Author Name:   shraddha ojha

this article is based on in depth analysis of section 58 of the Indian Evidence Act, 1872...

Facts Admitted by the Party Need Not Be Proved

Facts admitted need not be proved - No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, 2. before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings;

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission. Research problem what are the facts which doesn’t need to be proved…. Explain your section…. Cases….. conclusion………

Principle
This section conveys the principle that what is admitted need not be proved. The court has to try the questions on which the parties are at issue, not those on which they have agreed. Admissions are of two kind, viz.

1) Formal admissions, (judicial admissions), and

2) Informal admissions, (extrajudicial admissions).

Section 17 contains informal admissions or extra judicial admissions which are made by the parties outside the course of judicial proceedings.

This section is concerned with formal admissions or judicial admissions i.e., admissions during trial, either at or before the hearing. The advantage underlying this section is that the normal procedure of proving the facts need not be followed and thereby precious time and expense is saved.

For example, A institutes a suit against B for recovery of a sum of Rs. 1,000/- alleged to be borrowed by B on a promissory note. B admits his liability at the hearing. A need not prove the execution of promissory note in view of B’s admission of the fact.

Section 58 classifies the judicial admissions, which require no proof into the following:-
1) Facts which parties or their agents agree to admit at the hearing.
2) Facts which before the hearing they agree to admit in writing, and
3) Facts, which they are deemed to have admitted by rule of pleadings.

1) Facts which parties agree to admit at the hearing:
Facts, which any party at the time of the hearing requires no proof and relieves the opposite party of the responsibility of proving such facts. However the expression “at the time of hearing” as used in this section do not imply at the first hearing when issues are framed. For the purpose of proving such an admission, recording of the admission by the judge may be proved.

Where the party has admitted the facts during the course of a litigation, the facts admitted need not be proved.

2) Facts which the parties agree to admit in writing before the hearing:
In order to bring the admissions made before hearing under this section it must have been reduced to the form of writing. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram, for a three judge bench of the apex court has held,

“……. Admissions, if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under section 58 of the evidence act, made by the parties or their agent at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions is fully binding on the party that makes them and constitutes a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions, which are receivable at the trial as evidence, are by themselves, not conclusive. They can b shown to be wrong.”

Since pleadings include both plaint as well as written statement, the decision, in Nagindas Ramdas, makes it clear that an admission, in the pleadings, or judicial admissions in the pleadings or judicial admissions are fully binding on the party, which makes such an admission, and constitute waiver of proof thereof. The admission in the pleadings or judicial admissions would obviously include both express admission as well as implied admission.

In the backdrop of the decision in Nagindas Ramdas and Lohia Properties Pvt. Ltd., when the decision, in Modi Spinning and Weaving Mills Co. Ltd. Is carefully analyzed, there remains no escape from the conclusion that ven an implied admission, made in a written statement, is binding on the party making the admission, such admission constitute waiver of proof and cannot be allowed to be withdrawn by way of amendment of the written statement, particularly, when the admission seeks to displace a plaintiff from the admission made by the defendant in his written statement. In M/s. Mahendra Radio and Telivision, Meerut v. State Bank of India, and Gobinda Sahoo v. Ram Chandra Nanda, lay down that an admission, made inadvertently or erroneously due to fault of an Advocate can be allowed even if the effect of such an amendment is to take away the admission made.

The question, therefore, is as to what remedy a defendant has when a wrong instruction or lack of instruction of his counsel lead to implied admission. Sufficient light, on this aspect of law, is thrown by the decision in Badat and Company, for this decision show that ordinarily, the pleading should strictly construed and an implied admission shall not be, ordinarily, required to be proved by adducing evidence.

What is important to note is that the proviso to rule 5 gives to the court the power to insist that notwithstanding the fact that there is an implied admission, because of non- traversing of a fact, the plaintiff proves his statement by adducing evidence. The exercise of this discretion cannot be arbitrary and the court may have to bear in mind the standard of drafting obtaining at the place, where the suit is instituted.

