that it had been made in error, and that it had a strong case on liability. The wording of the defendant’s admission had been ‘Please note liability will not be an issue, subject to causation’ and the court concluded that ‘The only sensible meaning of those words is that primary liability for the accident is admitted but no admission is made as to whether the injury suffered (or some part of it) was caused by the accident. It clearly was an admission of liability’.

The court noted that the defendant had offered no explanation as to how an error had been made when admitting liability. Its claims handlers were hugely experienced and all the available evidence showed they had carried out a careful consideration of the liability issue. No new evidence had come to light supporting the defendant’s case. It was not in the interests of justice to allow withdrawal of an admission after mature reflection by highly competent professional advisers.

In the Chancery Division case of SL Claimants v Tesco [2019] EWHC 3312 (Ch), the defendant had made a ‘carefully considered’ admission of liability in their pleadings. No new evidence had come to light – the defendant had simply reappraised the evidence and decided that in fact it did not support the admission previously made. This reappraisal had occurred almost three years after the pleadings were originally filed. The court denied the defendant’s application.

Wood v Days Healthcare UK Limited [2017] EWCA Civ 2097 shows that ‘new evidence’ is not limited to liability issues. The claimant’s solicitors initially indicated that they considered the claim to be a fast track case. The first defendant’s claim handlers admitted liability in full. The claimant’s solicitors later advised the first defendant that it was becoming clear that the value of the claim was much higher than initially anticipated and, when court proceedings were issued, the statement of value in the particulars referred to the claim being ‘in excess of £300,000’. Shortly after the commencement of proceedings, the first defendant applied to resile from its admission of liability.

At first instance, the first defendant was denied permission to withdraw the admission. At the same hearing, judgment was entered against a second defendant. The first defendant appealed the decision to deny its application to withdraw. The Court of Appeal said that the increase in value of the claim more than ten-fold amounted to highly material ‘new evidence’ (CPR 14PD 7.2(a)). An increase in value of a few thousand might not amount to ‘new evidence’, but such a significant increase did. This in itself would have been enough to allow the defendant’s application; but the fact that judgment had been entered against a second defendant also meant that there was little prejudice to the claimant in allowing the first defendant to retract its admission.

By contrast, see Royal Automobile Club Ltd v Catherine Wright [2019] EWHC913 (QB), in which the claimant fell down stairs while at work. On receiving the letter of claim, the defendant alleged that it should have been brought through the Claims Portal, but the claimant’s solicitors replied that the claim was certainly in excess of £25,000. The defendant admitted liability. The claimant later served a schedule valuing the case at over £1m. Shortly after the commencement of proceedings, the defendant applied to withdraw its admission. The defendant’s application was refused. The court said it was clear from the outset that this was a complex case, and there was no reasonable basis for the defendant to decide that it was a low value claim.

These cases show that the circumstances in which a party may be permitted to withdraw an admission are not limited to those where new liability evidence has come to light. At the same time, a defendant has a relatively high evidential bar to overcome in order to persuade a court to grant its application; and if there has been delay on its part or the matter is close to trial, this can be fatal to its application.

Matthew Tuff is senior associate at Moore Barlow and Co-Ordinator for the APIL Procedure SIG (special interest group)

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Delhi High Court

Ram sarup lugani & anr. vs nirmal lugani & ors. on 19 october, 2020, equivalent citations: aironline 2020 del 1420, author: hima kohli, bench: hima kohli , subramonium prasad.

1. The instant appeal is directed against the judgment and order dated 06.08.2020 passed by a learned Single Judge whereby, Chamber Appeal registered as OA 122/2019, filed by the appellants/plaintiffs in CS(OS) 182/2019, challenging the order dated 30.09.2020, passed by the learned Joint Registrar closing their right to file the replication in response to the written statement of the respondents/defendants, has been dismissed.

2. The appellants/plaintiffs herein had instituted a suit on the Original Side of the court in April, 2019 with the following prayers:-

"a. A Decree of Declaration thereby declaring that defendants 1 to 6 are not eligible to continue as Trustee of defendant no. 7 Trust and hence cease to be Trustees of the said Trust and consequently appoint an Administrator to frame a scheme for appointing new Trustees in place of defendants 1 to 6, while retaining plaintiffs as trustees.

b. A Decree of Permanent Injunction restraining defendant no.1 from representing herself as a Trustee of Defendant Trust.

c. A Decree of Mandatory Injunction directing the defendants to deposit all original title deeds/lease deeds and other ownership documents pertaining to Sector 55 and Sector 62 Schools, with plaintiff no.1 and also return all assets/properties of defendant Trust or of the schools running under the aegis of defendant Trust, i.e. „Gurugram Public School‟ to the respective Schools.

d. A Decree of Recovery of amount from defendants 1 to 6, assessed by a valuer appointed by this Hon‟ble Court, for the loss suffered by the Sector 55 School of Defendant Trust, due to loss of vehicles bearing nos. HR26BE4849 & HR26BP2892.

e. A Decree of rendition of accounts directing the defendants to render accounts for the period 2011 till date of decree, and further direct the defendants to make good all losses caused by their acts of omission and commission and consequently to replenish all such amounts in to the trust with interest.

f. Award cost of suit in favour of plaintiffs.

Such other relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may kindly FAO(OS).47/2020 Page 2 of 29 be granted in favour of the plaintiffs and against the defendants."

3. Summons were issued in the suit and the case was adjourned to 23.07.2019. In the meantime, written statement was filed by the respondents/defendants. When the matter was listed in court on 23.07.2019, learned counsel for the appellants/plaintiffs had stated that he had received a copy of the written statement and the court had granted him four weeks‟ to file the replication and the affidavit of admission/denial of documents. The suit was directed to be posted before the learned Joint Registrar on 30.09.2019, for further proceedings. On 30.09.2019, when learned counsel for the appellants/plaintiffs had sought for more time from the learned Joint Registrar to file the replication, noting that over two months had lapsed reckoned from 23.7.2019, he had closed their right to do so and directed that admission/denial of the documents of the respondents/defendants be carried out. The order passed by the learned Joint Registrar on 30.09.2019, reads as under:

"Written statement and affidavit of admission/denial of documents filed on behalf of defendants no.1 to 6. Copy supplied.

No replication to the written statement filed. Learned counsel for plaintiff has submitted that he is going to file replication within two weeks along with appropriate application, but same is strongly opposed by learned counsel for defendants on the ground that as per Chapter 7 Rule 5 Delhi High Court (Original Side) Rules, 2018, only 45 days has been granted to the plaintiff to file replication including 15 days time of extension on application, but neither such application moved nor replication filed within 30 days. On 23.07.2019, plaintiff sought time to file replication, but no replication has been filed despite lapse of more than two FAO(OS).47/2020 Page 3 of 29 months and no ground is made out for further extension of time. Accordingly, opportunity of plaintiff to file replication is hereby closed.

Admission/denial of documents on behalf of defendant qua the documents of plaintiff carried out.

Learned counsel for defendant has admitted six documents of plaintiff which are Ex.P-1 to Ex.P-6. Rest of the documents are denied.

On the other hand, plaintiff has not filed any affidavit of admission/denial of documents qua the documents of defendants due to no admission/denial is carried out on behalf of plaintiff and consequences of non-filing of affidavit of admission/denial shall follow.

List the matter before the Hon‟ble Court for issues/further direction on the date already fixed i.e. 01.11.2019."

4. The above order of the Joint Registrar was challenged by the appellants/plaintiffs by filing a Chamber Appeal. Vide judgment/order dated 06.08.2020 impugned herein, the learned Single Judge has dismissed the said Chamber Appeal holding that the replication could not be filed beyond the period of 45 days, as prescribed under Rule 5 of Chapter VII of the Delhi High Court(Original Side) Rules, 2018 (for short „DHC Rules‟) and there is no power to condone the delay beyond the time prescribed under the DHC Rules. Aggrieved by the said order, the present appeal has been filed.

5. The short question which arises for our consideration is as to whether in a non-commercial ordinary civil suit, the period prescribed for filing the replication under Rule 5 of Chapter VII of the DHC Rules is directory or mandatory in nature and whether the time prescribed therein, even if not extendable by the Joint Registrar, can still be extended by the court.

6. Arguing for the appellants/plaintiffs, Mr. Tanmaya Mehta, learned counsel submitted that the respondents 1 to 6 had filed a written statement running into over 125 pages and they had filed over 500 pages of documents. Due to the voluminous pleadings in the written statement and the documents filed and the medical condition of the appellant No.1, who is the Managing Trustee of the respondent No.7/Trust and is 93 years of age with constraints in his movement, the appellants and the counsel took some time to prepare the replication. The said delay was not deliberate and ought to have been condoned. Learned counsel places reliance on Desh Raj v. Balkishan , reported as (2020) 2 SCC 708 wherein, in an appeal arising from a decision of the Delhi High Court, while interpreting the provisions of Order VIII Rule 1 of the CPC , in circumstances where the defendant therein had filed his written statement after a delay of 95 days beyond the maximum extendable period provided under Proviso 2 of Rule 1, Order VIII of the CPC , the Supreme Court has held that the said provision is only directory and not mandatory. Drawing an analogy with the fact situation in the said decision , learned counsel for the appellants/plaintiffs contended that the time period prescribed in Rule 5 of Chapter VII of the DHC Rules is also directory in nature and therefore, it cannot be said that the court is powerless to condone the delay and accept the replication beyond the time prescribed therein.

7. Seeking to distinguish the way Rule 4 and Rule 5 of the DHC Rules are worded, learned counsel for the appellants/plaintiffs submitted that unlike Rule 4, that mandates the Registrar to close the right to file the written statement upon expiry of 120 days, no such rigorous language has been used in Rule 5. Rather, Rule 5 stipulates that upon expiry of 45 days, the Registrar has to place the matter before court for further orders. Therefore, even if the Registrar has no power to condone the delay beyond the period of 45 days, FAO(OS).47/2020 Page 5 of 29 the court can condone the delay even beyond the said period and take the replication on record.

8. Adverting to Rule 16 in Chapter I of the DHC Rules, learned counsel for the appellant sought to urge that the said Rule stipulates that nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for meeting the ends of justice or to prevent the abuse of the process of court and the said provision could have been well invoked by the learned Single Judge in the present case. Placing reliance on Rule 14 of Chapter I that empowers the court to dispense with making compliance of the DHC Rules for sufficient cause shown it was argued that Rules 14 and 16 vest sufficient powers in the court to relax the period prescribed in Rule 5 and permit filing of the replication beyond the period of 45 days. It was sought to be canvassed that if it is held that there is no power vested in the court to condone the delay in filing the replication beyond the period of 45 days, then Rules 14 and Rule 16 will become superfluous.

9. Another argument sought to be advanced on behalf of the appellants/plaintiffs was that when Rule 5 provides that after the period of 45 days, the Registrar has to place the matter before the court for passing appropriate orders, it postulates that discretion still vests in the court to accept the replication even beyond the period of 45 days, on sufficient reasons being offered as to why the same was not filed within the prescribed time. Learned counsel submitted that if the Rule is not construed in this manner, the words „for appropriate orders‟ used in Rule 5, will be rendered nugatory.

10. Referring to the scheme of Chapter VII of the Rules which shows that after the replication, parties are to proceed with admission/denial of FAO(OS).47/2020 Page 6 of 29 documents which the Registrar can get done himself, learned counsel contended that the very fact that the matter has to be placed in court, shows that there is ample power in the court to accept the replication filed beyond the period of 45 days and that is the reason why the matter is required to be placed before the court to consider as to whether sufficient cause has been shown by a party to condone the delay even beyond the period of 45 days. Lastly, it was submitted that the High Court being a Constitutional court, has the inherent power to accept replications even beyond the time prescribed in the DHC Rules and the said power cannot be circumscribed or curtailed in any manner.

11. A quick glance at the rule position first. Rule 4 falling under Chapter I of the DHC Rules is the definition clause which defines various terms used in the Rules. Rule 4(e) defines "The Court" or "this Court", while Rule 4(k) defines „Registrar‟ and read as under:

"4. Definitions. --In these Rules, unless the context otherwise requires:

(e) "The Court" or "this Court" means the Delhi High Court;

(k) "Registrar" means and includes the Registrar and Joint Registrar, respectively of the Court, and includes any other officer of the Court to whom the powers and functions of the Registrar under these Rules, may be delegated or assigned;"

12. Chapter VII of the DHC Rules lays down the procedure for appearance by the defendant, of filing of the written statement, set off, counter-claim and FAO(OS).47/2020 Page 7 of 29 replication. Rule 4 and Rule 5 of Chapter VII are relevant for this case and read as under:

"4. Extension of time for filing written statement.--If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days, it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter. For such extension of time, the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid/ deposited. In case the defendant fails to file the affidavit of admission/ denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed to be admitted. In case, no written statement is filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement.

5. Replication.-The replication, if any, shall be filed within 30 days of receipt of the written statement. If the Court is satisfied that the plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days, it may extend the time for filing the same by a further period not exceeding 15 days but not thereafter. For such extension, the plaintiff shall be burdened with costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/ deposited. In case no replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court. An advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along with the replication, shall be served on the defendant and the replication together with the said documents shall not be accepted unless it contains an endorsement of service signed by the defendant/ his Advocate." (emphasis supplied) FAO(OS).47/2020 Page 8 of 29

13. Rules 14 and 16 of Chapter I of the DHC Rules that lays down the general provisions, read as under:

"14. Court‟s power to dispense with compliance with the Rules.- The Court may, for sufficient cause shown, excuse parties from compliance with any requirement of these Rules, and may give such directions in matters of practice and procedure, as it may consider just and expedient.

[Provided where the Court/Judge is of the opinion that Practice Directions are required to be issued, he may make it suitable reference to the Hon‟ble Chief Justice.]"

"16. Inherent power of the Court not affected.- Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court."

14. The term "The Court" and "Registrar" have been defined in Rule 4 that is a part of Chapter I of the Rules. On a reading of Rule 5 it is clear that the replication, if any, should be filed within a period of 30 days from the date of receipt of the written statement. The word "shall" used in the said Rule postulates that the replication must be filed within 30 days of the receipt of the written statement. The Registrar does not have the power to condone any delay beyond 30 days. The permission to condone the delay beyond the period of 30 days, lies with the court. If the court is satisfied that the plaintiff was prevented by sufficient cause or for exceptional and unavoidable reasons from filing the replication within 30 days, it may extend the time for filing the same by a further period not exceeding 15 days with a suffix appended to the Rule stating, "but not thereafter". The phrase "but not thereafter"

mentioned in the Rule indicates that the intention of the rule making FAO(OS).47/2020 Page 9 of 29 authority was not to permit any replication to be entertained beyond a total period of 45 days. If any other interpretation is given to the said Rule, then the words "but not thereafter", will become otiose.

15. This is not the first time that the phrase, "but not thereafter" have been used in the statute. The said preemptory words have been used in other provisions that have come up for interpretation before the Supreme Court. In Union of India v. Popular Construction Co , reported as (2001) 8 SCC 470, the words "but not thereafter" were used in relation to the power of the court to condone the delay in challenging the award beyond the period prescribed under Section 34 of the Arbitration and Conciliation Act, 1996 and the Supreme Court observed as below:-

"12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result.

16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with"

sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34 , sub-section (3) would not be an application "in accordance with" that sub-section. Consequently by virtue of Section 34(1) , recourse to the court FAO(OS).47/2020 Page 10 of 29 against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired ... the award shall be enforced under the Code of Civil Procedure , 1908 in the same manner as if it were a decree of the court".

This is a significant departure from the provisions of the Arbitration Act, 1940 . Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow" ( Section 17 ). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34 , the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act."(emphasis supplied)

16. In Singh Enterprises v. Commissioner of Central Excise, Jamshedpur & Ors , reported as (2008) 3 SCC 70, on interpreting Section 35 of the Central Excise Act, which contains similar provisions, the Supreme Court has observed as under:

"8. The Commissioner of Central Excise(appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act ") can be available for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of FAO(OS).47/2020 Page 11 of 29 communication to him of the decision of order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section(1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days‟ period."(emphasis supplied)

17. After referring to the above decision , in Commissioner of Customs and Central Excise v. Hongo India Private Limited & Anr , reported as (2009) 5 SCC 791, the Supreme Court went on to observe as under:

"30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.

32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.

35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act . The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the FAO(OS).47/2020 Page 13 of 29 applicability of the provisions of the Limitation Act , therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court." (emphasis supplied)

18. We may also profitably refer to Bengal Chemists and Druggists Association v. Kalyan Chowdhury , reported as (2018) 3 SCC 41, where while examining the provisions of the Companies Act , the Supreme Court made the following observations:

"3. Before coming to the judgments of this Court, it is important to first set out Section 421(3) and Section 433 of the Act. These provisions read as follows:

"421. Appeal from orders of Tribunal.--(1)- (2) * * * (3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed:

Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. ...

433. Limitation.--The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be."

4. A cursory reading of Section 421(3) makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act , and also provides a further period not exceeding 45 days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot come to the aid of the appellant because the provisions of the Limitation Act only apply "as far as may be". In a case like the present, where there is a special provision contained in Section 421(3) proviso, Section 5 of the Limitation Act obviously cannot apply.

5. Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of the learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay.

This would be to render otiose the second time-limit of 45 days, which, as has been pointed out by us above, is peremptory in nature." (emphasis supplied)

19. In P. Radhabai v. P. Ashok Kumar, reported as (2019) 13 SCC 445, while construing the phrase, "but not thereafter" used in the proviso to sub section (3) of Section 34 of the Arbitration and Conciliation Act, the Supreme Court held thus:

"32.4. The limitation provision in Section 34(3) also provides for condonation of delay. Unlike Section 5 of the Limitation Act, the delay can only be condoned for 30 days on showing sufficient cause. The crucial phrase "but not thereafter"

reveals the legislative intent to fix an outer boundary period for challenging an award.

X X X X 33.2. The proviso to Section 34(3) enables a court to entertain an application to challenge an award after the three months' period is expired, but only within an additional period of thirty dates, "but not thereafter". The use of the phrase "but not thereafter" shows that the 120 days' period is the outer boundary for challenging an award. If Section 17 were to be applied, the outer boundary for challenging an award could go beyond 120 days. The phrase "but not thereafter" would be rendered redundant and otiose. This Court has consistently taken this view that the words "but not thereafter" in the proviso of Section 34(3) of the Arbitration Act are of a mandatory nature, and couched in negative terms, which leaves no room for doubt. ( State of H.P. v. Himachal Techno Engineers [State of H.P. v. Himachal Techno Engineers, (2010) 12 SCC 210 :

(2010) 4 SCC (Civ) 605] , Assam Urban Water Supply & SewerageBoard v. Subash Projects & Mktg. Ltd. [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg . Ltd., (2012) 2 SCC 624 : ( 2012) 1 SCC (Civ) 831] and Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai Patel [Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai Patel, (2018) 15 SCC 178 : (2019) 1 SCC (Civ) 141] .)

34. In our view, the aforesaid inconsistencies with the language of Section 34(3) of the Arbitration Act tantamount to an "express exclusion" of Section 17 of the Limitation Act."(emphasis supplied)

20. In New India Assurance Company Limited v. Hili Multipurpose Cold Storage Private Limited , reported as (2020) 5 SCC 757, the issue before the Supreme Court was whether Section 13(2)(a) of the Consumer Protection Act, 1986 that provides for the respondent/opposite party to file its response to the complaint within 30 days or such extended period, not extending 15 days, should be read as mandatory or directory i.e. whether the District FAO(OS).47/2020 Page 16 of 29 Forum would have the power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days. The Supreme Court has answered the said question in the following words:

"20. The legislature in its wisdom has provided for filing of complaint or appeals beyond the period specified under the relevant provisions of the Act and Regulations, if there is sufficient cause given by the party, which has to be to the satisfaction of the authority concerned. No such discretion has been provided for under Section 13(2)(a) of the Consumer Protection Act for filing a response to the complaint beyond the extended period of 45 days (30 days plus 15 days). Had the legislature not wanted to make such provision mandatory but only directory, the provision for further extension of the period for filing the response beyond 45 days would have been provided, as has been provided for in the cases of filing of complaint and appeals. To carve out an exception in a specific provision of the statute is not within the jurisdiction of the courts, and if it is so done, it would amount to legislating or inserting a provision into the statute, which is not permissible.

