Doctrine of Non Traverse : The Concept Explained

Justice V.B. Gupta of the Delhi High Court has enunciated the 'Doctrine of Non-Traverse' in his judgment in Smt. Asha Kapoor v. Sh. Hari Om Sharda . The extract of the judgment is given below;

16. Order VIII Rule 3, 4 and 5 of the Code of Civil Procedure (for short as Code) read as under;

"3. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the ground alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

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

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 fact 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. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]"

17. The effect of Order 8 Rule 3 read along with rr 4 and 5 of the Code is that, defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order 8 Rule 5 of the Code.

18. Order 8 Rule 5 of the Code is known as doctrine of non-traverse which means that where a material averment is passed over without specific denial, it is taken to be admitted. The rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation should taken to be admitted.

19. Supreme Court in M. Venkataraman Hebbar (D) By L.RS. Vs. M. Rajgopal Hebbar & Ors. 2007 (5) SCALE 598, observed;

"Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved."

Naik Paranjpe secures relief for Big Boss

Source : Sify.com

Viacom 18, which owns Colors channel has challenged the Central Government's decision to restrict the airing of the TV show 'Bigg Boss' only between 11 PM and 5 AM in the Bombay High Court.

On Thursday, it won a reprieve and the show will not have to move to the 11 pm slot for now.

Colors, which moved the court this morning, said: "No date has been mentioned as to when the show was against good taste and decency. The channel also said that its content cannot be described as obscene."

"The show has been on for one and a half months, what is the urgency suddenly?" asked Colors in court.

The channel further accepting that the government has the power to force a schedule change, said the advertisement commitment and content would have to be changed in that case.

Faced with mounting complaints from TV viewers and women outfits about objectionable contents, the Government had on Wednesday ordered channels airing TV shows 'Big Boss' and 'Rakhi ka Insaaf' to broadcast them only between 11 PM and 5 AM, virtually bracketing them as only for adult viewing.

"Both shows are not for universal viewing and can be aired only in the scheduled time slot," said Ministry of Information and Broadcasting officials.

While 'Big Boss' is being aired on Colors, 'Rakhi ka Insaaf' is aired on NDTV Imagine.

The decisions were reportedly taken at an inter-ministerial meeting represented by Additional Secretaries from the Ministry of Home, Women and Child Development, External Affairs and Information and Broadcasting.

Senior counsel Aspi Chinoy was instructed by Naik Paranjpe partner Ameet Naik in the writ petition filed before the Bombay High Court.

Delhi HC issues notices to Centre and Delhi Government to prosecute Arundhati Roy

Arundhati Roy

Source : Indlaw.com

The Delhi High Court has issued notices to the Centre and the Delhi government on public interest litigation, seeking directions to the governments to prosecute noted writer Arundhati Roy for her alleged seditious remarks on Kashmir made at a public function last month. 

Petitioner Salekchand Jain, through his counsel Sugrive Dubey, urged the court to direct the two governments to prosecute Ms Roy under the Prohibition of Seditious Meeting Act, 1911, and section 121 (waging and attempting to wage war or abetting the waging of war against the government of India) of the Indian Penal Code. 

Taking the petition on record, Justice Hima Kohli directed the respondents to file replies to the petition by January 23. 

The petitioner alleged that the writer had committed a crime under the Act and the IPC by making remarks on Kashmir at a seminar in the national capital last month. 

He said since the Union government had failed to take any action against her, it was the duty of the judiciary to step in and rein such people for making seditious statements. 

Another such petition in which Kashmiri separatist Syed Ali Shah Geelani is also named along with Ms Roy as an accused for making ‘anti-India’ remarks is pending in the Patiala House Court.

2G Spectrum Scam : SC directs Union Government to file affidavit

Supreme Court

Source : Indlaw.com

Solicitor General of India Gopal Subramanium today defending Prime Minister Manmohan Singh in the Supreme Court claimed that the Prime Minister has maintained high propriety in all communications including Janata Party leader Subramanian Swamy’s letter.

Dr Swamy submitted before a bench comprising Justices G S Singhvi and A K Ganguly that some senior officials may be permitted to file an affidavit on behalf of the Prime Minister. 

The apex court directed the government to file by Saturday an affidavit on behalf of the Prime Minister giving details of all communications between the Prime Minister and Dr Swamy. 

The apex court told the Solicitor General ‘It is an extremely serious matter and all submissions made so far are only oral and therefore, you should file an affidavit so that if ultimately it is found that something important has been kept back, the record should speak.’ The Supreme Court adjourned till Monday the hearing of the two petitions in the Rs 1.76 lakh crore 2G Spectrum scam in which former Communications minister A Raja is the main accused. 

Dr Swamy had written to the Prime Minister in November 2008, seeking sanction for the prosecution of Mr Raja under the Prevention of Corruption Act. 

PMO responded to the letter after about 15 months on March 10,2010 and the CBI registered a case in September 2009 against an unknown person. 

Dr Swamy has been given time till Saturday to respond to the affidavit of the government. 

Dr Swamy had sent another letter to Prime Minister yesterday demanding that security of Raja be stepped up as he faces threat to his life from a Dubai based hitman and has expressed the apprehensions that he may be silenced forever for being in possession of sensitive information on the scam.