3) Facts which the parties are deemed to have admitted by the rules of pleadings:
‘pleadings’ means plaint or written statement and an admission in pleadings means the admission of an averment by the opposite party. But a denial, in general terms imposes on the plaintiff an specifically alleged by a party in a plaint and are not denied by the other party, the party who fails to deny is deemed to have admitted the facts, which are alleged in the plaint. Order VIII, Rule 5 of CPC says that every allegation of fact in the plaint, if not denied specifically or by necessary implications should be taken to be admitted except as against persons under disability.

Facts admitted by a party in a pleading are admissible against him without proof, but however, where he takes recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission.

It is interesting to note that in Modi Spinning and Weaving Mills Company Ltd. And another v. Ladha Ram and Co., apex court opined that when an admission has been made in the pleadings, even an amendment thereof would not be permitted.

In Panchdeo Narain Srivastav v. Km. Jyoti Sahay and another, it has been held that an admission made by a party can be withdrawn and explained away; but court may notice that subsequently a division bench of apex court distinguished the said decision in Heeralal v. Kalyan Mal and others.

The effect of an admission in the context of section 58 of the Indian Evidence Act has been considered by Apex Court in Sangramsinh P. Gaekwad and others v. Shantadevi P. Gaekwad (Dead) through LRs. And others, wherein it was categorically held that the judicial admission by themselves can be made the foundations of the rights of the parties and admission in the pleadings are admissible proprio vigore against the maker thereof.

Recently apex court in Baldev Singh and others v. Manohar Singh and another etc., held:
Let us now take up the last ground on which the application for amendment of the written statement was rejected by the high court as well as the trial court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by high court as well as the trial court. After going through the pleadings and also the statement made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in there application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is not well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleading so a s to alter materially or substitute his cause of action or the nature of his claim has necessarily no counter part in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of

amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in latter case.”

While laying down the principle, apex Court followed Modi Spinning and Weaving Mills Co. and distinguished Hira lal.

It is thus, evident that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of the reference made by the appropriate government as also in view of the fact that an industrial adjudication derives his jurisdiction from the reference only.

There is another aspect of the matter which should also not be lost sight of. For the purpose of exercisiong jurisdiction under section 10 of the 1970 act, the appropriate government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of materials placed before it by the workman and/ or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of material that a notification under section 10(1)(d) of the 1947 act be issued, although it stands judicially determine that the workmen were employed by the contractor. The state exercises administrative power both in relation to abolition of contract labour in terms of section 10 of 1970 act as also in relation to making a reference for industrial adjudication to a labour court or tribunal under section 10 (1)(d) of the 1947 act. While issuing a notification under the 1970 act, the state would have to proceed on the basis that the principle employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of the appointment of the contractor would itself be an issue as the state must prima facie satisfy itself that there exist a dispute as to whether the workmen in fact not employed by the contractor but by the management.

Other Provisions
Admission Made By the Agents of the Parties
Any admission made by an agent under section 58 is binding on the party on whose behalf he makes. An admission thus made by the counsel who is the duly authoised agent of the party can be proved against such party. However an erroneous admission by a counsel on a point of law does not bind the party.

Claim For Treatment
So far as the statement of the appellant that he informed the corporation that the portion was let to appellant was concerned. It was observed by the First Appellate Court that the appellate was not asked in cross examination as to why he had so informed the corporation and that, in any event, the letter dated 1.3.1974 executed by the appellant and other evidence showed that the real relationship of the appellant in respect of the room was as paying guest. These findings arrived at by the appellate court are findings of fact and were not liable to be interfered with the high court under article 226 of the constitution of India. In fact, in AIR 1987 SC 1771, a letter in which there was an admission that the person was occupying as ‘paying guest’ was held binding on the parties under the Bombay Act,1947. So far as the contention of the appellant that the respondent informed the corporation in tax proceedings that the appellant was paying rent Rs. 200/- per month court may state the said statement even it true stood rebutted by the appellant's letter dated 31. 3. 1974 admitting he was in possession as a paying guest.

Evidence made in affidavit unless explained furnishes best evidence
It is settled principle of law that an admission unless explained furnishes best evidence and since there is no explanation even after opportunity being given this admission in affidavit is conclusive proof of formation of partnership and retirement of defendant as partner from the firm.