25. The contention of the learned counsel for the respondent is that by not leaving a discretion with the District Forum for extending the period of limitation for filing the response before it by the opposite party, grave injustice would be caused as there could be circumstances beyond the control of the opposite party because of which the opposite party may not be able to file the response within the period of 30 days or the extended period of 15 days. In our view, if the law so provides, the same has to be strictly complied, so as to achieve the object of the statute. It is well settled that law prevails over equity, as equity can only supplement the law, and not supplant it.

X X X X FAO(OS).47/2020 Page 17 of 29

27. It is thus settled law that where the provision of the Act is clear and unambiguous, it has no scope for any interpretation on equitable ground." (emphasis supplied)

21. A conspectus of the decisions referred to above leaves no manner of doubt that where ever the phrase "but not thereafter" has been used in a provision for setting a deadline, the intention of the legislature is to treat the same as a preemptory provision. Thus, if Rule 15 of the DHC Rules mandates filing of a replication within a period of 30 days reckoned from the date of receipt of the written statement, with an additional period of 15 days provided and that too only if the court is satisfied that the plaintiff has been able to demonstrate that it was prevented to do so by sufficient cause or for exceptional and unavoidable reasons, can the time for filing the replication be extended for a further period not exceeding 15 days in any event, with costs imposed on the plaintiff. The critical phrase "but not thereafter" used in Rule 15 must be understood to mean that even the court cannot extend the period for filing the replication beyond the outer limit of 45 days provided in the DHC Rules. Upon expiry of the said period, the plaintiff‟s right to file the replication would stand extinguished. Any other meaning sought to be bestowed on the above provision, would make the words "but not thereafter", inconsequential.

22. The next contention of Mr. Mehta that the words "the Registrar shall forthwith place the matter for appropriate orders before the court" used in Rule 5 of the DHC Rules indicates that the court would still have the power to accept a replication filed beyond a period of 45 days, is also untenable. The Supreme Court has emphasized that the answer to the problem as to whether a statutory provision is mandatory or is directory in nature, lies in FAO(OS).47/2020 Page 18 of 29 the intention of the law maker, as expressed in the law itself. The words "replication, if any, shall be filed within 30 days of the receipt of the written statement" and further, the words "further period not exceeding 15 days, but not thereafter" used in Rule 5 will lose its entire meaning if we accept the submission made on behalf of the appellants that even if the timeline for filing the replication cannot be extended by the Registrar, there is no such embargo placed on the court.

23. The court must start with the assumption that every word used in a statute, has been well thought out and inserted with a specific purpose and ordinarily, the court must not deviate from what is expressly stated therein. The period granted for filing the replication under Rule 15 of the DHC Rules is only 30 days and on expiry of 30 days, the court can only condone a delay which does not exceed 15 days over and above 30 days and that too on the condition that the plaintiff is able to offer adequate and sufficient reasons explaining as to why the replication could not be filed within 30 days. As observed earlier, since the terms „Court‟ and „Registrar‟ have been defined in the DHC Rules, Rule 5 requires that the court alone can extend the time to file the replication beyond the period of 30 days from the date of receipt of the written statement. Even the discretion vested in the court for granting extension of time is hedged with conditions and the outer limit prescribed is 15 days. If the replication is not filed within the extended time granted, the Registrar is required to place the matter back before the court for closing the right of the plaintiff to file the replication.

24. A reading of the relevant provisions of the DHC Rules shows that it is a special provision within the meaning of Section 29(2) of the Limitation Act (for short „the Act‟), that contemplates that where any special or local law prescribes a time limit that is different from the one provided for under the FAO(OS).47/2020 Page 19 of 29 Limitation Act, 1963 , then Section 4 to Section 14 of the Limitation Act, 1963 would be expressly excluded. It is well settled that even in a case where the special law does not exclude the provisions of Section 4 to Section 14 of the Limitation Act, 1963 by an express provision or reference, then too, if it is clear from the mandate or the language of the statute, the scheme of the special law will exclude the application of Section 4 to Section 14 of the Limitation Act, 1963. (Ref: Hukumdev Narain Yadav v. Lalit Narain Mishra , reported as (1974) 2 SCC 133).

25. It is equally well settled that when the provision of a law/statute prescribes specific provisions, then those provisions cannot be sidestepped or circumvented by seeking to invoke the inherent powers of the court under the statute. The principles required to be followed for regulating the inherent powers of the court in the context of applying the provisions of Section 151 CPC, have been highlighted in State of Uttar Pradesh & Ors. v. Roshan Singh & Ors. , reported as (2008) 2 SCC 488, wherein the Supreme Court has observed as under:

"7. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the Code of Civil Procedure does not deal with, the court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. If there are specific provisions of the Code of Civil Procedure dealing with the particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the court cannot be invoked in order to cut across the powers conferred by the Code of Civil Procedure . The inherent powers of the court are not to be used for the benefit of a litigant who has a remedy under the Code of Civil Procedure . Similar is the position vis-à-vis other statutes.

8. The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the Code of Civil Procedure . Section 151 CPC will not be available when there is alternative remedy and the same is accepted to be a well- settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the court are in addition to the powers specifically conferred on it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the court power of making such orders as may be necessary for the ends of justice of the court. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless under the Act." (emphasis supplied)

26. Yet again, expounding on the inherent powers of the court and the fetters placed on it, in K.K. Velusamy v. N. Palanisamy , reported as (2011) 11 SCC 275, the Supreme Court has made the following pertinent observations:

"12. The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions [see Padam Sen v. State of U.P. [AIR 1961 SC 218 : (1961) 1 Cri LJ 322] , Manohar Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] , Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] , Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava [AIR 1966 SC 1899], Nain Singh v. Koonwarjee [( 1970) 1 SCC 732] , Newabganj Sugar Mills Co. Ltd. v. Union of India [(1976) 1 FAO(OS).47/2020 Page 21 of 29 SCC 120 : AIR 1976 SC 1152] , Jaipur Mineral Development Syndicate v. CIT [(1977) 1 SCC 508 : 1977 SCC (Tax) 208 : AIR 1977 SC 1348] , National Institute of Mental Health & Neuro Sciences v. C. Parameshwara [( 2005) 2 SCC 256] and Vinod Seth v. Devinder Bajaj [(2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212] ]. We may summarise them as follows:

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with FAO(OS).47/2020 Page 22 of 29 the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court." (emphasis supplied)

27. Since the language of Rule 5 shows that the intention of the Rule making Authority was to exclude the provisions of the Limitation Act, 1963 , giving no power to the court to condone any delay beyond the period of 45 days for accepting the replication, learned counsel for the appellants/plaintiffs cannot be heard to state that Rule 16 could have been very well invoked by the learned Single Judge to take on record the belatedly filed replication. The sanctity of the period of 30 days, extendable by another period of 15 days cannot be diluted by giving such an interpretation. In view of the specific provision and the timeline stated in Rule 5 of Chapter VII, that precludes the court from extending the timeline beyond 45 days for accepting the replication, the argument advanced by Mr. Mehta, learned counsel for the appellants/plaintiffs that notwithstanding Rule 5, provisions of Rule 16 and Rule 14 of Chapter I of the DHC Rules empower the court to take on record, the replication even beyond the period of 45 days and ought to have been resorted to by the learned Single Judge, cannot be accepted

28. In our opinion, reliance placed by Mr. Mehta on Desh Raj (supra), is also misplaced. No doubt, the Supreme Court has held that a reading of proviso 2 appended to Rule 1 of Order VIII would show that the said Rule is FAO(OS).47/2020 Page 23 of 29 only directory and not mandatory, ultimately the Supreme Court has refused to condone the delay in that case . In fact , the said decision is not applicable to the facts of this case for the reason that in the said judgment , there was no occasion to deal with the scope and effect of Rule 5 of Chapter VII of the DHC Rules. In any event, the DHC Rules will have an overriding effect on the CPC . Notably the Code does not provide for filing of any replication. Order VI, Rule 1 describes "pleadings" to mean plaint or written statement. It is the Delhi High Court (Original Side) Rules, 2018 that provides a time limit for filing the replication and since the said Rules regulate the procedure, the same will have to prevail over the Code. We are in complete agreement with the view taken by the Division Bench of this court in DDA and Another Vs. K.R. Builders (P) Ltd. , reported as 2005 (81) DRJ 708 and relied on in HTIL Corporation, B.V. & Ors. v. Ajay Kohli & Ors. , reported as (2006) 90 DRJ 410, where it was observed as under:

"6. The question as to whether the CPC or the Original Side Rules will apply was considered by a Division Bench of this court in the recent case of DDA & Anr. v. K.R. Builders P. Ltd. , 2005 (81) DRJ 708 (DB). The finding of the Division Bench supported the view of the learned defence counsel that suits filed on the original side of this court would be governed by the rules framed by the High Court to the exclusion of the provisions of the CPC wherever the field is occupied by these Rules and that this court has the power to extend the time for filing the written statement even beyond 90 days. However, the Division Bench also clarified that Rule 3, as it then stood, of Chapter IV of the Delhi High Court (Original Side Rules) does not contemplate unending extensions to be granted on the asking.

Rule 3 provided as under:

"3. Extension of time for filing written statement.-- Ordinarily, not more than one extension of time shall be FAO(OS).47/2020 Page 24 of 29 granted to the defendant for filing a written statement provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient grounds for such extension and supported, if so required, by an affidavit."

7. The Division Bench pointed out that as per the rule quoted above, only one extension of time was to be granted for filing written statement and that the second or further extension may be granted only on an application made in writing setting forth sufficient grounds. It was also pointed out that the expression „any further extension‟ in this proviso does not contemplate unending extensions on the asking and that „any further extension‟ should receive a restricted interpretation. The situation has now changed since the Delhi High Court (Original Side Rules) have also been amended. The amendment which has taken effect on 9.1.2006 is now as under:

"3. Extension of time for filing written statement.-- Where the defendant fails to file written statement within the period of 30 days as stated in Rule 2(ii) he shall be allowed to file the same on such other day as may be specified by the Court on an application made in writing setting forth sufficient ground for such extension and supported, if so required, by an affidavit but such day shall not be later than 90 days from the service of summons."

8. In view of this amendment, the Delhi High Court (Original Side Rules) give the same time schedule for filing a written statement. Written statement, therefore, can be filed within 30 days and thereafter on sufficient ground for such extension being shown on an affidavit but such extension shall not be later than 90 days from the date of service."(emphasis supplied) FAO(OS).47/2020 Page 25 of 29

29. In M/s Print Pak Machinery Ltd. v. Jay Kay Papers Converters , reported as AIR 1979 Del 217, answering a reference placed before it for reconciling the consistency between the scheme of Order 37 of the CPC , as amended in 1976 and the provisions Chapter XV of the Delhi High Court (Original Side) Rules, 1967 that deals with "summary suits", a Full Bench of this court held that the Rules will take a precedence over the Code and observed as under:-

"8. I think, the question is really concluded by Section 129 of the Code. It reads:

"Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code."

No doubt the closing words will not save the Original Side Rules of this Court, as they were not „in force at the commencement‟ of the Code. But, the opening words „Notwithstanding anything in this Code‟ are self-effacing, and subordinate the Code to rules made by a High Court for its original side at any time. The cumulative effect of those two parts of the section is to leave untouched the original rules of a High Court whether framed before or after 1908. Since section 2(1) says that the „"Code" includes rules‟, the original side rules will prevail both over the body of the Code and the First Schedule.

Therefore, the statement in Order 37 rule 1(a) that „This order shall apply to........High Courts‟ must be read subject to section 129.

9. These propositions are old and well-established. In Newab Behram Jung v. Haji Sultan Ali Shustry, ILR 27 Bombay 572 (1) it was held that, in view of section 129, a rule in the Code did not apply as it was inconsistent with a rule in the Bombay High Court Rules. Similarly, in Virupaksha Rao Naidu v. M. Ranganayaki Ammal , AIR 1925 Madras 1132 (2), it was said:

„Section 129 of the Code gives the High Court the power to make rules, regulating the procedure of the Original Side and nothing in the Code will affect such rules. The effect is that if the rules of the High Court, Original Side, and the Code are inconsistent, the rules prevail.‟ Many cases from Calcutta hold the same: Umeshchandra Banerji v. Kunjilal Biswas , AIR 1930 Calcutta 685 (3), Gowal Das Sidany v. Luchmi Chand Jhawar , AIR 1930 Calcutta 324 (4); In re: Ram Dayal De, AIR 1932 Calcutta 1 (5); Shaw & Co. v. B. Shamaldas & Co. , AIR 1954 Calcutta 369 (6) and Manickchand Durgaprasad v. Pratabmull Rameswar , AIR 1961 Calcutta 483 (7). And, so does the High Court of Allahabad: Mool Chand v. Kamta Prasad , AIR 1961 Allahabad 595 (8).

11. The conclusion thus drawn from section 129 can also be reached from section 4(1) of the Code, though not in the manner that was suggested in argument. Section 4(1) of the Code provides that:

„In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.‟ It has been held that rules made by a High Court or the Supreme Court to regulate their procedure and practice are a „special law‟ as they deal with a particular subject: The Union of India v. Ram Kanwar , AIR 1962 SC 247 (11); Punjab FAO(OS).47/2020 Page 27 of 29 Co-operative Bank Ltd., Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. ( in liquidation), AIR 1941 Lahore 257 (12) and The Deities of Sri Audinarayana Swamy and Anjenayaswami Temples of Donepudi v. R. Hanumacharyulu , AIR 1962 AP 245 (13). Nevertheless, the Original Side Rules of Delhi High Court would not be protected by section 4(1) of the Code. Only those „special laws‟ are saved which are „now in force‟, which means 1908. But, they are a „special form of procedure prescribed‟ by or under a law „for the time being in force‟, and would be covered on that account. There is no „specific provision to the contrary‟ and the result is that nothing in the Code „shall be deemed to limit or otherwise affect‟ anything in the Original Side Rules."(emphasis supplied)

30. To answer the last plea taken by Mr. Mehta, learned counsel for the appellants/plaintiffs that a Constitutional Court cannot be denuded of the power to condone the delay in filing the replication even if the power of the High Court to condone delay in relation to periods prescribed in the DHC Rules has been circumscribed, we need not travel beyond Pallav Sheth v.

Custodian, reported as (2001) 7 SCC 549, where the Supreme Court has observed as under:

"31. This Court has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance with law, if any, enacted by the legislature, it would stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously."

31. In view of the aforesaid discussion, it is held that in case of any inconsistency, the provisions of the Delhi High Court (Original Side) Rules, 2018 will prevail over the Civil Procedure Code. The inherent powers contemplated in Rule 16 are not to be exercised to overcome the period of limitation expressly prescribed in Rule 5 for filing the replication. Nor can Rule 5 be circumvented by invoking any other provision or even the inherent powers of the court, contrary to the scheme of the Rules. The phrase, "but not thereafter" used in Rule 5 makes it crystal clear that the Rule is mandatory in nature and the court cannot permit the replication to be taken on the record after the plaintiff has exhausted the maximum prescribed period of 45 days. Any other interpretation will result in causing violence to the DHC Rules.

32. In view of the above, we do not find any infirmity in the impugned order whereby the Chamber Appeal filed by the appellants/plaintiffs was dismissed. The present appeal is accordingly dismissed as meritless, along with the pending applications.

HIMA KOHLI, J.

SUBRAMONIUM PRASAD, J.

OCTOBER 19, 2020 pst/ap/na FAO(OS).47/2020 Page 29 of 29

404 Not found

Stages of Civil Suit Under Civil Procedure Code, 1908

The Civil Suit is basically a dispute which arises between two people or two organizations wherein a subject for dispute is limited to monetary transaction and dispute related to immovable property. The Civil Suit, if it is personal in nature than it is governed under Civil Procedure Code and if it is related to business transaction than Commercial Court Act also plays a great role to set out the procedure. The Parties in the Civil Suit are addressed as Plaintiff and Defendant.

Broadly, a civil suit passes through the following five stages

Institution of a Civil Suit (Plaint, Written Statement, Replication, etc.)
Framing of issues.
Summoning and attendance of witnesses.
Hearing of Suit and Examination of Witness.
Decree/Order and the Judgment.

STAGES OF CIVIL SUIT

There are total 16 stages in a Civil Suit which are mentioned herein below:-

The document in which the fact of the case is mentioned that document is known as Plaint in legal world. The entire Civil Suit is based on Plaint and the Plaint is starting point or the starting stage for all the Civil Suit. Order VII deals with the contents of Plaint and some of the points mentioned under Order VII is mentioned herein below:-

Particulars
Name of the Court
Details of the Party
Facts of the Dispute involved between the party
Relief Sort
Jurisdiction
The Documents on which the party is relying upon.

After a Plaint is filed the Court may either accept the Plaint or they may reject the Plaint if the Plaint is accepted the Court may call the Party i.e. Defendant against whom the dispute is filed and Court calls party by issuing Summon. Defendant to whom the summons is issued may appear in person or through the legal representative. If the Summons are addressed within the jurisdiction of the Court than the same is addressed under Section 27 of the Code and if the Defendant doesn’t reside in the jurisdiction of the Court but the same resides in the same Country than the Summons are addressed under Section 28 of the Code but if the Defendant is residing outside the Country than the Summons are addressed under Section 29 of the Code. The Summons is also addressed when Plaintiff or Defendants want to produce a witness in the Court, the procedure relating for calling for witness is mentioned under Section 31 of the Code. The procedure for the Service of Summons is mentioned under Order V of the Code.

3. Appearance of the Party

The Party to whom summon is addressed needs to be present before the concerned court and if the person failed to appear before the concerned Court than as per Order V rule 20 an Ex-parte order is passed by the Concerned Court. If both parties are not present on the concerned date than the court after giving due chance ay dismiss the matter.

4. Interlocutory Proceeding

Everyone knows that Suit is a Long process as it has many steps before passing Judgment so before starting the stages of Suit sometime the Court has to intervene in the matter to maintain the position as it prevailed. Such Intervention is known as “STATUS QUO”. The Plaintiff can ask for Status Quo order by filing Notice of Motion in the City Civil Court or by filling Interim Application in respective High Court. Following intervention matter are entertain by the Civil Court:-

Temporary Injunction (order 39)
Appointment of Court Receiver (order 40)
Appointment of Court Commissioner(order 26)
Arrest and Attachment before Judgment (order 38)

5. Written Statement

In the simple language Written Statement is a Document in which the Defendant mentions his/her side of facts of the case and mentions his defense to the Plaint. Order VIII of the code deal with Written Statement. Before Amendment in 2002, there was no limitation period for filing the Written Statement but after the amendment, it is mandatory to file Written Statement within 90 days, after the limitation period is expired it is at the discretion of the Court whether to accept the Written Statement. Under this discretion, the Court will give additional days to file Written Statement but those days won’t exceed 90 days.

6. Examination of Party

After the Written Statement is filed the Court may ask the parties whether they admit the allegation or they deny the allegations pressed by the Plaintiff and such acceptance or denial should be recorded.

7. Framing of Issues

The Court after the Suit is filed and after the Written Statement is filed by the Defendant then the Court may ask the parties to produce Draft Issues and after examining the draft issues the Court may frame Final issues. Order XIV of code deal with Framing of Issues.

8. List of Document relied by the Party

After the Framing of Issue, the Court will ask the Parties to submit a List of Documents on which they are relying upon. The parties submit the list in the form of Affidavit.

9. Discovery and Inspection

After the Document is produced in the Court the Party can apply for inspection of Document. Order XI of the code deals with the Discovery and Inspection of documents. After taking leave from the court the parties can Inspect the Document.

10. Admission and Denial of Document

After the Party has ascertained the Document they may either Admit the Document or they may deny the Document. The Admission and Denial of the Documents are dealt under Order XII of the code.

Also Read – What Is Anticipatory Bail? Distinction Between Ordinary Bail And Anticipatory Bail

11. Production of Documents

After the List of Document is relied upon by the Party and after Admission and denial of the Document, the next stage is to produce the Document in the Court. The Party has to submit all original documents in the concerned court. Order XIII of code deals with the production of the Documents.

