SOYSA
VS.
FERNANDO AND OTHERS

COURT OF APPEAL
WIMALACHANDRA, J
ERIC BASNAYAKE, J
CALA 65/2002/(LG)
DC MT LAVINIA 963/97/L
1ST SEPTEMBER, 2004.

Declaration of title - Ejectment of licensee - Defendant claiming tenancy- Title of plaintiff admitted -Amended answer- Denies title - Rejected by trial Court-Affirmed by Supreme Court- Proceeding before new Judge - Same admissions recorded­Defedand objected - New trial ordered - Validity? Civil Procedure Code - Section 72, Section 150 - Evidence Ordinance - Section 58 - No requirement to record what is already admitted in pleadings? -Admissons?

Held:

(1) As the defendant has admitted the plaintiff's title he cannot be allowed to deny the title at the trial.

(2) There is no requirement to record what is already admitted in the pleadings. This whole case can be decided on admissions. If the defendant admits the claim Court shall give judgment against the defendant according to the admissions so made.

(3) Once an admission is made he should stand by it. Admissions on questions of fact cannot be withdrawn.

APPEAL against an order of the District Court of Mt. Lavinia.

Cases referrd to:-

(1) Mariammai vs. Pethrupillai - 21 NLR 200
(2) Uvais vs. Punyawathi - 1993 2 Sri LR 46

Manohara de Silva PC with David Weeraratne for plaintiff- petitioner
A.K. Premadasa PC with C.E. de Silva for defendant - respondent.

June 19, 2007
Eric Basnayake, J

The Plaintiff filed this action inter alia for a declaration of title and ejectment on the basis that the plaintiff was the owner and defendants were licensees and the license was withdrawn. The defendants did not dispute the plaintiff 's title. However the defendants claimed tenancy. When this case was taken up for trial in 1.12.1999 the defendants admitted paragraphs 2, 3 and 5 of the plaint wherein the plaintiff's title is set out. On 24.4.2000 the defendants filed an amended answer. In the amended answer the defendants denied all the paragraphs in the plaint and claimed ownership to the land on the basis of prescription. The court after inquiry disallowed the amended answer. The defendant appealed against this order to the Court of Appeal and to the Supreme Court unsuccessfully. Thereafter this case was taken up in the District Court before a new Judge. The same admissions that were recorded earlier namely in 1.12.1999 were recorded. The defendants objected to this. This court after inquiry on 11.2.2002 up held the objection and decided to commence the trial de­novo. The plaintiff filed this application to have the said order of the learned District Judge set aside.

The learned President's Counsel appearing for the defendant submitted that there is no provision in the Civil Procedure Code to compel a party to admit to matters. He also admitted that matters of facts or law can be admissions only if the parties agree to have them recorded as admissions. What the learned President's Counsel suggests is that one may admit in the answer an averment in the plaint. However at the trial unless the party is willing to have it recorded as an admission, it should not be so recorded.

The Explanation 2 to section 150 of the Civil Procedure Code is as fallows:-

" The case enunciated must reasonably accord with the parties pleadings i.e.plaint or answer, as the case may be, And no party can be allowed to make at the trial a case materially different from that which he has placed on record, and which his opponent is prepared to meet. And the facts proposed to be established must in the whole amount to so much of the material part of his case as, is not admitted in his opponents pleadings"

In this case the defendant admitted the plaintiff's title. therefore he cannot be allowed to deny the title at the trial. Section 58 of the Evidence Ordinance

states thus that no facts need be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing, or they agree to admit by an