An unrecorded admission can yet haunt a party | Daily News

An unrecorded admission can yet haunt a party

The defendants in a case in the District Court of Kandy in filing their answer to the plaintiff’s plaint specifically contested certain averments. However it so transpired that in a separate affidavit they had admitted the same facts that they had pleaded they were unaware of, in the answer. That affidavit dealt with the issue of an interim injunction.

The plaintiff’s Counsel submitted in Court that what’s admitted in an affidavit cannot later be contested in an answer. The learned DC Judge agreed with the submission of the defendant however, and made an order that the facts in issue cannot be recorded as admissions. This order was appealed in the Court of Appeal by the plaintiff. (Sivaratnam and Others v. Dissanayake and Others - SLR - 144, Vol 1 of 2004 [2004] LKCA 16; (2004) 1 Sri LR 144 (January 16, 2004).)

The Court of Appeal judgement record states:

“This is an application for leave to appeal against the decision of the learned Additional District Judge of Kandy refusing to record a fact, contained in an affidavit filed relating to the same action, as an admission recorded at the commencement of the trial. The plaintiffs have filed action against the defendants for a declaration of their title to the property described in schedules A and B of the plaint and the other relief claimed by the plaint including an interim injunction. The defendants have filed their objections, supported by affidavit to the granting of an interim injunction. In their affidavit the defendants have stated that they admitted the facts set out in paragraphs 2-6 of the plaint.

When the trial was to be taken up the plaintiff's counsel moved Court to record that the facts set out in paragraphs 2-6 of the plaint have been admitted. The learned counsel for the defendants has pointed out that the defendants in their answer have specifically stated that they were unaware of the facts set out in paragraphs 2 and 3 of the plaint and that the plaintiffs should specifically prove the truth of those facts. The learned counsel for the plaintiffs has submitted that the admission made in the affidavit could not be withdrawn and accordingly the admission contained in the affidavit must be recorded as an admission at the trial. He has relied on the decision in Uvais v Punyawathie.”

The judge had, making his order, held that what is being asked for is tantamount to a withdrawal of an admission. Learned Appeal Court judges went into the legal minutiae of when admissions can be withdrawn and when they cannot. The position taken by the learned judges of the Appeal Court was that some admissions can be withdrawn with the consent of the Judge.

The case record further states:

“An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact which is made by a party to the action or by someone identified with such party in legal interest. In terms of section 21 of the Evidence Ordinance, admissions are relevant and may be proved as against the person who makes them or his representative in interest. According to section 31 of the Evidence Ordinance, admissions are not conclusive proof of the matters admitted, but they may operate as estoppels.”

An admission is not in any event conclusive proof of any matter but can act as an estoppel, meaning of course that once a fact is admitted on a matter the party admitting cannot later take a position contrary to what was admitted even though what’s admitted can be contested and is not considered conclusive proof.

The Appeal Court judgement further notes:

“If a defendant wishes to resist the action filed by the plaintiff, the defendant has to file his answer, prepared in accordance with section 75 of the Civil Procedure Code. Section 75(d) enacts that the answer shall contain a statement admitting or denying the several averments in the plaint. This rule is imperative. A defendant’s failure to deny an averment in accordance with the requirement in section 75(d) of the Code must be deemed to be an admission. Fernando v Samarasekara. If interrogatories are served in terms of section 94 of the Code, the answers to such interrogatories may also contain admissions. An admission made in response to a notice to admit genuineness of documents given under section 101 of the Code is also a formal admission.”

Any averment made in the plaint if not specifically denied by the defendant in answer is by default taken to be an admission of the averment made in the plaint. However in the case under review the averment made by the plaintiff was specifically contested in the answer filed, stating that the defendant is not aware of such a matter as has been averred.

The judges were keen to state that just because the particular issues under scrutiny are not admitted, they can still be pursued vigorously. The judgement noted that it is up to the plaintiff to use the affidavit to impugn the credibility of what the defendants have not admitted. The fact that there was no admission recorded does not preclude the plaintiff from doing so.

Incidentally the affidavit was provided when an interim injunction was considered against the defendant in the same case. So the swearing of the affidavit had been in totally different circumstances i.e not strictly as part of the current legal proceedings per se.

The judgement states:

“It appears to me that this leave to appeal application has been made on the assumption that the learned Judge's ruling has the effect of wiping out the evidentiary value of the admission made in the defendant's affidavit. But the learned Judge's ruling does not have such far reaching effects. The effect of the ruling is only confined to the refusal to take the admission into consideration for the purpose of recording admissions. The ruling does not debar the plaintiffs from using the contents of the affidavit according to the rules of evidence. They are entitled, if they are so advised, to formally mark the affidavit in evidence at the trial through the Justice of the Peace who attested it. They may also use the affidavit as a former statement to impeach the testimony of the defendants at the time they give evidence at the trial.”

Fernando, J.'s judgement in Uvais vs. Punyawathi (1993 2 SRI LR 46) makes it very clear that what is not permitted is the withdrawal of an admission in circumstances “where such withdrawal has the effect of subverting the fundamental principles of the Civil Procedure Code in regard to pleadings and issues.” That judgement is not authority for the broader proposition that an admission once made cannot be withdrawn at all, Court held. The law's refusal to allow the withdrawal of an admission is a matter depending on the circumstances of each case.

For all reasons stated above, the refusal of the learned DC Judge to record the admissions proposed by the plaintiffs was correct in law, it was held. Leave to appeal was refused. The application was dismissed with costs set at Rs. 2,500.


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