12. Hearing and Cross Examination of the Witness (Order XVIII)

After the Production of Document, the next stage of a civil suit is hearing of suits and examination of witnesses commence. The first right to begin is of the plaintiff. The plaintiff has to submit the evidence that was earlier marked if any evidence was not marked earlier then it will not be considered by the court. And the defendant’s advocate will cross-examine the plaintiff and also to the witnesses who are from the plaintiff’s side. And the defendant also presents his side of the story supported by his witnesses and evidence from his side and the plaintiff advocate also cross-examined the defendant.

13. Argument

As soon as the stage of the hearing of suits and examination of witnesses is over then the suit is kept for the next stage i.e. argument. Once the evidence has been submitted and cross-examination is conducted by both parties, then both sides are allowed to present a summary of the case and evidence to the judge in the final session.

14. Judgment

After the concerned court has heard the matter the Court will pass Judgment/Decree. The provision related to Judgment and Decree is in Section 33 read with Order XX of the Code.

15. Appeal, Review and Revision

After the Judgment is pronounced and if the concerned party are not satisfied with the Judgment/Decree passed than they can either apply for Review ( Section 114 read with Order XLVII ) within Thirty Days from the date of pronouncement of Judgment/Decree or the aggrieved party can apply for Revision (Section 115) to the higher court within thirty days of pronouncement of Judgment, or the aggrieved party can also go for an Appeal (section 96 to 110 along with Order XLI to XLV) to the Higher Court within 60 or 90 days from the pronouncement of the Judgment/ Decree.

Also Read – What are the differences between Petitions, Plaint & Written Statement?

16. Execution of the Decree

In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or decree or order as the case may be. It is the process by which a decree-holder recovers the fruits of the judgment. The execution is complete when judgment creditor or decree-holder gets money or other thing awarded to him by judgment, decree, or order.

About author –

This article is authored by Urvika Shah Sheth. She is an advocate practicing at Bombay High Court.

Also Read – Procedure of Admission of Plaint under CPC

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CIVIL PROCEDURE BACK TO BASICS 12: THE DIFFERENCE BETWEEN A NON-ADMISSION AND A DENIAL

Some defences adopt a scattergun approach of “denying” everything. some are more selective – they “put the claimant to strict proof”. many defences ignore the important distinction between a non-admission and a denial..

THE DIFFERENCE IN A NUTSHELL

If you “don’t admit” something in a defence you require the claimant to prove it.
If you “deny” something, your case is that you have a positive case to counter the claimant’s assertion.
If you deny something in the defence then you have to state the reasons for the denial.
If you are denying something and putting forward a different version of events then you have to say why.

THE RULES: CPR 16

The rules could not be simpler and clearer on this point. CPR 16.

“16.5 (1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;, (b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and (c) which allegations he admits., (2) w here the defendant denies an allegation –, (a) he must state his reasons for doing so; and, (b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.”, a defendant cannot attempt any half way house: the dil case: an “opaque” defence.

The difference between an admission and denial was explored in detail by Mr Justice Bean in

Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB)

In the Dil case the claimants brought a case alleging that the defendant had acted unlawfully in allowing undercover police officers to enter into sexual relationships with environmental campaigners. The defendant denied the allegations but the defence was uninformative.

THE DEFENCE

The pleaded defence, the defence says very little about what the defendant’s case would be at a trial. it includes the following:-, “3. as the claimants know, the defendant’s policy is neither to confirm nor deny (“ncnd”) allegations concerning undercover police operations., 4. the purpose of the ncnd policy is to protect undercover officers and to uphold the effectiveness of operations and the prevention and detection of crime. the ncnd policy must be adhered to if it is to have its intended protective effects., 5. the defendant adopts and applies that policy in relation to the factual allegations made by the claimants in these proceedings., 6. it is neither confirmed nor denied that the individuals mentioned in paragraph 1 of the particulars of claim were police officers; that (even if they were police officers) they served with the metropolitan police service; that they were part of the special demonstration squad; that they ever used a false identity; or that they took part in any intimate or sexual relationship with any of the claimants., 7. in any event, it is denied that the defendant is liable for the actions complained of for the further reasons set out below.”, the defence then goes on to deal with (or, it might be said, not deal with) the individual cases. in answer to the claims of dil and helen steel there is a detailed plea raising limitation, and in dil’s case an allegation that the defendant is not liable because on her own case dil continued her relationship with “jim sutton” even after he had disclosed his true identity to her in 2001 (a plea which lawyers have traditionally labelled volenti non fit iniuria). with these exceptions, the pleading in the individual cases is entirely opaque. an example is in the case of rab, described as the sixth claimant, where the defence reads:-, “15. as set out above, the sixth claimant’s allegations about “mark cassidy” are neither confirmed nor denied., 16. save as aforesaid, the sixth claimant is required to prove the matters set out at 34-45 of the particulars of claim., 17. for the reasons set out below it is denied in any event that the defendant is liable for the torts of deceit, misfeasance, assault/battery or negligence (or at all).”, the defence goes on to plead that the claimants’ allegations “in so far as they relate to the sds or the alleged actions of alleged undercover officers are neither confirmed nor denied”. as to the causes of action relied on by the claimants: it is denied that the acts alleged constituted the tort of deceit; in respect of the claim in assault or battery it is argued that, if the claimants voluntarily engaged in sexual activity with individuals who had lied about their identities and occupations, consent would not as a matter of law have been vitiated by such alleged deception; and in answer to the claim in negligence the existence of a duty of care is disputed., as to the claim alleging misfeasance in public office, the defence states:-, “29. the allegation that officers of the defendant expressly authorised or tacitly acquiesced in the formation of the sexual relationships alleged by the claimants is neither confirmed nor denied., 30. the claimants are required to prove that officers of the defendant (a) acted unlawfully and (b) acted with malice, or knew that the unlawful acts (or any of them) would probably injure the claimants. the claimants are required to prove, in particular, that:.

30.1 officers foresaw that the Claimants would be damaged by a sexual relationship and/or were recklessly indifferent to the risk of such damage.

30.2 officers knew that it was unlawful for undercover officers to enter into intimate sexual relationships with individuals, and/or were recklessly indifferent as to whether it was unlawful for them to do so.”

CAN A DEFENDANT MERELY BE “UNABLE TO CONFIRM OR DENY”?

For the claimants phillippa kaufmann qc submits that a defendant is only “unable” to confirm or deny the truth of an allegation if he does not know whether it is true or not. i accept that this is by far the most common reason for an inability to plead to an allegation, but i do not consider that the rules should be interpreted in such a literal way. as ms carss-frisk points out, lord woolf’s original proposal was that a defendant should only be permitted neither to admit nor deny an allegation where the reason was because he did not know whether or not it was true; but that restrictive wording does not appear in cpr 16.5(1)., in any event, there must be cases in which a defendant can properly refuse on policy grounds either to admit or to deny a pleaded allegation the truth of which he knows perfectly well. suppose an individual is charged with possession of class a drugs with intent to supply following a police raid on his home. wishing to know the identity of the informant who told the police about his activities, he brings a civil claim against the police and alleges that the informer is his neighbour across the road. the defendant chief constable is able to confirm or deny that allegation but declines to do either, relying on the ncnd principle. he would, on those facts, be entitled to do so.”, but note the very limited public interest limitation., the judge’s observations on the need to plead a full defence, “one of the most important recommendations made by lord woolf in his access to justice report in 1996 was that pleadings should not be technical documents, and in particular that “the defence will set out the defendant’s detailed response to the claim and make clear the real issues between the parties”, the issue in the dil case.

The issue in the Dil case was whether the defendant could merely plead a “cannot deny or confirm” defence to the allegations made. The defendant contended that the public interest in protecting the identity of informers meant that he was entitled to plead the action in an “opaque” manner.

THE DECISION IN THE DIL CASE: THE DEFENDANT MUST PLEAD ITS CASE FULLY IN RELATION TO THOSE OFFICERS WHOSE IDENTITY WAS ALREADY IN THE PUBLIC DOMAIN

“i derive the following guidance from the authorities:, (1) there is a very strong public interest in protecting the anonymity of informers, and similarly of undercover officers (ucos), and thus of permitting them and their superiors neither to confirm nor deny their status; but it is for the court to balance the public interest in the ncnd policy against any other competing public interests which may be applicable (mcnally; mohamed and cf v sshd) ., (2) there is a well-established exception in a criminal trial where revealing the identity of the informer or the uco is necessary to avoid a miscarriage of justice ( marks v beyfus; r v agar) : this does not arise in the present case., (3) even where an individual informant or uco has self-disclosed, the police (or the secretary of state) may nevertheless be permitted to rely on ncnd in respect of allegations in the case where to admit or deny them might endanger other people, hamper police investigations, assist criminals, or reveal police operational methods. ( savage; carnduff )., i will deal first with the general allegation and then with the specific ones. the general allegation is that officers of the mps, as part of their work as undercover officers and using false identities, engaged in long term intimate sexual relationships with those whose activities the mps wished to observe; and (although it will no doubt be a matter for legal argument at trial how significant this issue is) that this was authorised or acquiesced in by senior management., i do not accept that there is now, in 2014, any legitimate public interest entitling the commissioner to maintain the stance of ncnd in respect of this general allegation. the claims relate to alleged activities of officers of the sds prior to its disbandment in 2008. it is not suggested that the use of long term sexual relationships of this kind as a police tactic is continuing. it is also not argued that it would be appropriate now, nor that (if it did occur) it was appropriate then. the chief constable conducting the operation herne investigation has expressed in trenchant terms the view that if this did happen it was a “gross abuse”: i believe that most people would agree with him. whether the facts set out by the claimants, if proved, establish one or more of the pleaded causes of action as a matter of law is of course a different issue, and a matter for argument at the trial., one of the justifications for ncnd is that police operational methods should not be revealed. this is in my view clearly intended to apply to operational methods which continue to be in use or are likely to be used in future. moreover, just as (in the well-known words of page wood v-c in gartside v outram (1856) 26 l.j.ch 113) “there is no confidence as to the disclosure of iniquity”, so there can be no public policy reason to permit the police neither to confirm nor deny whether an illegitimate or arguably illegitimate operational method has been used as a tactic in the past., i therefore rule that the defendant cannot rely on ncnd to avoid answering the general allegation to which i have referred above.., i turn to the specific allegations that the individual men with whom the claimants had relationships were undercover officers. all have been publicly named in the media. some have also self-disclosed; some have been the subject of official confirmation. self-disclosure is relevant, but it does not have the same significance as official confirmation by the police force concerned, hmic, a minister or a court. mr creedon, in commenting on the self-disclosure by peter francis, declined to confirm or deny whether he had ever been an undercover police officer. he wrote:, “to avoid placing any individual in danger, this [ncnd] principle is paramount. to comment either way would raise clear inferences in other cases where no comment can be made. this position is essential to ensure that danger and additional risk can be avoided.”, “jim sutton” has been publicly named as an uco by the commissioner in person. (commander martin evidently regards this as a mistake, but he is not the defendant in this claim.) in the two cases involving him, reliance on the ncnd policy to avoid admitting that he was an uco is simply unsustainable., in the case of “bob robinson” i also consider that ncnd can no longer be relied on. he has not only self-disclosed (using his real name of bob lambert), but has been publicly named by the ipcc as a former mps officer; and he is no longer in the police service., however, in the cases of “mark cassidy” and “john barker” i take a different view. neither of them has self-disclosed nor been officially named as an undercover officer, although each has been named publicly in a variety of media (with a photograph of each man in the guardian ). in those circumstances i consider that the commissioner should not be required to admit or deny whether either of them is an undercover officer or has the real name alleged. this may only postpone the day of reckoning, in the sense that if the case proceeds and no evidence is adduced to challenge that put forward by rab and helen steel respectively, it appears likely that the respective factual cases put forward by them will be accepted. as i have already noted, the consequences of that in law would be a matter for argument in due course., in accordance with the procedure envisaged in the order of tugendhat j, the commissioner will have 28 days from the handing down of this judgment in which to amend his defence in order either to admit or deny that: (a) officers of the mps, as part of their work as undercover officers and using false identities, engaged in long term intimate sexual relationships with those whose activities the mps wished to observe; (b) this was authorised or acquiesced in by senior management; (c) “jim sutton” was such an officer; and (d) “bob robinson” was such an officer. the time for disclosure of documents, which was to have expired on the second day of the hearing before me, will be extended until 56 days from the handing down of judgment.”, the consequence of failing to file a fully particularised defence, the judge rejected an argument that a failure to fully plead the case should lead to the defence being struck out. rather, if the defendant failed to plead a fully particularised case within the time specified he was to be taken to admit them., share this:.

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Bombay high court, pre admission meaning in high court, stages of writ petition in high court, pre admission meaning in court, for circulation meaning high court, pre admission meaning in hindi, high on board meaning in court, pre admission meaning in high court in hindi.

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Recovering attorney fees through requests for admissions

Motions for cost-of-proof sanctions are challenging because section 2033.420 includes multiple hurdles and defenses.

The purpose of requests for admissions (“requests”) is to eliminate undisputed factual issues in order to expedite trials and reduce litigation costs. To ensure their effectiveness, California Code of Civil Procedure section 2033.420 authorizes cost-of-proof sanctions against those who unreasonably refuse to admit undisputed facts. Through motions for cost-of-proof sanctions, parties can recover the fees and costs incurred in proving matters that were unreasonably denied.

Motions for cost-of-proof sanctions are challenging as a consequence of the numerous requirements and defenses built into section 2033.420. This article provides suggestions for meeting these requirements and preparing successful motions for cost-of-proof sanctions.

Preparation of requests for admission

Preparing for a successful motion for cost-of-proof sanctions begins with proper requests for admissions and a supporting trial plan. Each request for admission must address a matter of substantial importance because one defense to a motion for cost-of-proof sanctions is that the admissions sought were of no substantial importance. (Code of Civ. Proc., § 2033.420, subd. (b)(2).) Generally, plaintiffs should prepare requests for admissions that address elements of causes of action. When motions for summary judgment are planned, requests for admissions can address the important separate statements of undisputed material facts. The supporting trial plan should specify how the matter in each request for admission (element) will be proved.

Requests for admissions intended to support motions for cost-of-proof sanctions cannot be objectionable because objectionable requests provide another defense to motions for cost-of-proof sanctions. (See Code of Civ. Proc., § 2033.420, subd. (b)(1).) Therefore, the safest course is to write requests that are simple and direct and address historical facts. However, requests for admissions can address conclusions of fact (ultimate facts). (See , e.g., Campbell v. Spectrum Automation Co. (6th Cir. 1979) 601 F.2d 246, 253 [“That a request seeks admissions on ‘ultimate facts,’ or is dispositive of the entire case, is irrelevant.”].) Requests for admissions addressing a single element are not objectionable as calling for a legal conclusion because the admission of a single element does not establish legal liability. (See, e.g., Samsky v. State Farm Mut. Auto. Ins. Co. (2019) 37 Cal.App.5th 517, 521; Grace v. Mansourian (2015) 240 Cal.App.4th 523, 526 [approving requests that defendants admit negligence and causation]; Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 733-735 [same].)

Requests may require an expert opinion. (See, e.g., Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 751.) Requests for admissions are not limited to matters within the personal knowledge of the responding party, but must be answerable based on information that can be obtained through reasonable inquiry. (See, e.g., Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634.)

Requests should not address the personal feelings (such as pain and suffering), intentions, or motivations of the requesting party because such matters are solely within the knowledge of the requesting party. Requests should not ask the responding party to admit every paragraph in a complaint or that responding party has no evidence. (See, e.g., Perez v. Miami-Dade County (11th Cir. 2002) 297 F.3d 1255, 1269; Berkman v. City of Morgan Hill (Cal.Ct.App., Sept. 28, 2010, No. H032205) 2010 WL 3759799, at *6-7.)

Since cost-of-proof sanctions are recoverable only for the period after requests for admissions are denied, requests should be propounded as soon as possible. Requests should be served concurrently with Judicial Council Form Interrogatory 17.1, which asks responding party to identify the facts, witnesses, and documents supporting each denial of a request for admission. A failure to identify facts, witnesses, and documents shows there was no reasonable grounds for denying requests for admissions.

Motions to compel further responses

Section 2033.420, subdivision (b)(2) provides an exception to the mandatory duty of the courts to award cost-of-proof sanctions when the requirements of section 2033.420, subdivision (a) are satisfied. Section 2033.420, subdivision (b)(2) states: “An objection to the request was sustained or a response to it was waived under Section 2033.290.” The first portion of the exception is never used because the procedure of responding party filing its objections with the court and obtaining a hearing thereon was eliminated with the revision of section 2033 in 1961.

Courts, beginning with Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, have interpreted the second (waiver) portion of section 2033.420, subdivision (b)(2) as requiring a motion to compel further responses whenever a response is something other than an unqualified denial. (See Wimberly , 56 Cal.App.4th at 636; but see American Federation of State, County and Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 268-269 [no motion to compel further responses is required when objections are coupled with unqualified denials].) In other words, parties waive the right to cost-of-proof sanctions if the requirements of section 2033.290, subdivision (a)(1) or (a)(2) are satisfied and the response to a request for admission is something other than an unqualified denial. Thus, motions to compel further responses are an absolute prerequisite to a successful motion for cost-of-proof sanctions when responses to requests for admissions couple objections with qualified denials or are evasive or incomplete. (See Code of Civ. Proc., § 2033.290, subd. (a).)

Courts have found responses asserting insufficient information to be “incomplete” within the meaning of section 2033.290, subdivision (a)(1), thus requiring a motion to compel further responses. (See, e.g., Magco Drilling, Inc. v. Natoma Family Housing, L.P. (Cal.Ct.App., Jan. 29, 2018, No. A151586) 2018 WL 579772, at *4; Estate of Silveira (Cal.Ct.App., Aug. 31, 2015, Nos. A141310, A141421) 2015 WL 5099279, at *5.) Likewise, the response, “unable to admit or deny,” is “evasive” within the meaning of section 2033.290, subdivision (a)(1) and requires a motion to compel further responses. (See, e.g., Choi v. Chan (Cal.Ct.App., Aug. 22, 2003, Nos. A098614, A100667) 2003 WL 21995592, at *8.)

In Estate of Silveira (Cal.Ct.App., Aug. 31, 2015, Nos. A141310, A141421) 2015 WL 5099279, the Court of Appeal denied a motion for cost-of-proof sanctions because the estate failed to move twice to compel further responses to its requests for admissions. Petitioner’s original responses consisted of objections. The estate moved to compel further responses and the motion was granted. In amended responses, “petitioner claimed that having made reasonable inquiry, based on the information presently known or obtainable, she was unable to admit the matters contained in the relevant requests.” ( Id. at *4.) The estate moved for cost-of-proof sanctions. The trial court ruled that the estate waived its right to cost-of-proof sanctions because it failed to move a second time for further responses and the Court of Appeal affirmed. ( Id. at *5.)

This requirement of filing multiple motions to compel further responses is completely inconsistent with the “‘central precept’ of the Civil Discovery Act of 1986 that discovery ‘be essentially self-executing.’” ( Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434.) Until the waiver provision of 2033.420(b)(1) is removed, parties anticipating motions for cost-of-proof sanctions must continue to file motions to compel further responses until no further motions are authorized by section 2033.290, subdivision (a). Since judges do not welcome multiple motions to compel further responses addressing the same requests for admissions, parties should make clear in their motions to compel further responses that the motions are required by section 2033.420, subdivision (b)(1) and Wimberly v. Derby Cycle Corp .

Preparing required fee and cost documentation

Parties moving for cost-of-proof sanctions are required to identify the attorney fees and costs incurred in proving the matters that responding party unreasonably denied. (See In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 807-808; Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529.) For example, in a negligence case in which defendant denied a request to admit negligence, a plaintiff moving for cost-of-proof sanctions is required to identify the fees and costs incurred in proving that defendant was negligent. Doing this after trial is difficult if attorney time and cost records are not annotated with the requests for admissions or the factual and legal matters to which the attorney hours and costs were directed. Therefore, once a party’s requests for admissions are denied, counsel should begin to annotate fee and cost records.

Trial practice

On a motion for cost-of-proof sanctions, the moving party must show that the matters in requests for admissions were proved and the specific fees and costs incurred in proving those matters. (See Code. of Civ. Proc., § 2033.420, subd. (a); In re Tobacco Cases II , 240 Cal.App.4th at 807-808; Grace , 240 Cal.App.4th at 529.) A good trial plan shows the evidence that will be used to prove each element of each cause of action. If requests for admissions are written to correspond to each element of each cause of action, then the trial plan also shows the evidence used to prove the matters in requests for admissions that are denied. Constructing such a trial plan is a necessary step to a successful motion for cost-of-proof sanctions.

A general verdict for plaintiff establishes all the elements of a cause of action and proves the truth of the matters in requests for admissions that correspond to the elements. However, general verdicts, and even special verdicts, do not necessarily prove all the matters in requests for admissions. (See, e.g., Conser v. Board of Trustees (Cal.Ct.App., Nov. 20, 2008, No. A111205) 2008 WL 4950975, at *11 [plaintiff did not seek any special verdict form or jury interrogatory that would have shown whether the jury believed her evidence on the matters of the requests for admissions]; Holly B. v. Glitch (Cal.Ct.App., Oct. 27, 2006, No. D047762) 2006 WL 3041890, at *5 [special verdict form did not ask the jury to determine whether defendant slapped plaintiff, but only to determine whether he committed an assault or battery].) Thus, when jury trials are used, parties anticipating post-trial motions for cost-of-proof sanctions must prepare special verdict forms or jury interrogatories to establish the truth of other matters (outside the elements of the causes of action) in denied requests for admissions. When bench trials are used, parties anticipating motions for cost-of-proof sanctions must submit proposed statements of decision that establish the specific matters in denied requests for admissions.

The motion for cost-of-proof sanctions

Section 2033.420, subdivision (a) requires that parties moving for cost-of-proof sanctions show that a request for admission was made, the matter in the request is true, responding party failed to admit the request, and the reasonable fees and costs incurred in proving that matter . (See Code. of Civ. Proc., § 2033.420, subd. (a).) Specifically, moving papers should list each request that was not admitted, the response, the evidence used to prove the truth of the matter in the request, the work and time required to assemble that evidence, and the fees and costs incurred as a proximate result of the failure to admit the request. There is no need to show that moving party was the prevailing party in the action because non-prevailing parties can obtain cost-of-proof sanctions. (See Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509, fn. 5.)

The truth of matters in requests for admissions can be proved with general verdicts, special verdicts, statements of decision, jury interrogatories, motions for summary judgment. If separate statements in motions for summary judgments are supported with evidence and are undisputed, then the matters in the separate statements are proved. (See, e.g., Sparks v. Reneau Publishing Inc. (E.D. Tex. 2007) 245 F.R.D. 583, 587-588.)

Moving parties must point to specific evidence that proved the matters in each request for admission for which cost-of-proof sanctions are sought. (See, e.g., Eng v. Brown (Cal.Ct.App., Mar. 21, 2019, No. D072980) 2019 WL 1287896, at *7 [“Defendants did not provide the trial court with trial transcripts, trial exhibits, or even references to testimony or documents that might have established what evidence was presented at trial that proved any specific matter that Plaintiff had denied.”].) This is necessary so that the specific fees and costs incurred in presenting that evidence and proving the matter of the request for admission can be determined.

Courts have imposed the additional requirement that moving parties show that a failure to admit a particular request for admission has caused certain costs of proof. (See Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736-737 [“[T]he statute authorizes only those expenses ‘incurred in making that proof,’ i.e., proving the matters denied by the opposing party.”].) For example, no causal connection exists if moving party proved the matter in a request with evidence it would have offered regardless of the denial. (See, e.g., Grotenhuis v. Golden Gate Bridge (Cal.Ct.App., June 15, 2018, No. A151781) 2018 WL 2998892, at *4; Villanueva Paramour v. Ruan (Cal.Ct.App., Nov. 30, 2004, No. A104958) 2004 WL 2713357, at *4.)

Courts have also imposed on moving parties the requirement of submitting an affidavit setting out in detail the hours, fees, and costs incurred in proving each denied fact. ( In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 807-808; Grace , 240 Cal.App.4th at 529.) This can be done by annotating attorney-time records with the requests for admissions or the factual and legal matters to which the attorney hours were directed. (See, e.g., Orange County Water Dist. v. Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 113 [“[A]ttorney invoices included descriptions and a list of applicable RFAs for each time entry.”].) Courts need this information so that if a motion is denied as to one request for admission, the court can determine the associated fees and costs to strike.

Exception 1

Section 2033.420, subdivision (b) states that courts must award cost-of-proof sanctions if the requirements of section 2033.420, subdivision (a) are met unless the court finds one of the exceptions in section 2033.420, subdivision (b). The burden of establishing an exception is on the party opposing the motion for sanctions. (See Samsky v. State Farm Mut. Auto. Ins. Co. (2019) 37 Cal.App.5th 517, 523-524.) Although motions for cost-of-proof sanctions need not address the exceptions, moving parties can make it more difficult for opposing parties to establish the exceptions (and to defeat motions for cost-of-proof sanctions).

For instance, the first exception given in section 2033.420, subdivision (b)(1) is that “[a]n objection to the request was sustained or a response to it was waived under Section 2033.290.” Failure to assert objections in the original responses to requests for admissions waives the section 2033.420, subdivision (b)(1) defense. (See, e.g., Zoura v. Burns & Sons Trucking, Inc. (Cal.Ct.App., Nov. 17, 2014, No. D063469) 2014 WL 6237871, at *7.) Exception 1 can be avoided by writing requests for admissions that are simple and direct and address historical facts. If responses include objections coupled with equivocal denials, or responses are evasive or incomplete, motions to compel further responses must be filed to avoid waiving the right to cost-of-proof sanctions. ( Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 636.)

Exception 2

The second exception given in section 2033.420, subdivision (b)(2) is that “[t]he admission sought was of no substantial importance.” A request for admission has substantial importance when it has some direct relationship to one of the central issues in the case – an issue which, if not proven, would have altered the results of the case. (See Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.) Exception 2 can be avoided by writing requests that address elements of causes of action.

There is some overlap between the second exception and the requirement of proving a causal relationship between the denial of a request for admission and the claimed fees and costs. For example, a request for admission has no substantial importance if an admission would not have shortened the trial. (See, e.g., Vogel v. American Amateur Baseball Congress (Cal.Ct.App., Sept. 21, 2005, Nos. A105405, A106473) 2005 WL 2304485, at *10.) There is no substantial importance if the time and expense in making the proof was trivial. ( Ibid. )

Exception 3

To establish the third exception given in section 2033.420, subdivision (b)(3), the party failing to make an admission must show that it had reasonable ground to believe that it would prevail on the subject matter of the request for admission. “Whether a party has a reasonable ground to believe he or she will prevail necessarily requires consideration of all the evidence, both for and against the party’s position, known or reasonably available to the party at the time the RFA responses are served.” ( Orange County Water Dist. v. Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 118.)

No reasonable grounds exist when the responding party made no reasonable investigation before responding to a request for admission or when responding party had access to information showing the request should be admitted. (See, e.g., Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 752; Brooks , 179 Cal.App.3d at 512 [denial was unreasonable because plaintiff had access to CHP report concluding that his truck was over the centerline].) Hence, one way to defeat the 2033.420(b)(3) defense is to disclose to responding party, before responses to requests for admission are served, evidence showing that the matters in the requests for admissions are true. (See, e.g., Doe v. Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 691 [County provided plaintiff logs showing visitation dates]; In re Estate of Chuang (Cal.Ct.App., Oct. 28, 2010, No. A126945) 2010 WL 4253632, at *4 [respondent provided evidence of decedent’s mental capacity before petitioner responded to second set of requests].)

No reasonable grounds exist to deny a request for admission when responding party’s responses to concurrently served interrogatories state no facts supporting the asserted ground for denial. (See, e.g., Cadle Co. II, Inc. v. Bell (Cal.Ct.App., Aug. 11, 2011, No. A128685) 2011 WL 3525438, at *1.) Hence, propounding parties should always serve Judicial Council Form Interrogatory No. 17.1 with requests for admissions.

No reasonable grounds exist when responding party failed to dispute the matter in opposition to a motion for summary judgment, presents no evidence at trial supporting its denial, or concedes the matter at trial. (See, e.g., Nicolosi Distributing, Inc. v. Annex Santa Clara, Inc. (Cal.Ct.App., Oct. 13, 2016, No. A144736) 2016 WL 5940900, at *8 [plaintiff did not dispute the two requests for admission on summary judgment]; In re Estate of Trevillian (Cal.Ct.App., Jan. 22, 2008, Nos. B187871, B188103) 2008 WL 175933, at *14 [appellants conceded issue at trial].) Finally, no reasonable ground exists when the party opposing a motion for cost-of-proof sanctions cannot point to any evidence supporting its denial. (See, e.g., Estate of Khatri (Cal.Ct.App., Apr. 28, 2020, No. A150546) 2020 WL 2060343, at *11.)

Exception 4

The fourth exception available to oppose motions for cost-of-proof sanctions given in section 2033.420, subdivision (b)(4) is to show “other good reason” for the failure to admit a request for admission. This is a catch-all provision allowing courts significant discretion to deny motions for cost-of-proof sanctions. (See, e.g., St. John-Parisian v. Foster Poultry Farms, Inc. (Cal.Ct.App., Aug. 31, 2011, No. B221595) 2011 WL 3840524, at *11 [defendant had “good reason” to deny because to have admitted the RFAs would have conceded liability – the crux of the case].)

Most of the “other good reasons” address the form of the request for admission or the information required to respond and, therefore, can be avoided through preparation of proper requests for admissions. For example, good reason exists when the request syntax is overly complicated, confusing, or compound. (See, e.g., Apex Wholesale, Inc. v. Fry’s Electronics, Inc . (Cal.Ct.App., June 15, 2006, No. D041383) 2006 WL 1644687, at *27.) Good reason exists when a request asks one to admit liability or admit a legal conclusion. (See, e.g., Susan B. v. Los Angeles Unified School Dist. (Cal.Ct.App., Mar. 29, 2006, No. B176830) 2006 WL 826089, at *5.) Since objections not asserted in original responses are waived, the fact that a request for admission is objectionable cannot serve as “other good reason” to deny a motion for cost-of-proof sanctions when the original response did not include the objection. (See, e.g., McGrath v. Botsford (Ill.App.Ct. 2010) 938 N.E.2d 589, 598.)

Good reason exists to deny a request for admission when one does not have, and could not obtain by reasonable inquiry, information on whether the matter in the request is true. For example, good reason exists when the matter of the request is solely within the knowledge of the requesting party. (See, e.g., Burke v. Goodfriend (Cal.Ct.App., Apr. 15, 2003, No. B157704) 2003 WL 1875782, at *3 [plaintiff was the only witness to the incident].) Good reason exists to deny a request that addresses the personal feelings (e.g., pain and suffering), intentions, or motivations of the requesting party. (See, e.g., Law Offices of Bruce E. Krell, Inc. (Cal.Ct.App., Dec. 14, 2007, Nos. A116666, A116674, A116812) 2007 WL 4358483, at *7 [“[N]o reasonable investigation could reveal the inner motivations of another party.”].)

Other defenses to motions for cost-of-proof sanctions

In addition to showing one or more of the four exceptions, motions for cost-of-proof sanctions can be opposed by showing that moving party did not prove the truth of the matters in the requests (see, e.g., Eng v. Brown (Cal.Ct.App., Mar. 21, 2019, No. D072980) 2019 WL 1287896, at *7 [“Defendant did not provide the trial court with trial transcripts, trial exhibits, or even references to testimony or documents that might have established what evidence was presented at trial that proved any specific matter that Plaintiff had denied.”]), moving party filed no motion to compel further responses when responses coupled objections with qualified denials or are evasive or incomplete, there is no causal relation between the failure to admit and the evidence moving party was required to offer (see, e.g., Harmon v. Safeway, Inc. (Cal.Ct.App., June 17, 2014, No. A134891) 2014 WL 2738665, at *7 [plaintiff made no showing that he would not have incurred his expenses but for defendant’s failure to admit requests for admissions]), moving party failed to pinpoint the expenses it incurred in proving the matter denied (see, e.g., Downey Real Estate Holding, LLC v. Los Angeles County Metropolitan Transportation Authority (Cal.Ct.App., June 9, 2015, No. B244647) 2015 WL 3613241, at *12), moving party’s affidavit of hours, fees, and costs is inadequate (see, e.g., In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 807-808.), or moving party’s fees are unreasonable.

Conclusions

Motions for cost-of-proof sanctions are challenging because section 2033.420 includes multiple hurdles and defenses and substantial documentation and evidence is required. On the other hand, such motions can be successful when included in litigation strategy from the very beginning of the discovery process. Requests for admissions must address matters of substantial importance and be simple and direct. To establish that a failure to admit a particular request for admission caused certain fees and costs, attorney-fee and expense statements must be annotated with the factual matters (or RFA numbers) to which the attorney hours and expense statements were directed. Successful motions can be financially rewarding. (See, e.g., Estate of Khatri (Cal.Ct.App., Apr. 28, 2020, No. A150546) 2020 WL 2060343, at *13 [fees of $865,599.25 and costs of $138,621.65 awarded].) Successful motions also assist the profession and the courts in ensuring the effectiveness of requests for admission (which, in turn, expedite trials and reduce litigation costs) by sanctioning the unreasonable refusals to admit undisputed facts.

Blair J. Berkley

Blair J. Berkley is a professor at California State University, Los Angeles. He is a graduate of the U.C.L.A. Law School and has practiced civil litigation since 2002. He specializes in law and motion, class actions, and civil rights. He can be reached at [email protected].

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May 19, 2020
47 min read

JUDGMENT ON ADMISSION - A forgotten Rule

Updated: Jun 7, 2021

- Dhanaram Ramachandran and Devi R, Advocates

1. INTRODUCTION

Judgment on Admission verbatim is dealt under Order XII Rule 6 of Civil Procedure Code, 1908. As simple as it may seem, it is imminent to understand, what is admission, what constitutes valid admission, where must such admission be made and under what circumstances such a Judgment under this provision can be passed. The intent of this Article is to deal with the above conundrum. There is no doubt that admission is a common law principle. The primary object of this Rule is to enable a party obtain speedy judgment where such admission. The nuance lies in beneficial interpretation of this rule considering the facts and circumstances of each case to enable speedy justice while remaining cautious not to snatch the right of fair defense.

Order XII Rule 6, CPC

Judgment on admissions

(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”

2. DISSECTION OF THE RULE

The Rule when dissected has the following salient concepts;

a. Admission,

b. In pleading or otherwise,

c. Oral or in Writing,

d. Court May,

e. Any stage of the suit,

f. Either by Application of party or of its own motion,

g. Without waiting for determination of any other question;

h. Make order/judgment as it may think fit,

i. Decree shall be drawn up;

2.1. ADMISSION:

2.1.1. The term Admission has not been defined in the Code of Civil Procedure. Hence it is necessary to borrow the definition from Evidence Act, 1872;

“Sec.17 – Admission Defined

An admission is a statement,1[oral or documentary or contained in electronic form ], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.”

2.1.2. Black’s Law Dictionary defines Admission as “Any statement or assertion made by a party to a case and offered against that party; an acknowledgement that facts are true. Admission against interest as – A person’s statement acknowledging a fact that is harmful to the person’s position as a litigant. An admission against interest must be made either by the litigant or by one in privity with or occupying the same legal position as the litigant.”

2.1.3. Admission is the unassailable requirement to attract the operation of Order XII Rule 6 CPC. Admission can be of several types, and the types of admission shall be dealt later in this Article. The an admission to qualify as valid admission should be Unequivocal, Unambiguous, Unconditional, should be made with intend to be bound by it, should be a valid admission independently without having to be proved by adducing evidence and should entitle the other party to succeed [1] .

2.1.4. There is no hard and fast rule on what constitutes admission as it is highly dependent on the facts of each case. A statement made can be admission in one case and not in another. Admission necessarily means a statement made, either in pleadings or otherwise to conclusively determine an issue made by a party intending to be bound by it.

2.1.5. There are several methods to secure admission;

a. Under Order XII CPC:

A party to the suit can issue a notice to admit truth of the case (Rule 1) or to admit documents (Rule 2) or to admit specific facts (Rule 4) to the other party or the court can under Rule 3-A require a party to admit or deny a document. When a party is put on notice to admit either the facts or the documents, the party shall either admit or deny them. When no specific denial is made by the party to such documents, the documents are deemed to be admitted under Rule 2-A. However court has power to require documents so admitted to be proved independent of such admission.

" Order XII Rule 2A. Document to be deemed to be admitted if not denied after service of notice to admit documents

(1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall he deemed to be admitted except as against a person under a disability :

Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.

(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation."

b. Under Order VIII CPC:

In the written statement, the defendant shall specifically deny the allegations of facts in the plaint otherwise such allegation in plaint shall be deemed to be admitted. In the event where written statement is not filed at all, the court may pass a judgment based on the plaint facts. Under these circumstances the court power to require facts so admitted to be proved independent of such admission.

Order VIII Rule 5 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.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

For the purpose of these provisions in my opinion person under disability would be as defined under Sec. 6 of Limitation Act.

Further the denial or dispute should be clear and sufficient to disprove the admission. For instance, if A filed an agreement between A and B where B agreed to pay INR. X to A. B need to raise a dispute and denial bearing substance sufficient to dispute admission. B can allege that the document is forged or the document forms part of some other transaction or that the document should be read with a series of documents on the same dispute. B cannot plainly mention a vague arrangement to make the admission bad in the eyes of law.

In M.M. Chhabra & Sons (Huf) v. M/s. Colour Plus Fashions Limited 2010 SCC Online Del 2502 which is out of a suit for recovery of possession upon termination of tenancy by efflux of time. The lease was valid for five years and upon expiry, by option, it can be extended for another 4 years. The plaintiff averred that the defendant failed to exercise this option and the defendant alleged that the Plaintiff is receiving rent without any objection after expiry and thus the lease is deemed as renewed. The defendant contended that the question of whether lease is extended by accepting rent is a question of fact and that cannot be decided under Order XII Rule 6 CPC. However, the court held, necessary admissions are gathered from the pleadings, ie., landlord-tenant relationship, lease deed, expiry of lease, etc., and allowed the application under Order XII Rule 6 CPC. The Court also held that mere dispute and mention of vague arrangement are insufficient to dispute an admission.

Similarly in Delhi Jal Board v. Surendra P. Malik ILR (2003) I Delhi 269, the respondent is the plaintiff in the suit for recovery of possession, upon termination of tenancy by efflux of time. Upon completion of pleadings, an application under Order XII Rule 6 CPC was filed by the respondent. The Appellant contested the application by claiming that dispensation of notice under Sec. 106 of Transfer of Property Act is a question of fact which needed to be decided by trial. In this case, interestingly, the court propounded that ‘constructive admissions’ are valid and they need not be specifically or expressly made. However constructive admissions can be determined only coupled with the facts of each case. The trial court allowed to application for judgment on admission and on appeal the Delhi HC upheld the judgment. The test proposed to test admission is (i) whether admission of fact is made, (ii) is the admission plain, unequivocal and unambiguous, (iii) whether the defence setup requires evidence (iv) whether the objections go to the root of the matter or is inconsequential. The Court held there is no relatable proof of existing or renewed tenancy to go into the question of Sec. 106 TP Act notice. Application for judgment on admission allowed.

“8. The provision confers almost sweeping powers on the Court to render a speedy judgment in the suit to save the parties from going through the rigmarole of a protracted trial. The only pre-requisite for this is that there must be admissions of fact arising in the suit, be that in the pleadings or otherwise or orally or in writing. Such admission of facts must be clear and unequivocal, unconditional and unambiguous and may relate to the whole claim or a part of it. These need not be made specifically or expressly and could be a constructive admissions also. Whether or not such admission arose in the suit would depend on the facts and circumstances of the case. If it involved disputed facts, claims and counter claims requiring evidence of parties for determination of issues or where the defense of a party touched the root of the matter, a judgment could not be passed under Order 12 Rule 6 dispensing with the trial because the valuable right of going to trial could not be taken away from the party unless the claim was admitted. A duty was, Therefore, cast on the court to ascertain the admission of facts and to render judgment on these either in respect of the whole claim or a part of it.

9. The test, Therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment.

12. It is no longer a grey area that where a tenancy had otherwise expired by efflux of time but the tenant continued in possession of the premises, mere acceptance of rent by the landlord could neither renew the tenancy nor create a new one. That is so because such subsequent occupation of premises was not in pursuance of any contract, express or implied between the parties”

- B.A. Khan, J.

c. Under Evidence Act:

Sections 18, 20 and 23 of the Evidence Act regarding admission in the context of this Article although Sec. 17 through 23 deals with admission. Section 18 days that admission by party to proceedings or his agent shall be admission. Section 20 reaffirms that any statement by parties to the suit is admission. Interestingly, Sec. 23 stipulates the circumstances under which admission in civil cases are relevant. When parties expressly agree that such statement made is cannot be given as evidence, such admission is irrelevant. In my opinion, admissions made, without prejudice, admissions made in the course of negotiations for compromise when expressly agreed between parties not be given as evidence, shall not be considered as admission.

Lord Mansfield has observed that all men must be permitted to buy their peace without prejudice to them should the offer not succeed, such offers being made to stop litigation, without regard to the question whether anything is due or not. If, therefore, the defendant, on being sued for £ 100, should offer the plaintiff £ 20, and at the same time state that such offer was "without prejudice" this is not admissible in evidence, for it is irrelevant to the issue. It neither admits nor ascertains any debt, and is no more than saying that he would give £ 20 to be rid of the action

Section 23 of Evidence Act --- Admission in Civil case, when relevant - In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.

In my opinion, by the limitation of Sec. 23, any evidence which prima facie was agreed not be made part of evidence cannot be relied upon as admission. However such agreement between parties needs to be express.

2.1.6. In Karam Kapahi and Others v. Lal Chand Public Charitable Trust (2010) 4 SCC 753, which in my opinion is a comprehensive precedent on Order XII Rule 6 CPC, The respondent trust, is the plaintiff in the suit for recovery of possession on the ground of termination of lease in favour of the South Delhi Club (Appellant is a member of the club) and for damages and mesne profit. After demand notice by the Trust, the Club filed a suit against the Trust seeking declaration that the Trust has no right, title or interest in suit premises and with a further prayer of restraining the trust from collecting rent. The suit of the Club was dismissed for default for non-prosecution. In the suit of the trust, the Club filed a written statement admitting existence of lease deed but disputed the title and right of the trust. Further club filed an I.A. for restraining the trust from collecting rent but the same was dismissed by relying on Sec. 116 of Evidence Act as the Club is estopped from disputing the title of Trust and was directed to remit the rental due. Subsequently the Club filed an application under Sec. 114 of Transfer of Property Act seeking relief against forfeiture for non-payment of rent by agreeing to remit the rent to the Trust. The Trust filed an application under Order 12 Rule 6 CPC to consider the plea in the application of the Club under 114 of TP Act. Both applications were heard together and judgment on admission was passed as the application of the Club contains admission as to, (i) relationship of lessor and lessee, (ii) notice of termination of lease served on the Club, (iii) non-payment of rent by the Club. The Hon’ble SC hearing the SLP arising out of the litigation initiated by the members as well as the Club, together, held that the content of the application under Sec 114 of TP act can be considered under the term ‘otherwise’ in the Order XII Rule 6 CPC and in the application there is clear admission of relevant facts which entitles the Trust to succeed. The Hon’ble Court also specially referred to Scots Law term “approbate and reprobate” where by doctrine of election, the party cannot chose both to accept and reject the same instrument. The club in its suit challenged the title of the Trust and pleaded the contrary in its Sec. 114 Application. The judgment on admission by the Trial Court, upheld.

“37.The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about 'which there is no controversy' [See the dictum of Lord Jessel, the Master of Rolls, in Thorp v. Holdsworth in (1876) 3 CD 637 at 640].

38.In this connection, it may be noted that order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:

“6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just.”

39. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it 'ex debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment.

40. If the provision of order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider in as much as the provision of order 12 Rule 1 is limited to admission by 'pleading or otherwise in writing' but in Order 12 Rule 6 the expression 'or otherwise' is much wider in view of the words used therein namely: 'admission of fact...either in the pleading or otherwise, whether orally or in writing'.

41. Keeping the width of this provision in mind this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan (Smt.) and Anr. (2005) 11 SCC 279 at page 285 (para 8) ]. Admissions in answer to interrogatories are also covered under this Rule [See Mullas's commentary on the Code, 16th Edition, Volume II, page 2177].

45. Order 12 Rule 6 of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of Madhya Pradesh High Court in the case of Shikharchand and Ors. v. Mst. Bari Bai and Ors. reported in AIR 1974 Madhya Pradesh 75. Justice G.P. Singh (as His Lordship then was) in a concurring judgment explained the aforesaid rule, if we may say so, very authoritatively at page 79 of the report. His Lordship held:

...I will only add a few words of my own. Rule 6 of Order 12 of the Code of civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now Rule 3 of Order 27, and is almost identically worded (see Annual Practice 1965 edition Part I. p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen (1914) Ch 904. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of covenant against sub-letting. Lessee's solicitors wrote to the plaintiff's solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under Rule 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that rule. Sargant, J. rejected the argument that the rule is confined to admissions made in pleadings or under Rules 1 to 4 in the same order (same as ours) and said:

he rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed.

Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargent, J. The words "either on the pleadings or otherwise" in Rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial.

(Emphasis added)

46. This Court expresses its approval of the aforesaid interpretation of Order 12 Rule 6 by Justice G.P. Singh (as His Lordship then was). Mulla in his commentary on the Code has also relied on ratio in Shikharchand (supra) for explaining these provisions.

47. Therefore, in the instant case even though statement made by the Club in its petition under Section 114 of the Transfer of Property Act does not come within the definition of the word 'pleading' under Order 6 Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word 'pleading' has been suffixed by the expression 'or otherwise'. Therefore, a wider interpretation of the word 'pleading' is warranted in understanding the implication of this rule. Thus the stand of the Club in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing judgment on admission under Order 12 Rule 6 in view of clear words 'pleading or otherwise' used therein especially when that petition was in the suit filed by the Trust.

57. Therefore, the common law doctrine of Election is a part of our jurisprudence and squarely applies in this case inasmuch as the Club has advanced inconsistent pleas as noted hereinabove.

58. In so far as non-payment of lease rent is concerned, the Club has admitted it in its written statement in paragraphs (8) and (10). The Club has also admitted it in its reply to the Trust's petition under Order 12 Rule 6 referred to hereinabove. The Club has also admitted non-payment of rent in its petition under Section 114 of the Transfer of Property Act where it sought the equitable remedy of forfeiture and which has been denied to it by the High Court for valid reasons.

59. From the pleadings between the parties in this case the following things are admitted:

(a) the Club has admitted in its written statement that the Trust is its Lessor;

(b) the Club has also admitted that it has not paid the lease rent;

(c) the Club has also admitted that the lease rent is more than Rs. 3500/- per month in its reply to the Trust's petition under Order 12 Rule 6;

(d) the Club has also admitted the receipt of notice of termination of lease issued by the Trust on the ground of non-payment of lease rent.”

- A.K.Ganguly, J

2.1.7. In Charanjit Lal Mehra and Others v. Kamal Saroj Mahajan and Another (2005) 11 SCC 279 The 1st respondent is the plaintiff in the suit for eviction, arrear of rent and damages. The landlord-tenant relationship was not disputed. The 4 tenants disputed that the tenancy is not a composite one but is a separate on and hence separate action must have been initiated. It was held that from the plain reading of the lease deed, the 4 brothers form one party and the tenancy is a composite one and not a separate one. Hence the Hon’ble Court held that it amounts to admission and upheld the judgment of the court below allowing application under Order XII Rule 6 CPC.

2.2. IN PLEADING OR OTHERWISE:

2.2.1. Pleadings mean plaint and written statement [2] . There is no doubt that the admission contained in pleading qualifies as valid under Order XII Rule 6.

2.2.2. The interpretation of ‘otherwise’ has been done in several case where the Courts have concluded that otherwise necessarily means any place. It has been adjudicated that admissions made in balance sheets [3] , minutes of meetings [4] , agreements [5] , notices [6] , letters [7] , etc constitute valid admission.

2.2.3. The party seeking admission can either, call for the other party to make such admission under Rule 1 and Rule 2 of Order XII to admit the facts or the documents as in the case may be through Form 9 and Form 10 of CPC, or rely on the admission or confirmation of admission through pleadings.

2.2.4. This was clarified for the first time before Chancery Division in Ellis v. Allen (1914) 1 Ch 904. The Plaintiff and the 1st defendant had a subsisting lease where there is explicit condition that the 1stdefendant shall not sub-let the premise to third parties without permission from the plaintiff. The 1stdefendant sub-let the property to 2nd defendant. The plaintiff sent a notice to the defendants foe vacation of the premise. The 1st defendant through its attorney replied to the notice admitting lease and sub-lease but raising other issues of development cost, furnishing, etc. In the suit, plaintiff filed an application for judgment on admission to treat the reply of the defendant as admission. Back then there were no specific precedents on this question. In fact in Landergar v. Feast [8] the court held that the term otherwise can only be looked into to accommodate the admissions secured under Rule 1-4 of the same order. However in this case Sargant, J took a very wide approach to interpret ‘otherwise’ and held a beneficial provision like Rule 6 should not be confined to cryptic interpretation. His Lordship further held wherever there is clear admission of facts in the face of which it is impossible for the party making it to succeed. Further the court also rejected the plea of the defendants that they would still have defence on the ground of mistake or inadvertence. The court held there is no mistake or inadvertence in the present case, as it is a plain statement of facts and allowed the application for judgment on admission.

“The object of the rule was to enable a party to obtain speedy justice where the other party has made a plain admission entitling the former to succeed. I do not think R. 6 should be confined as suggested. In my judgment it applied wherever there is a clear admission of facts in the fact of which it is impossible for the party making it to succeed.”

- Sargant, J.

2.2.5. The document relied on for a judgment on admission need not necessarily be made before the Court. In the event where a letter of acknowledgment of debt is made and the party, in its pleadings, fails to deny such letter or explain why such letter cannot be considered as conclusive proof of debt, it qualifies as valid admission.

2.2.6. In Uttam Singh Duggal & Co. Ltd. V. United Bank of India (2000)7 SCC 120

The 1st respondent bank, plaintiff in the suit for recovery of money has filed an application under Order XII Rule 6 CPC. The 1st respondent relied on the balance sheet of the appellant herein which reflects the debt owed to the 1st respondent and the minutes of meeting of the appellant’s board of directors acknowledging such debt. The trial and appellate courts allowed the application. It was contended that the admission made in board resolution and balance sheet cannot be relied to determine an application under Order XII Rule 6 CPC. The Hon’ble SC however, refused to accept the arguments of the appellants and upheld the order of the Courts below holding, there is no doubt that the admission made under the balance sheet and the minutes constitutes admission and furthermore, in the affidavit, no specific denial or explanation has been provided by the Appellant to necessitate doubt or question over the documents. Interestingly, the Apex Court held that admission in this case is made as part of the pleadings. Even otherwise, admissions made dehors of the pleadings can also be relied upon for the purpose of this Rule.

“12. As to the object of the Order XII Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.

13. The next contention canvassed is that the resolutions or minutes of meeting of the Board of Directors, resolution passed thereon and the letter sending the said resolution to the respondent bank cannot amount to a pleading or come within the scope of the Rule as such statements are not made in the course of the pleadings or otherwise. When a statement is made to a party and such statement is brought before the Court showing admission of liability by an application filed under Order XII Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the Court, we do not think the trial court is helpless in refusing to pass a decree. We have adverted to the basis of the claim and the manner in which the trial court has dealt with the same. When the trial judge states that the statement made in the proceedings of the Board of Directors meeting and the letter send as well as the pleadings when read together, leads to unambiguous and clear admission with only the extent to which the admission is made is in dispute. And the court had a duty to decide the same and grant a decree. We think this approach is unexceptionable.

14. Before the trial judge, there was no pleading much less an explanation as to the circumstances in which the said admission was made, so as to take it out of the category of admissions which created a liability. On the other hand, what is stated in the course of the pleadings, in answer to the application filed under Order XII Rule 6 CPC, the stand is clearly to the contrary. Statements had been made in the course of the minutes of the Board of Directors held on 30th May, 1990 to which we have already adverted to in detail. In the pleadings raised before the Court, there is a clear statement made by the respondent as to the undisputed part of the claim made by them. In regard to this aspect of communicating the resolution dated 30th May, 1990 in the letter dated 4th June, 1990 what is stated in the affidavit-in-opposition in application under Order XII Rule 6 CPC is save, what are matters on record and save what would appear from the letter dated 30th May, 1990 all allegations to the contrary are disputed and denied. This averment would clearly mean that the petitioner does not deny a word of what was recorded therein and what is denied is the allegations to the contrary. The denial is evasive and the learned judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted.

15. Even without referring to the expression 'otherwise' in Rule 6 of Order XII CPC, we can draw an inference in the present case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission. If that is so, interpretation of the expression 'otherwise" becomes unnecessary.

16. The learned Counsel for the appellant relied on a decision of this Court in Nagubai Ammal and Ors. v. B.Shama Rao and Ors. [1956]1SCR451 , as to when an admission becomes relevant. In Nagubai Ammal (supra) which is locus classicus on the subject states that merely because a written admission made in a different context, such admission may not become relevant if the party making it has a reasonable explanation of that. But that is not the position in the present case at all. Learned Counsel for the appellant further adverted to the decision in Balraj Taneja and Anr. v. Sunil Madan and Anr. AIR1999SC3381 in which the Court was concerned with a case of the effect of not filing a written statement and whether a decree could be passed only on that basis. That was a suit for specific performance and it was held it could not be granted without even writing a detailed judgment and adverted to various provisions of CPC and reference was made to Order XII Rule 6 by way of analogy and referred to the dictum in Razia Begum v. Sahebzadi Anwar Begum [1959]1SCR1111 , to state that Order XII Rule 6 should be read along with proviso to Rule 5 of Order 8 CPC. In that case, what was noticed was that in cases governed by Section 42 and Section 43 of Specific Relief Act, 1877, the Court is not bound to grant declaration prayed for on the mere admission of the claim by the defendant if the Court has reason to insist upon a clear proof apart from admission. The result of a declaratory decree confers status not only on the parties but for generations to come and so it cannot be granted on a rule of admissions and, therefore, insisted upon adducing evidence independent of the admission. That is not the position in the present case at all. We fail to see how this decision can be of any use to the petitioner. The decision in re Pandam Tea Co. Ltd. AIR1974Cal170 pertain to the manner in which the balance sheet should be read and has no bearing on the case. The decision in Shikharchand and Ors. v. Mst. Bari Bai and Ors. 1974 MP. 75, is to the effect that the Rule is wide enough to afford relief not only in cases of admissions in pleadings but also in the case of admission de hors pleadings. State Bank of India v. Midland Industries and Ors. AIR1988Delhi153 . and Union of India v. Feroze & Co. AIR 1962 J & K 66 cannot have any relevance because the facts in arising cases and the present case are entirely different.

17. Learned Counsel for the petitioner contended that admissions referred to in Order XII, Rule 6 CPC should be of the same nature as other admissions referred to in other Rule preceding this Rule. Admissions generally arise when a statement is made by a party in any of the modes provided under Sections 18 to 23 of the Evidence Act, 1872. Admissions are of many kinds : they may be considered as being on the record as actual if that is either in the pleadings or in answer to interrogatories or implied from the pleadings by non-traversal. Secondly as between parties by agreement or notice. Since we have considered that admission for passing the judgment is based on pleadings itself it is unnecessary to examine as to what kinds of admissions are covered by Order XII, Rule 6 CPC.”

-Rajendra Babu, J.

2.2.7. Similarly in Indian Bank v. S.N. Engineers and Suppliers and Another (2018) 4 SCC 606 the Appellant is the 2nd defendant in the suit and by a letter to the 1st respondent herein the Appellant has undertaken to honour the cheques for supply of T-3 material not exceeding INR 680000. The undertaking was unconditional and upon dishonour of the instrument, suit has been initiated. The trial Court passed a judgment on admission and imposed cost on the bank. The Calcutta HC upheld the judgment. On Appeal, the Supreme Court refused to alter the findings of the courts below and affirmed that the undertaking to clear cheques is unconditional, hence qualifies as admission.

2.2.8. In an nutshell, any document can be perused to gather admission if not specifically denied or explained by the admitting party.

2.3. ORAL OR IN WRITING:

2.3.1. Admission as per Order XII Rule 6 CPC can be either Oral or in Writing.

2.3.2. Oral admission although seem improbable, can be relied if the admitting party does not deny such admission. However in the event of judgment on oral admission, satisfaction of proviso to Order VIII Rule 5 of CPC would be improbable.

2.3.3. When an application is filed under Order XII Rule 6 CPC, based on an oral admission of a party, if such admission is denied by the admitting party in pleadings, a judgment on admission cannot be passed. The truth about such disputed statement can only be ascertained through trial and not by inference.

2.3.4. It is important to note that this is added by the 1976 Amendment. The 54th Law Commission in its recommendation regarding this addition, says,

“12.4. The rule has been held to be wide enough to cover oral admissions. The use of the words “or otherwise” in R. 6, without the words “in writing” which are used in R. 1 of Or. 12, shows that a judgment may be given even on an oral admission. It is desirable to codify this interpretation.”

Hence it is deliberate legislative intent to bring Oral Admissions within the scope of Order XII Rule 6 CPC.

2.4. COURT MAY:

2.4.1. The word ‘may’ has been represented in interpretation of several statutes as discretionary and not mandatory. The Rule specifically states that the Court ‘may’ pass such judgment on admission. This necessarily provides a discretionary power to the Courts to exercise such discretion based on the facts and circumstances of each case.

2.4.2. The relief under Order XII Rule 6 cannot be demanded as a rule and it is neither peremptory not mandatory but discretionary [9] . However it does not mean that the Court can arbitrarily exercise such discretion but must exercise it judiciously with careful consideration of the facts of the case.

2.4.3. In my opinion the legislative intent behind such discretion is to make sure that no party is deprived of its right to defend a case. The court has exercised its discretion to accept or reject a statement as admission depending on the complexity of defence, independence of the admission, nature of the suit, etc.,

2.4.4. This discretionary power has to be read along the lines of proviso to Sec. 58 of Evidence Act and proviso to Order VIII Rule 5 CPC [10] where it is provided;

“Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”

Hence even in the case of admission, the Court retains absolute discretion to require any fact so admitted to be proved otherwise than by such admission. The circumstances under which the Court may ask for such independent proof shall be dealt later in this article.

2.4.5. It is needless to state that such discretion must be exercised in consonance with the the object of the rule to provide speedy justice atleast to the extent of admission [11] .

2.5. AT ANY STAGE OF THE SUIT:

2.5.1. It is clear beyond doubt that the Court has power to pass admission on judgment at any stage where the court is satisfied that a valid admission is made.

2.5.2. ‘At any stage of the suit’ mentioned in this rule necessarily is identical to Order I Rule 10 CPC where the court at any stage of the suit can direct addition or deletion of parties.

2.6. EITHER BY APPLICATION OF A PARTY OR BY ITS OWN MOTION

2.6.1. The original rule before CPC Amendment Act, 1976 provided for judgment on admission only by application of a party. However, as per the recommendation of 54th Law Commission, the provision was amended to give suo moto power to the Court to pass such judgment independent of any application.

2.6.2. In my opinion, the intent of the amendment is to widen the scope of the rule to enable Courts to pass judgment on admission on its own.

2.7. WITHOUT WAITING FOR DETERMINATION OF ANY OTHER QUESTION

2.7.1. The Court when satisfied that a valid admission is made by a party under this Rule shall proceed to judgment on admission and shall not wait for determination of any other question.

2.7.2. This however is subject to the caveat that the cause of action is divisible to the extent of admission. In a case where INR 1000 is claimed as consolidated debt from A to B and B admits INR 500, a judgment can be passed to the extent of admission and the question of residue INR 500 need not be determined.

2.7.3. This principle however has to be interpreted correctly because if the defence to admission goes to root of the issue [12] or requires letting in of evidence, Order XII Rule 6 would not be feasible.

2.7.4. In Thorp v. Holdsworth (1876) 3 Ch D 637 before the Chancery Division, an issue came where the plaintiff and defendant had entered into a lease deed which contains some stipulations. The defendant admits all but one of such stipulation. The plaintiff seeks judgment on admission and defendant objects to it on the ground that the admission should be considered as a whole. The Court while allowing the application for judgment on admission observed;

“If you have an agreement for lease containing fifty stipulations made by parol, and the Plaintiff and defendant both agreed that there was such an agreement, and , except as to one of the fifty stipulations, that it had been carried out and acted upon, what would be said of a Court of Justice if it allowed the Defendant simply to deny that there was any such agreement as alleged, so that the Plaintiff should be compelled to come to trial with witnesses to prove every one of the fifty stipulations of the agreement? Of course the defendant ought to admit that forty-nine were made, and deny the fiftieth, and then the cause would come to a trial upon the question whether the fiftieth stipulation alleged did or did not form part of the agreement. That is not hard upon a defendant: it is the proper mode of carrying on the administration of justice.”

2.7.5. To sum up, when an admission is made, clarifying the entitlement of a party to the extent of such admission a judgment shall be made to the extent of such admission. There is no doubt that multiple decrees can be made in a suit [13] .

2.8. MAKE ORDER OR JUDGMENT AS IT MAY THINK FIT:

2.8.1. The court based on such valid admission, as it may think fit, shall make a judgment or order. The term order or judgment shall be judgment under Sec. 2(9) CPC and Sec. 2(14).

2.8.2. The term as it may think fit has been interpreted as an exercise of judicial discretion similar to Order VIII Rule 10 CPC [14] . The court while passing such order or judgment shall provide reason for such judgment as per Order XX Rule 4(2) [15] .

2.9. DECREE SHALL BE DRAWN UP:

2.9.1. Sub Rule (2) was inserted by CPC Amendment Act, 1976 and in my opinion, the intent is to provide enforceability to such judgments on admission passed under Order XII Rule 6 CPC.

3. JUDGMENT ON ADMISSION – WHEN REFUSED

In my opinion there are many circumstances under which judgment on admission is refused than granted. Since the Court is provided with undisputed discretion while exercising this power, every case would carry a unique factual bundle for fresh consideration. However relying on the precedents thus far the following are the few circumstances under which judgment on admission is refused;

3.1. DECLARATORY SUITS:

3.1.1. It would be highly controversial and incorrect to state that admissions are not allowed in any declaratory suits. Declaratory reliefs under Sec. 34 and 35 of Specific Relief Act are discretionary by nature. Further in case of some declaratory suits, despite admission the case would require proof of the averment to merit such declaration.

3.1.2. In Razia Begum v. Sahebzadi Anwar Begum and others AIR 1958 SC 886

The Appellant is the plaintiff in a suit for declaration of her marital status as the legally wedded wife of Prince. The Prince files a written statement admitting that the appellant is his legally wedded wife. The 1st and 2nd respondent, the 1st wife and minor child of the Prince, file an application under Order 1 Rule 10 CPC for impleading the in the suit. The Appellant as well as the Prince objected to the application averring that any judgment passed in the suit of the Appellant would not affect the impleading party as under Muslim Law he is legally permitted to marry four wives. However, the Prince admitted that the 1stand 2nd respondent are his wife and child respectively. The 1st and 2nd respondents insisted on impleading as they alleged collusion between parties. In this precedent the Court while determining the validity of Order 1 Rule 10 application also touched upon Order XII Rule 6 CPC concerning the admission of the Prince in the Written statement. The court held that in a declaratory suit filed under Sec. 42 and 43 of Specific Relief Act 1877 (Corresponding Provision Sec. 34 and 35 of Specific Relief Act, 1963) is prima facie a suit seeking a discretionary relief. The Court held that Order XII Rule 6 of CPC must be read along with proviso to Order VIII Rule 5 of CPC (Extracted below) where the court holds discretion to require proof of facts independent of the admission. The Court also observed that the proviso is identical to the proviso to Sec.58 of Evidence Act and held that there is no doubt that the Court has discretion to require proof of facts despite admission. The Court placed reliance on Anderson’s Action for Declaratory Judgments (Extracted below) and held in case of declaratory reliefs, which would affect known or unknown third parties, judgment on admission cannot be claimed as matter of right as it involves a complex matrix of facts which might need proving independent of the admission. The opinion of the bench was divided 2:1 but the dissenting opinion was on the scope of impleading respondents 1 and 2 and not on judgments on Admission.

10.It is also clear on the words of the statute, quoted above, that the grant of a declaration such as is contemplated by Section 42, is entirely in the discretion of the court. At this stage, it is convenient to deal with the other contention raised on behalf of the appellant, namely, that in view of the unequivocal admission of the plaintiff's claim by the Prince, in his written statement, and repeated as aforesaid in his counter to the application for intervention by the Respondents 1 and 2, no serious controversy now survives. It is suggested that the declarations sought in this case, would be granted as a matter of course. In this connection, our attention was called to the provisions of Rule 6 of Order 12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the court would give judgment for the plaintiff. These provisions have got to be read along with Rule 5 of Order 8 of the Code, with particular reference to the proviso which is in these terms: —

The proviso quoted above, is identical with the proviso to Section 58 of the Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted. In this connection, the following passage in Anderson's Actions for Declaratory Judgments, Vol. 1, p. 340, under Article 177, is relevant:

“A claim of legal or equitable rights and denial thereof on behalf of an adverse interest or party constitutes a ripe cause for a proceeding, seeking declaratory relief. A declaration of rights is not proper where the defendant seeks to uphold the plaintiffs in such an action. The required element of adverse parties is absent.”

“In other words the controversy must be between the plaintiff and the respondent who asserts an interest adverse to the plaintiff. In the absence of such a situation there is no justiciable controversy and the case must be characterized as one asking for an advisory opinion, and as being academic rather than justiciable i.e. there must be an actual controversy of justiciable character between parties having adverse interest.”

Hence, if the court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the court, in pursuance of the terms of Section 42 of the Specific Relief Act, decides, in a given case, to insist upon clear proof of even admitted facts, the court could not be said to have exceeded its judicial powers.

- Bhuvaneshwar Prasad Sinha, J

3.1.3. From the above judgment it can be reasonably inferred that in cases seeking declaratory reliefs, the court might require evidence other than admission to appreciate the averments of the plaint.

3.1.4. It would be concrete to pass a judgment on admission in commercial cases, recovery of money, recovery of possession, etc., where no declaration of a right is required. However in my opinion, it cannot be a rule that admission on judgment cannot be made in declaratory suits. If such admission coupled with apparent averments and plaint documents necessitates a judgment, it can very well be made.

3.2. SUITS REQUIRING PROOF DESPITE ADMISSION:

3.2.1. Almost on the same line of the preceding heading, in the event where any suit requires independent proof despite admission, a judgment under Order XII Rule 6 CPC cannot be passed.

3.2.2. In Balraj Taneja and Another v. Sunil Madhan and another (1999) 8 SCC 396

Suit for specific performance of agreement to sale by the respondent 1. The Appellant failed to file Written statement. A judgment under Order VIII Rule 10 CPC was made and directed the respondent to deposit remaining sale consideration and directed execution of sale deed. The validity of the judgment passed under Order VIII Rule 10 is under challenge. The plaint says that the sale consideration is INR 700000/- and an advance of INR 400000/- has been made and INR 225000/- would be made after receipt of permission for sale from the Income Tax Department and INR 75000/- would be made upon execution of sale deed. The facts in the pleadings by themselves might require proving even without written statement. The Hon’ble Court placed reliance on Razia Begum Case and held as per provisio to Order VIII Rule 5 CPC and Sec. 58 of Evidence Act, the court may still require the pleadings of the plaint to be proved. In the present case, there necessarily is a necessity for permission from the Income Tax department. Under such circumstances, whether the respondent secured the permission is a fact that needs proving without which the suit for specific performance by itself might not be maintainable. Glaringly in this case, no such permission was secured from the Income Tax Department. The court interpreted the phrase “make such order in relation to the suit as it thinks fit” and held that the Court must satisfy itself before making an order under Order VIII Rule 10 CPC or Rule 5 or under Order XII Rule 6 CPC. The court went on to reiterate that under Sec. 2(9) of CPC and Order 20 Rule 4(2) of CPC, the judgment must bear reason for decree and while giving such reason, the court must satisfy itself with reasonable proof of the plaint averments, it the circumstances of the case mandates. Judgment set aside and remanded for fresh consideration.

3.2.3. Hence even while taking admission under Order XII or Order VIII into consideration, necessity for proof despite the admission need to be analysed by Courts. The legislative intent behind provisio to Order VIII Rule 5 and Order XII 2-A is that the court mandates such proof independent of admission depending on the facts of the case.

3.3. IRRELEVANT STATEMENT:

3.3.1. The statement made irrelevant to the context of the suit shall not constitute admission. Further a statement made by inference of circumstances shall also not be admission unless such statement is acted upon detriment to the interest of the maker constituting estoppel.

3.3.2. Further an admission based on circumstances cannot be treated as truth if that can be disproved. Simply put if a person admits that the sky is green, it need not necessarily be the truth and court may not rely on the judgment considering the fact of the case.

3.3.3. In Nagubai Ammal and others v. B. Shama Rao & others 1956 SCR 451

This precedent hailed as locus classicus on Order XII Rule 6 CPC carries severely complex set of facts as the primary litigation lasted for over 40 years. The suit properties belonged to one Munusami who left behind his third wife, three sons though his predeceased wives and three minor daughters. The three sons entered into usufructuary mortgage with one Mr. Abdul Haq. Three years was fixed as period for redemption and the property was leased back to the mortgagors. The brothers partitioned the property between them and the partition deed carried condition to pay INR 8 to the widow and to maintain the daughters. Due to breach, the widow and three daughters instituted suit in forma pauperis claiming maintenance. Suit was allowed with direction to pay INR 6 per month and to pay INR 1500 towards marriage expenses of the daughters. The brothers were adjudicated insolvents and upon execution of the decree, the property was sold and bought by one of the sisters, Devanamma. The mortgagee, Abdul Haq sued for foreclosure and arrayed the brothers and sisters as defendants alleging collusion in the maintenance suit. The mortgage suit was decreed and by court auction, the property was sold to one Mr. Chapman and from him to Krishna Road, the respondent. The possession was hindered two rival claimants, 1. Garudachar, claiming though sale deed executed by the husband of one of the sisters 2. Nagubai, claiming through sale deed from one of the mortgagors. Krishna Rao instituted a suit for declaration against Garudachar and emerged successful. The present appeal is from the suit instituted against Nagubai.

The suit was for declaration of Chapman’s title perfected through court auction and to declare the claim of defendant bad. Nagubai contested on the gound of non-impleadment in the mortgage suit and also claimed adverse possession. The trial court held that the title of Nagubai is hit by lis pendens and further that she has failed to prove possession.

The Appeal carried several grounds and those that relating to Admission on Judgment are as follows;

The mortgagee Abdul Haq in his petition before the insolvency court alleged collusion between the insolvents and the possessors of the property in the execution proceedings. The ground of attach of the sale deed was that it was fraudulent. In an nutshell the suit itself was not attacked as collusive but the execution proceedings were impeached as fraudulent. The appellant in a futile attempt to hold the above statement as admission, claimed that, in the present suit, the appellant has gone back on his stand and has alleged that the maintenance suit by itself is collusive. The Appellants alleged that if the earlier suit is collusive as claimed by Abdul Haq, their title is perfect. The Apex Court refused to heed to such plea and held;

“16. An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. In the present case, there is no question of estoppel, as the title of Dr Nanjunda Rao arose under a purchase which was long prior to the admissions made in 1932 and in the subsequent years. It is argued for the appellants that these admissions at the least shifted the burden on to the plaintiff of proving that the proceedings were not collusive, and that as he gave no evidence worth the name that these statements were made under a mistake or for a purpose and were, in fact, not true, full effect must be given to them. Reliance was placed on the well-known observations of Baron Parke in Slatterie v. Pooley3 that “what a party himself admits to be true may reasonably be presumed to be so”, and on the decision in Rani Chandra Kunwar v. Chaudhri Narpat Singh: Rani Chandra Kunwar v. Rajah Makund Singh4 where this statement of the law was adopted. No exception can be taken to this proposition. But before it can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. It has been already pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in 0. S. No. 100 of 1919-20 were fraudulent and not collusive in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive.”

- T.L.Venkatarama Ayyar, J.

3.4. ROOT OF THE MATTER:

3.4.1. When the defence or the inference of admission goes to the root of the matter which requires wholistic adjudication, judgment cannot be passed under Order XII Rule 6 CPC.

3.4.2. In State Bank of India v. M/s. Midland Industries & Others 1987 SCC Online Del 325

The Appellant, plaintiff in the suit for recovery of money filed an application under Order XII Rule 6 CPC relying on the balance sheet of the respondent. The balance sheet showed provisional balance of INR 598000 as on 31.03.1985. The defendants disputed the admission by stating that it neither contains the signature nor is written by all defendants. Further the defendants raised preliminary issue on maintainability of suit. The Trial Court rejected the application for judgment on admission and on appeal it was contended that the contents of balance sheet constitutes admission. The court held that the application was rightly rejected as the issue in suit goes into the root of the lis . Furthermore, where the defendants have raised preliminary objection, which in the event of being allowed would non-suit the appellant, it is necessary to try the suit on merit and not under Order XII Rule 6 CPC.

“6……There is no doubt that Rule 6 of Order 12 has been couched in a very wide language. However, before a court can act under Rule 6, admission must be clear, unambiguous, unconditional and unequivocal. Furthermore a judgment on admission by the defendant under Order 12 rule 6 Civil Procedure Code is not a matter of right and rather is a matter of discretion of the court, no doubt such discretion has to be judicially exercised. If a case involves questions which cannot be conveniently disposed of or a motion under this rule the court is free to refuse exercising discretion in favor of the party invoking it. It is not in each case where Order 12 rule 6 Civil Procedure Code is invoked that the court 528 would be obliged to pass a decree which case would depend upon its own peculiar facts. Where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favor of the plaintiff. The purpose of Order 12 rule 6 Civil Procedure Code is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim of the defendant. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment he should be able to obtain it at once to the extent of admission. But the rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provision of Order 12 rule 6 Civil Procedure Code without proving those issues.

8.In the case in hand not only admission is not unequivocal but further also the defendants have raised certain preliminary pleas which must be decided before the plaintiff can be held to be entitled to a decree. The preliminary objections raised by the defendants in this case go to the very root of the suit and are likely to non-suit the plaintiff if these were found against the plaintiff. Keeping in view of all these facts, I do not think that a case has been made out under Order 12 rule 6 Civil Procedure Code . for passing a decree in favor of the plaintiff for the sum of Rs. 5,98,000.00 and as such I find no merit in this application and this application is liable to be dismissed and is dismissed.”

- Mahesh Chandra, J.

3.5. INDELIBERATE AND INDEFINITE STATEMENT:

3.5.1. Any statement made which is not deliberate or unambiguous and definite cannot be treated as valid admission. It is a well settled principle of law.

3.5.2. In Raj Kumar Chawla v. Lucas Indian Services 2006 (89) DRJ 560 (DB)

The respondent, the plaintiff in the suit for recovery of INR 3,61,186.74/-. An application under Order XII Rule 6 CPC was filed relying on a letter from the appellant herein. Despite objections, the trial court allowed the application. The letter from the appellants contained admission of due of INR 36000 and return of goods worth INR 154949 and the trial court passed a judgment on admission for INR 190949/-. On Appeal before the Delhi HC, the ingredients of valid admission were reiterated. The Court while confirming the validity of multiple decrees in a suit, refused to treat the letter of the Appellant as admission as it is not a concise and deliberate act. In this case the respondent has written a letter to the appellant referring to the meeting held and sought payment and agreed to take return of goods. The appellant in reply in the course of several allegations against the respondent, made a remark on the outstanding amount. Since this letter was referred out of context and no unambiguous and clear admission was made, the judgment of the trial court was set aside.

“6. The powers under Order XII Rule 6 of the Code has to be exercised judicially on the facts and circumstances of each case. The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional. There is no doubt that in a suit there can be more than one decree passed at different stages and each decree being separate and independent is enforceable in accordance with law, was the principle stated by [1971]2SCR171 Chanchal v. Jalaluddin. Admission understood in its common parlance still must be a specific admission. There is very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first category and normally should decline in the cases of the later category.

9. …..The outstanding amount which was Rs. 3.97 lac prior to the meeting with the plaintiff had on its own come down to Rs. 0.36 lacs when the defendant had not paid anything to the plaintiff. This was stated by way of an example by the defendants to show as to how properly the accounts were being managed. Thereafter, reference was made to the possibilities of settlement in due course. The decree based on admission of the Trial Court is founded on these two letters. One letter is written by the plaintiff to the defendant while the other letter is written by the defendant to the plaintiff. The letter written by the plaintiff to the defendant could in no way, by any stretch of imagination, be treated as an admission of the defendant of his liability to pay to the plaintiff the amount referred in that letter. The letter dated 23.9.2000 written by the defendant to the plaintiff was a grievance raised to indicate that the plaintiff was not even maintaining the accounts regularly and as such it would not only be unfair but even unjust to treat that letter as an admission of law. This, in fact, cannot even construe on interpretation as an admission much less a direct and unequivocal admission of the defendant of any liability towards the plaintiff. In fact, prior to these letters vide letter dated 12th July, 1999 (Ex P8) the defendant had written to the plaintiff that some money was blocked. The letter dated 12th July, 1999 again is a letter which refers to various aspects of business including that the defendant has to pay some amount to the company. In that very letter it was stated that credit notes had not been issued, returned goods values had not been adjusted and the defendant had claimed a sum of Rs. 40,000/- payable to him from the plaintiff.

10. The cumulative effect of the above discussion is that there is no unambiguous, specific and clear admission by the defendant of his liability towards the plaintiff much less of any definite claim as stated in the plaint. In the written statement large factual and legal controversies have been raised which require determination by the Court of competent jurisdiction before any decree could be passed. Viewed from any angle, the facts and circumstances of the present case cannot justify passing of a decree on admission, on facts and in law.”

- Swatanter Kumar J

3.6. INCONCLUSIVE STATEMENT:

3.6.1. In the event where a statement accorded as admission is made and does not conclude such admission, it cannot be treated as valid admission.

3.6.2. It is imminent that the admission so made is conclusive, clear and unequivocal.

3.6.3. In Himani Alloys Limited v. Tata Steel Limited (2011) 15 SCC 273

The respondent filed a suit for recovery of INR 2,02,72505/- from the Appellant. The respondent filed an Application under Order XII Rule 6 CPC for judgment on admission based on the minutes of meeting held on 09.12.2000 between the representatives. The Appellant suffered adverse order in both trial and appellate court as the application was allowed. On Appeal, the Hon’ble Supreme Court affirms that admission contained in minutes of a meeting can be construed as valid admission under Order XII Rule 6 CPC. However, the minutes of meeting ends with a observation, “final figure will be arrived at the meeting accordingly” which is not unequivocal admission of a liability. The court refused to place reliance on the minutes to satisfy the requisites of Order XII Rule 6 CPC and held that admission must be categorical, conscious and deliberate and the party making such admission must show intention to be bound by it. It was also reiterated that Order XII Rule 6 is neither mandatory nor peremptory but discretionary. Appeal was allowed setting aside the judgment on admission.

“9.Thereafter, in paragraphs 3, 4 and 5, there is a reference to both parties agreeing to provide particulars, agreeing to hold further discussions on 26.12.2000 and Respondent agreeing to check up its records to find out the correctness of certain entries. Thereafter the minutes conclude that the "final figure will be arrived at the meeting accordingly". When the minutes merely notes certain figures and states that they are tentative and both parties will verify the same and says that the final figure will be arrived at the next meeting, after discussions, we fail to understand how the same could be termed as an "admission" for the purpose of Order 12 Rule 6 of the Code.

10. Another aspect regarding the minutes dated 9.12.2000 requires to be noticed. The Minutes do not refer to any admission by HIMANI (Appellant) to pay any amount to TISCO (Respondent). If a buyer states on 9.12.2000 that his account as on 31.3.1999 shows a balance of amount 'X' to the credit of the supplier, it can not be treated as an admission that the said amount 'X' was due to the supplier on 9.12.2000. In a continuing account, it may be possible that between 31.3.1999 and 9.12.2000, there may be debits to the account, or 'reveral of credits' or 'settlement of the account'. We therefore hold that there was No. admission on 9.12.2000 which could result in a judgment under Order 12 Rule 6 of the Code.

11. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a Defendant to contest the claim.”

-R.V.Raveendran, J.

3.7. ADMISSION DEPENDENT ON DETERMINATION OF ANOTHER QUESTION:

3.7.1. In cases where a statement although by definition qualifies as admission cannot be accepted where determination of another issue or right is imminent to crystalise the right acquired through admission, it can be refused.

3.7.2. In S.M. Asif v. Virender Kumar Bajaj (2015) 9 SCC 287

The respondent is the plaintiff in suit for recovery of possession upon termination of lease. The respondent sought judgment on admission as the Appellant accepted the landlord tenant relationship. The appellant resisted the suit by claiming that he has made advances towards the property a sum of INR 82.50 lakhs in furtherance to a Sale Agreement. The Appellant also filed a suit for specific performance of the Sale Agreement. The trial court allowed the application for Judgment on Admission. The Apex Court held that, since the Appellant has managed to set up defence to maintain possession based on an sale agreement and also cash receipts, the question needs to be decided alongside the specific performance suit. The admission of landlord-tenant relationship by itself will not confer right to possession on the respondent. Hence judgment set aside and remanded for fresh hearing.

“8. The words in Order XII Rule 6 Code of Civil Procedure "may" and "make such order..." show that the power Under Order XII Rule 6 Code of Civil Procedure is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the Court. Where the Defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion Under Order XII Rule 6 Code of Civil Procedure. The said rule is an enabling provision which confers discretion on the Court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.

9.In the suit for eviction filed by the Respondent-landlord, Appellant-tenant has admitted the relationship of tenancy and the period of lease agreement; but resisted Respondent-Plaintiffs claim by setting up a defence plea of agreement to sale and that he paid an advance of Rs. 82.50 lakhs, which of course is stoutly denied by the Respondent-landlord. The Appellant-Defendant also filed the Suit for Specific Performance, which of course is contested by the Respondent-landlord. When such issues arising between the parties ought to be decided, mere admission of relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit Under Order XII Rule 6 Code of Civil Procedure.

10. Having regard to the stand taken by the parties, in our view, an opportunity has to be afforded to the Appellant to put forth his defence and contest the suit and therefore, the matter is to be remitted to the trial court for a fresh hearing, however, subject to the condition that the Appellant should pay the arrears of rent at the rate of Rs. 44,000/- per month within a period of eight weeks.”

- R. Banumathi, J.

4. CONCLUSION

From the above precedents, reports and discussions, it is clear that Order XII Rule 6 is a provision for the benefit of speedy remedy. However, interpretation of what amounts to admission holds the key in effective implementation of this Rule. In my opinion, this rule creates more questions than it answers. Since, what amounts to admission will be a question depending on facts and circumstances of each case, the presiding officer is provided with vast discretion to apply this provision. By judicial exercise of such discretion, no doubt, would make this rule indispensable. This provision is theoretically sound but practically overlooked due to existing trend. At present, Courts favours disposal of a suit by trial and is not inclined to exercise its discretion. As easy as it sounds, to exercise such delicate power, both the bar and the bench must familiarize itself with sound principles of law concerning admission of judgment. With sound judicial activism, Order XII Rule 6 CPC would be a formidable weapon against frivolous suits.

[1] Uttam Singh Duggal & Co. Ltd. V. United Bank of India (2000)7 SCC 120 [2] Order VI Rule 1 CPC. [3] State Bank of India v. M/s. Midland Industries & Others 1987 SCC Online Del 325 [4] Himani Alloys Limited v. Tata Steel Limited (2011) 15 SCC 273 [5] Karam Kapahi and Others v. Lal Chand Public Charitable Trust (2010) 4 SCC 753 [6] Thorp v. Holdsworth (1876) 3 Ch 637 [7] Indian Bank v. S.N. Engineers and Suppliers and Another (2018) 4 SCC 606 [8] (1891) 1 QB 417 [9] Himani Alloys Limited v. Tata Steel Limited (2011) 15 SCC 273 [10] Razia Begum v. Sahebzadi Anwar Begum and others AIR 1958 SC 886 [11] 54th Law Commission report – Chapter 12 [12] State Bank of India v. M/s. Midland Industries & Others 1987 SCC Online Del 325 [13] Raj Kumar Chawla v. Lucas Indian Services 2006 (89) DRJ 560 (DB) [14] Balraj Taneja and Another v. Sunil Madhan and another (1999) 8 SCC 396 [15] ibid

#judgment #admission #order12rule6 #cpc #civillaw #admission

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2 comentários

A very informative and wonderful article, Sir! I am really amazed at the perseverance and legal acumen involved in writing this piece of blog.

I would like to know in an injunction suit in commercial matter filed by plaintiff who prayed for mandatory injunction for recovery of assets alongwith prohibitory injunction for use/misuse of suits alongwith ad-interim injunction against misuse of assets. The defendants were restrained from misuse of assets through ad-interim order. The defendants failed to submit any written statement. Now with malafide intent, one of the defendant has filed application under Order XII Rule 6 that he is ready to release the assets provided original delivery challans are submitted to them based on admission of facts on interim…

can i challange the will after admission of will in lower court as defender

11 episodes

I’ve worked in university student recruitment and admissions for well over 25 years. I’ve read countless Personal Statements, delivered hundreds of sessions on how to write them, and I have even trained teachers and advisers on how to help their students. This podcast is for you if you are applying through UCAS, and are writing your UCAS Personal Statement In just one hour, over 10 super-short episodes, I’ll give you information and insight into the admissions process, and a very practical guide on writing your statement. Just listen, take notes, and start writing. You’ll also find the whole series available as an online course, or as a written guide that you can download for free at: www.betterunichoices.com

How to write your UCAS Personal Statement - a Better Uni Choices podcast Jonathan Tinnacher

MAR 28, 2024

Part 10: Top Personal Statement tips

Looking for some final tips before you start your first draft? Here are some thoughts that I have picked up from a whole bunch of admissions selectors and other experts over the years.

Part 9: Getting help and support

Want to know how to get the best possible feedback on your statement? There are lots of people around who can help you with your Personal Statement. This part will help you get the very best input, by planning how and when you get feedback from different people.

Part 8: Using ChatGPT

Thinking of using ChatGPT? If you ask Chat GPT to write your statement for you, it will simply make stuff up; a whole statement full of lies. However, engage with it as if it is your counsellor, and it can be extremely helpful. In this part I suggest a couple of really useful prompts, and give some further helpful tips on how to use AI usefully and ethically.

Part 7: Writing a Personal Statement for two subjects

Are you applying for two different subjects? How to write a statement that covers two different courses could be the most asked question in university admissions history, and the answer is not straightforward. There are a number of possible scenarios, and in this part I suggest how to approach these.

Part 6: The power of reflective writing

How do you make sure everything you write really matters to the admissions tutor? You now have lots of content, and a sensible structure for your statement. You know which content you are going to prioritise, and roughly how long each section is going to be. There is just one more area to focus on before you start writing the statement in full, and that’s how to write reflectively.

Part 5: A clear, simple structure

Not sure what goes where? If you have done the exercise in Part 4 reasonably well, you now probably have several pages, and perhaps ten or twenty ideas about yourself, your skills, your experiences, and your chosen course. In this part I’m going to show you how to organise all this content within a really clear, simple structure.

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The Admissions Process for Online MBA Programs: Application Requirements, Deadlines, and Tips

Asian girl student reviews her college application status on her laptop while taking notes.

Whether you’re a seasoned professional seeking to expand your leadership skills or someone aiming to pivot into a new industry, earning a Master of Business Administration (MBA) degree could be your pathway to success. Before you can log in to discuss strategic management principles or dive into the intricacies of business analytics, you must navigate the online MBA admissions process .

This post will dissect the application process and requirements, and share tips on how to make your application not only stand out from the rest but truly reflect your potential as a business leader.

Application Requirements

The admission process for an online MBA program assesses applicants’ qualifications, experience, and potential for success in the program. Acceptance rates to top business schools can be competitive, ranging from 6-20%, meaning that 80-94% of applicants are denied admission. 1 While these acceptance rates aren’t typical for all MBA programs, you will still want your application to present you in the best possible light.

To maximize your chance of acceptance, review the MBA application requirements and deadlines carefully and prepare your application thoughtfully. Experts recommend completing each requirement one at a time; trying to complete them all simultaneously or too quickly can easily lead to burnout. Some experts recommend taking as long as a year and a half to two years to prepare for MBA admissions. 2

The typical application requirements for online MBA programs include:

Application fee
MBA admissions committees look for students with strong math skills; 2 if your transcript lacks math courses, you may want to complete some online quant or finance courses 1
Resume reflecting your work experience
Standardized test scores
Letters of recommendation
Personal statement essay
Interview(s)

Traditional MBA Programs

Most MBA programs have three rounds of application deadlines. Applying early to an MBA program can be beneficial. Early rounds usually have more space and scholarships available. You also receive a decision sooner and have more time to plan for graduate school. You should only submit your application early if you’re truly ready. You have a better chance at success if you submit later with a more qualified application. 2

For a traditional MBA program with a fall start date, round one application deadlines are usually in September. The best practice is to start pulling your application materials together at least six months in advance, to make sure it’s ready for the early deadline. 2

Round two is usually in January. Most applicants apply during this round because it gives them extra time to perfect their applications and retake a test or visit the school campuses. Some applicants apply during this round because things didn’t go as hoped during the first round. Before applying again, applicants should consider why their first-round applications were not accepted. They can take this time to write another essay, retake an exam, or improve their resume. 2

Round three usually takes place in March or April. This round is the most difficult from which to receive an acceptance. If applicants were turned down in round one or two, it is recommended to wait until the next application cycle to try again.

Online MBA Programs

Online MBA programs often have multiple start dates—and, therefore, multiple application deadlines—throughout the year. Research carefully to find out the admissions deadlines for your target start date and to plan your application timeline . Santa Clara University’s Online MBA program has four start dates annually, in fall, winter, spring, and summer.

Resume and Work Experience

Online MBA programs often seek out candidates who are engaged in their communities and accomplished within the workplace. MBA admissions officers want to see prospective students’ quality of work, professional maturity, and increased responsibility over time. An MBA application resume should also highlight essential business soft skills such as leadership, communication, and collaboration.

It’s ideal for an MBA applicant to have three to five years of work experience; 3 Santa Clara’s Online MBA application requires three or more. If your professional history includes one or more employment gaps, be honest about them, highlighting the personal and professional benefits you derived from them. Because we can learn from every life experience, time that you've spent traveling, caring for family members, or studying a new language—just as examples—can add to the skills, perspective and maturity that you bring to the MBA program you're hoping to join.

Standardized Test Scores

Some online MBA programs require applicants to submit scores from standardized tests such as the Graduate Management Admission Test (GMAT) or Graduate Record Examination (GRE).

These tests evaluate quantitative and verbal abilities. Test experts recommend spending at least 100 hours 2 or three to six months 1 preparing for the exam. You can retake the tests up to five times per year. Most schools will review only your highest score. 1 Applicants should aim for a score at or above the median among students currently attending the school. The average score for admitted students is typically posted on a school’s website. For Santa Clara University’s Online MBA program, waivers for GMAT and GRE scores can be granted based on applicants’ previous education and work background.

In addition, many business schools will require that international students (for whom English is a non-native language) demonstrate English proficiency by submitting their scores from the International English Language Testing System (IELTS) or Test of English as a Foreign Language (TOEFL) exam.

Letters of Recommendation

Most online MBA programs require letters of recommendation from professional or academic references: individuals who can speak to your qualifications, skills, personal qualities, and potential for success in the program. They should support your decision to pursue an MBA. If possible, choose a supervisor or co-worker to write on your behalf. 4 Discuss with them why you want to get an MBA, what your professional goals are, how the setting in which they know you has shown off your best qualities, and how you’ve made an impact on the organization.

The reference letters should also note any skills which you aim to strengthen. Many applicants apply to MBA programs because they want to improve certain weaknesses, so the letters should explain how you plan to address these areas. 4

Personal Statement Essay

Many online MBA programs require applicants to submit an essay outlining their academic and professional background, career goals, reasons for pursuing an MBA, and ways in which the program aligns with their objectives. Focus on the following in your essay: 5

Specifically explain your professional goals, describing why they’re important and the impact they could have on your community
Explain why you’re applying to the program; highlight ways in which you see it helping you reach your career goals
Discuss your work experience and why you’re passionate about working in business
As specifically as possible, explain why you’re the ideal candidate for this particular program

The Interview and Interview Preparation

Depending on the program, prospective students may be invited to an admissions interview. Interviews are extremely important to the online MBA admissions process. 2 Applicants can use these interviews to show they have the traits that are beneficial for future leaders.

Consider the following tips as you prepare for your interview : 6

Explain why you want to attend this MBA program.
Describe how you can contribute to the program .
Brainstorm possible questions you will be asked, including difficult questions about weaknesses and past mistakes. Have truthful responses to these questions.
Show confidence, not arrogance. Emphasize your strengths and acknowledge your weaknesses in an appropriate way.
Sharing success stories that show your contributions and accomplishments is more important than just describing your skills. Create a narrative that clearly highlights your abilities.
Be authentic and truthful. Candidates fall short when they answer interview questions based on what they think the interviewer wants to hear.
Practice your responses out loud. Write out your responses so you can memorize them. This helps to answer questions quickly and clearly and avoid rambling while in the interview. You want to be prepared and present yourself confidently, without sounding like you have pat, canned answers.
Prepare a list of thoughtful questions to ask. They should be specific to the program or the interviewer, not addressing topics easily found on the university website.

Advance professionally. Reach your goals.

Come another important step closer to career success. The acclaimed Online MBA program from the Leavey School of Business features a robust curriculum designed to create business leaders. It also provides the benefits of online learning : You can study from anywhere, on your schedule, without interrupting your professional or personal commitments .

To learn more about the program and the Admissions application requirements , schedule a call with an admissions outreach advisor today.

Retrieved on March 18, 2024, from hbr.org/2021/08/thinking-about-an-mba-heres-how-to-plan-for-it
Retrieved on March 18, 2024, from usnews.com/education/best-graduate-schools/top-business-schools/articles/mba-application-deadlines-when-to-apply-to-business-school
Retrieved on March 18, 2024, from usnews.com/education/best-graduate-schools/top-business-schools/articles/how-much-work-experience-do-i-need-for-mba-programs
Retrieved on March 18, 2024, from fortune.com/education/articles/a-recommendation-letter-can-make-or-break-your-mba-application/
Retrieved on March 18, 2024, from indeed.com/career-advice/career-development/mba-career-goal-essay
Retrieved on March 18, 2024, from usnews.com/education/best-graduate-schools/top-business-schools/slideshows/ways-to-nail-your-mba-admissions-interview?onepage

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Santa Clara University has engaged Everspring , a leading provider of education and technology services, to support select aspects of program delivery.

Interested in one of our online programs? Receive a program brochure.

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College accepts 1,937 to Class of 2028

Students represent 94 countries, all 50 states

Harvard College has accepted 1,937 students to the Class of 2028 from a pool of 54,008 applicants. This marks the fourth consecutive year Harvard has received more than 50,000 applications.

Students accepted during the regular admissions cycle number 1,245. Last December, the College offered admissions to 692 students who applied under the Early Action Program .

“Beyond another strong applicant pool, we are delighted by the stunning array of talents and lived experiences the Class of 2028 will bring with them from throughout the United States and around the world,” said William R. Fitzsimmons, dean of admissions and financial aid.

By the numbers

Nearly 1 in 4.

Undergraduates come from a family whose annual income is $85,000 or less

“Start-up grants” for first-year students and “launch grants” for juniors are given to students whose family incomes are $85,000 or less

$3 billion+

In undergraduate financial aid has been awarded since launching the Harvard Financial Aid Initiative

Of Harvard undergraduates receive financial aid

Average parent contribution for aided students

Of the Class of 2023 graduated debt-free

Members of the Class of 2028, who learned of the decisions Thursday evening, hail from all 50 states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and 94 countries. They are 53.1 percent women and 46.9 percent men. Students who will be in the first generation of their family to graduate from a four-year college or the equivalent represent 20.5 percent of the class. In this application cycle, 20.7 percent qualified for federal Pell grants, typically awarded to students from lower-income backgrounds.

International students make up 15.4 percent of the class, and 9.6 percent are U.S. dual citizens. An estimated 20.1 percent come from the mid-Atlantic states, 16.2 percent from the South, 16.6 percent from New England, 18.5 percent from Western and Mountain states, 11.4 percent from the Midwest, and 0.4 percent from U.S. territories.

Harvard continues efforts to recruit U.S. military veterans, working with groups affiliated with the Defense Department and through Service to School’s Vetlink program. Twenty-one veterans were admitted to the Class of 2028, and 41 students have expressed interest in ROTC.

Members of the admitted class will benefit from the recent expansion of the financial aid program. Last spring , the Griffin Financial Aid Office announced that students whose family income is $85,000 or less will receive full financial support to attend Harvard. It also announced last fall a new launch grant giving students who receive full financial support $2,000 in the fall of their junior year to help with costs associated with preparing for life after graduation. Since 2016, students receiving full financial aid have been eligible for similar startup grants to help them adjust to life on campus.

“We are always thinking about impact, and the new launch grant gives students extra resources — for graduate school test prep, or travel to a job interview — as they begin planning for their next chapters. This support — in combination with the work of the Mignone Center for Career Success — allows us to help the students who need it most,” said Jake Kaufmann, Griffin Director of Financial Aid.

The work to expand opportunities for students accessing financial aid includes the 2020 decision to remove the summer work expectation. Nearly one-quarter of students attend Harvard with no parent contribution. In the 2023-2024 academic year, the average parent contribution for aided students was $13,000.

For students who do not receive need-based aid, the total cost of attendance (including tuition, housing and food, and fees) is scheduled to increase 4.3 percent to $82,866 for the 2024-2025 academic year.

This application cycle benefited from a robust recruitment effort that included students, faculty, staff, and alumni. Admissions officers traveled to 150 cities in the U.S. and around the world to conduct in-person information sessions while more than 7,000 alums helped interview applicants and recruit students through college fairs and other events.

“We often focus on the end results in admissions, but it is also important to acknowledge the tremendous work that goes into getting us here,” said Director of Admissions Joy St. John. “We could not build this talented and diverse pool of applicants without this support.”

Harvard welcomes admitted students to campus for Visitas programming April 14-15. At that time, the Class of 2028 is invited to attend classes and events as well as learn about resources and opportunities. Students will receive information about Visitas and Crimson Connect, an online platform for the Class of 2028, via the Admitted Student Website .

Students have until May 1 to reply to their offers of admission.

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Princess kate video was a new move in the royal pr game: did it work.

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A picture shows the front pages of some of Britain's national newspapers, dominated by stories about ... [+] Britain's Catherine, Princess of Wales announcing her cancer diagnosis, in Amersham on March 23, 2024. (Photo by Justin TALLIS / AFP) (Photo by JUSTIN TALLIS/AFP via Getty Images)

Behind the Royal Words: A Crisis Communication Expert's Take on the Video Statement

After weeks of misinformation about Princess Kate’s health and well-being, the public finally learned the truth.

In a video statement released by Kensington Palace last Friday, the princess herself revealed she was diagnosed with cancer and is in the early stages of treatment. The video signaled a dramatic shift in royal PR tactics. By having the princess address the rumors herself, it marked a shift toward transparency.

Choosing Between Secrecy and Transparency: The Palace's Dilemma

Before the revelation of Princess Kate's major abdominal surgery in January , the palace faced a tough choice. Should they hide or reveal the details? Their carefully worded initial statement hinted at the choice. Phrases like "The Princess of Wales appreciates the interest this statement will generate," and " she hopes the public will understand her desire to maintain normality for her children ,” suggested a PR strategy that leaned towards discretion. This left an obvious tactic on the table for managing public curiosity - spin.

The Consequences of Silence

Providing few details about Princess Kate’s “planned abdominal surgery” and dismissing the public’s interest might have been more effective in a pre-internet era. Yet, the palace’s decision to remain silent quickly fueled the public’s interest. The princess should have a right to privacy. But, is it right to complain about the public asking for the reasons behind the surgery?

The problem with using strategic silence to manage an emerging crisis is that it creates a hole in the plot that allows others to fill. An adage in PR states that if you don’t tell the whole story, the public will tell it for you.

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There’s nothing like a news story filled with secrets and red herrings to stir interest. This story had royal insiders as sources . It had grainy images and videos of Kate published in the tabloids. And, non-committal statements about her progress left too many unanswered questions for the internet to chew on.

The crisis escalated when media outlets debunked a digitally altered Mother’s Day photo of Kate with her children, posted by Kensington Palace. This marked the moment of a complete communication breakdown. Did Princess Kate edit the photo ? Whether she did or not, admitting it only fueled more speculation and distrust.

This situation is a prime example of the risks of obfuscation in crisis management. Although such tactics might provide temporary relief, they destroy the critical element of a good reputation: trust. When you lose it, you’ve lost the PR battle.

Turning the Tide: How Kate’s Video Halted Negativity

Recognizing the mounting negativity likely led to a decisive move. Openness was the only way forward. The vehicle for this message was a candid video produced by BBC Studios and filmed in her garden at Windsor. Dressed casually and maintaining direct eye contact with the camera, Princess Kate's honesty about her diagnosis and treatment not only addressed the speculation but also sparked meaningful conversations about cancer.

Despite some unfounded claims that the video showed signs of artificial intelligence manipulation, its authenticity and impact were undeniable. It struck a delicate balance between revealing personal challenges and preserving privacy. Most importantly, it halted the barrage of negative publicity for the Royal Family. Kate was still the focal point, but now she controlled the narrative. The trust restoration process began as soon as the video ended.

LONDON, ENGLAND - MARCH 22: A screen displays a news report, as Catherine, The Princess of Wales ... [+] announces that she is receiving a preventative course of chemotherapy for cancer on March 22, 2024 in London, England. The Princess of Wales had abdominal surgery earlier this year and has revealed that cancer has subsequently been found. She said she has been receiving chemotherapy and asked for privacy for her and her family. (Photo by Leon Neal/Getty Images)

John Perenack, a public affairs and communications expert who manages high-stakes PR crises with StrategyCorp in Toronto, Canada, commended Catherine's video announcement for helping the Royal Family regain control of the situation. However, he added, "If the Palace had provided some earlier credible updates and avoided leaving such an information vacuum, they could have circumvented weeks of self-inflicted crisis."

Ally Houghton, a marketing coordinator for a community bank in Wakefield, Mass., also praised the video. "After weeks of negative PR, this message was a home run. It showed relatability and vulnerability. Houghton added, “She was simply a mother trying to navigate her illness while protecting her children."

Uncovering a Strategic Key Message in Princess Kate’s Statement

Kate's video explanation may have provided insights into the strategic reasons behind the royal family's initial silence. While the message underscored the importance of privacy, particularly for their children, George, Charlotte, and Louis, another theme in her words hinted at an explanation for why the public was left in the dark.

In January, I underwent major abdominal surgery in London and at the time , it was thought that my condition was non-cancerous.
As you can imagine, this has taken time .
It has taken me time to recover from major surgery in order to start my treatment.
But, most importantly, it has taken us time to explain everything to George, Charlotte and Louis in a way that is appropriate for them, and to reassure them that I am going to be ok.
We hope that you will understand that, as a family, we now need some time , space and privacy while I complete my treatment.
At this time , I am also thinking of all those whose lives have been affected by cancer.

The repetition of the word time in the statement may hint at the reasons behind the palace subterfuge. It may have served as a subtle reminder to the public that time plays a crucial role in cancer diagnosis and crisis management.

With Kate’s video release, Kensington Palace and the public were now in agreement - it was about time.

The Gist: Managing Expectations and Restoring Trust

The royal family's handling of Princess Kate's health crisis marks a big change in crisis communication. Organizations now see the importance of managing public expectations with openness and speed. The shift away from reticence towards a more open dialogue is illustrated in Princess Kate's candid video. It shows the critical balance between privacy and public curiosity.

The shift to addressing the speculation about Kate's health, not only fixed the immediate crisis but also bolstered their trust with the public. This pivot was as strategic as it was necessary. The move towards transparency, set against the backdrop of the digital era's demand for openness, offers lessons on the value of honesty in building and keeping public trust.

What to Watch For Next

The spotlight now shifts to Buckingham Palace. How will it handle questions surrounding King Charles' cancer journey? Will the royal family keep using the updated crisis playbook of being openness and honest? Or will they return to keeping it in the shadows?

LONDON, ENGLAND - FEBRUARY 21: In this photo released on February 23, King Charles III reads cards ... [+] and messages, sent by well-wishers following his cancer diagnosis, in the 18th Century Room of the Belgian Suite at Buckingham Palace on February 21, 2024 in London, England. Following the announcement of the King's cancer diagnosis, the Correspondence Team at Buckingham Palace have received more than 7,000 letters and cards form across the world. The King has been sent a selection in his daily red box of paperwork. (Photo by Jonathan Brady - Pool/Getty Images)

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Governor Newsom Announces Contract to Install 480 New High-Tech Cameras in East Bay to Improve Public Safety

Published: Mar 29, 2024

WHAT YOU NEED TO KNOW: California is installing a network of 480 high-tech cameras in Oakland and the East Bay to aid law enforcement in identifying vehicles linked to crimes using real-time information and alerts.

OAKLAND — Building on public safety investments in Oakland and the East Bay, Governor Gavin Newsom today announced the California Highway Patrol (CHP) has entered into a contract with Flock Safety to install a network of approximately 480 high-tech cameras in the City of Oakland and on state freeways in the East Bay to combat criminal activity and freeway violence. The camera network will use a patented technology that allows law enforcement agencies to identify vehicle attributes beyond license plate numbers, enabling the CHP, the Oakland Police Department, and allied agencies to search for vehicles suspected to be linked to crimes and receive real-time alerts about their movement.

WHAT GOVERNOR NEWSOM SAID: “This investment marks another step forward in our commitment to bolstering public safety and tackling organized crime and roadway violence in Oakland and across California. With the installation of this 480 high-tech camera network, we’re equipping law enforcement with the tools they need to effectively combat criminal activity and hold perpetrators accountable — building safer, stronger communities for all Californians.”

“Improving public safety and addressing quality of life issues in Oakland is my top priority,” said Oakland Mayor Sheng Thao. “ This new camera network will help us stop crime and hold more suspects accountable. On behalf of all Oaklanders, I want to thank the Governor and the California Highway Patrol for their ongoing commitment and investments in the city.”

“Working alongside all our law enforcement partners, the California Highway Patrol is committed to ensuring the safety and security of all Californians,” said CHP Commissioner Sean Duryee . “These sophisticated cameras will make an important difference — and make the entire East Bay region safer.”

Governor Newsom Announces Flock Cameras in Oakland

The partnership with the city will result in the deployment of approximately 480 crime-fighting cameras. 290 of the cameras are expected to be deployed on and around surface streets in the City of Oakland and 190 cameras will be deployed along state highways in the East Bay. The camera network allows for improved vehicle recognition, enabling law enforcement to search for crime-linked vehicles by vehicle type, make, color, license plate state, missing/covered plates, and other unique features (e.g., bumper stickers, decals, and roof racks). The system also enables real-time crime alerts, alerting authorities when a suspected crime-linked vehicle is spotted by the network.

The cameras will assist law enforcement in addressing crime while protecting privacy interests — improving public safety while balancing privacy protections. The network will employ a limited 28-day retention period, camera footage will not be disclosed to third parties beyond California law enforcement, and the network will be compliant with recent legal bulletins issued by the California Department of Justice to ensure the storage, collection, sharing, and use of the data is consistent with California law.

HOW WE GOT HERE: Today’s announcement builds on Governor Newsom’s efforts to improve public safety in the East Bay, including through a temporary CHP surge operation and increased enforcement focused on combating auto theft, cargo theft, retail crime, violent crime, and high-visibility traffic enforcement, which has resulted in the recent arrests of approximately 200 suspects and recovery of 400 stolen vehicles. In addition to increasing CHP’s presence, last month the Governor also announced a new partnership between the Governor’s Office, the California Department of Justice, the California National Guard, the California Highway Patrol, and the Alameda County District Attorney’s Office (ACDAO) that will result in the deployment of attorneys and resources to boost law enforcement capacity to investigate, analyze, and prosecute suspects in violent, property, and serious drug-related crimes.

INVESTING IN OAKLAND: The Governor recently released Caltrans’ 10-Point Action Plan in support of the city’s efforts to improve street safety and beautification. The comprehensive plan outlines actionable steps the state is taking to further support the city through blight abatement efforts, homeless encampment resolutions, community outreach initiatives, employment opportunities, and other beautification and safety efforts. A detailed overview of the state’s investments in Oakland and Alameda County is available here .

FIGHTING CRIME: California has invested $1.1 billion since 2019 to fight crime, help locals hire more police, and improve public safety. Earlier this year, Governor Newsom called for new legislation to expand criminal penalties and bolster police and prosecutorial tools to combat theft and take down professional criminals who profit from smash and grabs, retail theft, and car burglaries. In 2023, as part of California’s Real Public Safety Plan , the Governor announced the largest-ever investment to combat organized retail crime in state history, an annual 310% increase in proactive operations targeting organized retail crime, and special operations across the state to fight crime and improve public safety.

B-roll footage of CHP’s operations is available for download and use by the media here .

Michigan mom, son awarded $120M in malpractice lawsuit over delayed C-section

A Wayne County jury awarded a mother and her 13-year-old son $120 million in a medical malpractice lawsuit against Henry Ford Health System. The family's lawyers contended the boy suffered brain damage when an attending obstetrician and four nurses didn't perform a timely Caesarean section on his mother.

The health system said in a statement it plans to appeal.

Kirsten Drake and her son, K'Jon, are plaintiffs and the Michigan Department of Health and Human Services is an intervening plaintiff in the lawsuit filed in the Circuit Court in 2020. The Drakes' attorney said in a release that the state joined the case because of the "exorbitant cost" it has incurred for medical care for the boy.

"When a fetal monitor indicates 'non-reassuring heart tones' it is a call to action and time is of the essence to prevent the kind of injury this child suffered," attorney Brian McKeen, one of the attorneys representing the Drakes, stated in the release. "It is outrageous that there was a more than two-hour delay for something that needs to be performed urgently.

"This child will need medical and home care for the rest of his life, and while we cannot give him the quality of life he would have had but for this injury, we can only hope to give his additional therapies and services to help him deal with his disabilities and protect from the possibility of an early demise," McKeen said. "This injury should have never happened. It was foreseeable and entirely preventable. We hope this verdict serves as a reminder to the obstetrical community that they should act expediently in the presence of non-reassuring fetal monitor patterns."

A two-hour delay

Henry Ford Health System said in a statement: "At Henry Ford Health, our patients are family, and we've been deeply saddened for the Drake family since the birth of their son more than a decade ago. At the same time, we do not believe the verdict is consistent with the facts of this case and plan to vigorously appeal the jury's verdict. Given the ongoing nature of the case, we are not able to provide any additional comment at this time."

McKeen told the Free Press on Tuesday that he is disappointed the health system plans to appeal. He said it "should have stepped up to the plate and resolved this case to begin with" and should do so now, after a clean trial, to give the boy the care he needs.

The verdict came March 28 after a trial that started March 4, according to online Circuit Court records.

The Detroit mother, then age 20, arrived at Henry Ford Hospital in Detroit in June 2010, at term, but not near delivery, per the release from McKeen's office. Sometime after she was admitted, the fetal monitor indicated "non-reassuring fetal heart tones" and a C-section was called for.

But the procedure was delayed more than two hours, it stated, with the boy suffering severe asphyxiation resulting in cerebral palsy and permanent brain damage.

The Drakes' attorneys, in a summary, wrote that K'Jon was not born until two hours and 19 minutes after the C-section was called for.

'Nothing was done with any sense of urgency'

"This was an unnecessary and egregious delay that needlessly endangered K'Jon's health," they wrote in a summary.

"K'Jon suffered through a very prolonged and difficult neonatal period and unfortunately he was left with severe and permanent brain damage. HFH is being sued for their negligent failure to provide appropriate obstetrical careresulting in severe cerebral palsy and severe developmental delay."

The Drakes' attorneys stated in their summary that Kirsten Drake was more than 39 weeks along in her pregnancy, that K'Jon was well-oxygenated and had not suffered brain damage when she arrived at the hospital.

After admission, however, "the fetal monitor began to show decelerations due to cord compression and decreased variability. Decreased variability should raise concern about fetal hypoxia if delivery is delayed that might lead to acidosis."

The attorneys wrote that "nothing was done with any sense of urgency. The defendants' lack of expediency was a breach of the standard of care."

"Currently, K'Jon suffers from severe brain damage/cerebral palsy and has a seizure disorder. He is non-verbal. K'Jon needs to wear leg braces and utilizes a wheelchair. His vision is extremely limited. K'Jon is completely dependent upon his mother and grandmother. In sum, the injuries and damages are catastrophic," the Drakes' attorneys wrote in the facilitation summary.

K'Jon's grandmother has been paid a small amount by the state for the care, but "nowhere near the going rate," they wrote.

Family hopes for house better-suited for needs

"Transporting K'Jon is a challenge. Even the shortest trip entails planning. As K'Jon grows this will become more difficult, as will be bathing. Kirsten worries constantly about the future and whether she will be able to take care of K'Jon as she gets older."

The summary states the family would like to hire professionals to provide K'Jon therapy and home care, but can't afford to do so, as well as build a house with more space that is better equipped to meet his needs. It states K'Jon may live into his 50s, if not beyond.

McKeen said there are no handicap-accessible features in the family's home.

The verdict form identifies more than $517,000 in past economic damages for medical expenses up to the present for K'Jon, of which more than $242,000 was paid by the Michigan Department of Health and Human Services .

Past noneconomic damages for pain and suffering and denial of social pleasures and enjoyments the boy has sustained is listed as $1.25 million on the verdict form.

The remainder of the verdict form lists, by year or partial year, K'Jon's estimated economic damages for medical expenses through 2065; future damages for economic loss for wage earning capacity from June 2028, when he would turn 18, through 2077; and future noneconomic damages for pain and suffering, mental anguish and denial of social pleasures and enjoyments through 2065.

McKeen said the statute of limitations to sue is two years for most cases, but 10 years for injuries at birth.

This is believed to be one of the larger jury verdicts in Michigan.

In 2018, McKeen represented a family in an Oakland County case where a jury awarded the family more than $130 million in damages in a medical malpractice lawsuit filed against Beaumont Hospital after a child sustained severe brain damage, resulting in cerebral palsy, while receiving care at its Royal Oak facility.

Contact Christina Hall: [email protected]. Follow her on X, formerly Twitter: @challreporter.

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Template- Affidavit for Admission and Denial of Documents-converted - Free download as PDF File (.pdf), Text File (.txt) or read online for free.
Commercial Courts Act, 2015
Admission and denial of documents.-. (1) Each party shall submit a statement of admissions or denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court. (2) The statement of admissions and denials shall set out explicitly, whether ...
Practice and Procedure Relating to Proof of Documents
Objections to exhibition of documents are of two basic types and are indicated in the admission and denial statement exchanged between parties once a compilation is tendered to the opposite party. There can be an objection/denial of the very existence of the document and secondly an objection/denial of the truth of contents of the documents.
The Effect on filing of Written Statements without affidavit of
Rule 3 of Chapter VII of the DHC Rules, 2018, deals with the procedure for filing an affidavit of admission/denial of documents along with the written statement. The rule stipulates that such an affidavit must be filed simultaneously with the written statement, failing which the written statement will not be accepted for recording.
Admission & Denial Of Documents In Suits
With the introduction of the Commercial Courts Act, the parties to the dispute were required to file a Statement of Admission/Denial of Documents alongside their respective pleadings. Order XI ...
Written Statement Will Not Be Taken On Record If Not Accompanied By
The Delhi High Court on May 15, 2019, in the case of Unilin Beheer B.V. v. Balaji Action Buildwell has held that it is mandatory to file an affidavit of admission or denial with a written statement. In case of failure, the Court will not take the statement on record and the contested documents filed by the plaintiff would be admitted by the Court.
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Denial by Affirmative Statement. The denial of an allegation in a complaint need not be negative in form: An affirmative statement that directly contradicts an allegation in the complaint, or is inconsistent with it, is equivalent to a specific denial. ... that would permit a positive denial or admission. Also, denial on information and belief ...
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admission and denial. But applicants frequently fail to do justice to themselves in statements of purpose. In what follows, I offer a few tips to help you to make your best effort. Your statement should clearly have the purpose it's supposed to have. That sounds too obvious to be worth saying, but many statements fail on this elementary ...
10 Fundamental Principles: The Code of Civil Procedure, 1908
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Ram Sarup Lugani & Anr. vs Nirmal Lugani & Ors. on 19 October, 2020
"Written statement and affidavit of admission/denial of documents filed on behalf of defendants no.1 to 6. Copy supplied. No replication to the written statement filed. Learned counsel for plaintiff has submitted that he is going to file replication within two weeks along with appropriate application, but same is strongly opposed by learned ...
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"What Is the Difference Between a Non-admission and A Denial" ? a
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Civil Procedure Back to Basics 12: the Difference Between a Non
The difference between an admission and denial was explored in detail by Mr Justice Bean in Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB) In the Dil case the claimants brought a case alleging that the defendant had acted unlawfully in allowing undercover police officers to enter into sexual ...
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For reference, Federal Rule of Civil Procedure (FRCP) 8(b)(1)(B) requires a civil defendant to "admit or deny the allegations asserted against it by an opposing party" and rule 8 (b)(2) requires that "A denial must fairly respond to the substance of the allegation." Nothing in those rules seems to make an exception for "conclusions of law," though individual Courts can make their own rules ...
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The denial is evasive and the learned judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted. ... The appellant in a futile attempt to hold the above statement as admission, claimed that, in the ...
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Governor Newsom Announces Contract to Install 480 ...
OAKLAND — Building on public safety investments in Oakland and the East Bay, Governor Gavin Newsom today announced the California Highway Patrol (CHP) has entered into a contract with Flock Safety to install a network of approximately 480 high-tech cameras in the City of Oakland and on state freeways in the East Bay to combat criminal activity and freeway violence.
Michigan mom, son awarded $120M in malpractice lawsuit over C-section
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How to Draft, File, and Serve an Answer to an Unverified Complaint

Step 1: Understand the Purpose of an Answer

Step 2: Consider Alternative Strategies

Step 3: Identify the Filing Deadline

Step 4: Determine Whether an Extension is Necessary

A. General Denial

B. Specific Denials

C. Denials Based on Information and Belief or Lack of Information or Belief

1. Denial Based on Information and Belief

2. Denial Based on Lack of Information and Belief

A. Objections

B. Affirmative Defenses

A. Caption; Opening Paragraph

B. Body of Answer

2. Objections and Affirmative Defenses

3. Incorporation by Reference

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Stages of Civil Suit Under Civil Procedure Code, 1908

STAGES OF CIVIL SUIT

3. Appearance of the Party

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8. List of Document relied by the Party

9. Discovery and Inspection

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