Partition of Jointly Armed Property
The decision of the supreme court reported in AIR 1954 SC 526, is of no avail to the defendants in the face of all the admission made. Even according to the defendant No. 1 himself at least the ownership of flat No. 32 by the deceased is admitted. It appears that the defence put forward by the defendant No. 1 is lacking in bona fides. In Sri Chand’s case defendants case cannot be used to strengthen the case of the plaintiffs. The aforesaid proposition is not at all applicable in the facts and circumstances of this case. For the past many years defendant No. 1 has been treating the deceased as part of the joint family. The defense now taken are merely an attempt to avoid the admissions made earlier.

Proof of title/ possession
Since the presumption raised by revenue records is rebut table hence the transfer title rebutted by plaintiff title has to be proved by instrument executed by owner in favour of alienee.

Proof of will
In the instant case if it is not that the defendant sought to use the will as defence but on the other hand, it is the plaintiff, who himself has filed the will admitting the execution, but questioning the legal validity of the same in so for as certain properties are concerned. In that view of the matter, than section 58 of the Indian Evidence Act is applicable for the instant case and section 68 is totally inapplicable.

Proving of admission of facts
In fact, in view of the specific admission on the part of the tenant to the averments of the landlord in the petition with regard to rent-deed which is signed by tenant and which clearly shows the petitioner to be landlord/ owner, the trial court was justified in relying on the same tenant ne deal sign ki jispe likha tha ki petitioner landlord hai land ka.. so that will be considered as a fact.. The admission of the tenant to the pleading of the petitioner could be looked into by the trial court. Even otherwise mere assertion that the person who instituted proceedings is not owner would not raise any triable issue.

Raising of objection first time in appeal
Objection about mode of proof can be waived by a party and unless such objection is raised by the party at the earliest opportunity in the trial court, such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal.

Scope and ambit
In so far as the submission that the landlord was bound by his admission in the pleading is concerned, it is true that such an admission being a judicial admission under section 58 of the evidence act, stands on a higher footing than evidentiary admission, but on the facts of the instant case to which reference shall be shortly made, it is the proviso to section 58 which comes into play and the rights of the parties had to be determined de hors the said admission. The said proviso contemplates that the court may in its discretion require the facts admitted to be proved otherwise than by such admission.

Tenant’s eviction on grounds of arrears of rent- proceedings for-
Order passed under section 151, Cr PC be deemed order under order XXXIX, rule 10. Defense be struck of for non- compliance of order. Provisions of order XV-A operate in limited share of rent cases alone where as order XXXIX, rule 11 cases of non- compliance of courts order. Passing of orders under order XXXIX instead of order XV-A. Amendments procedural in nature. Applicable to pending proceedings. Creating no vested rights. Payment of rent admission of landlords- tenant relationship. Small causes empowered to try case and pass orders.

Applicability of section n 58 to the criminal proceedings
The principle that the facts admitted need not be proved is applicable to only civil proceedings under English law. An admission made by an accused falling short of plea of guilty does not prejudice the accused. A “prisoner can consent to nothing”. But under Indian law section 58 seems to make no such distinction and has been held to be applicable to both civil and criminal proceedings. The essential feature of a criminal trial is that the prosecution shall have the burden of proving all the ingredients, which constitute an offence, and the breach in the prosecution evidence cannot be filled with the help of the admission made by the accused. Even though the applicability of section 58 to criminal trial is not barred, yet the court should act under the proviso to section 58and require all essentials facts to be proved by the prosecution, event if they are admitted by the accused.

In Rangappa Goundan v. Emperor, the appellants were charged with the murder. At the trial public prosecutor asked the defence counsel for the appellant whether he would like to examine the medical witness and the defence counsel expressed the unwillingness. The appellants were convicted without examining the medical witness as to the nature of the injuries sustained by the deceased and whether those injuries were the cause of death of the deceased. The Madras High Court held that either the consent or admission by the defence concel will not relieve the prosecution of proving by evidence the nature of injuries received by the deceased and that they resulated in his death.

Appellants changed with the murder

Applicability of section 58 to probate and divorce cases
Section 58 has no application to divorce and probate cases. In divorce cases, the court does not usually decide the matter merely on the basis of the admission of the parties. It is not rule of law but rule of prudence, for the parties to the divorce proceedings are likely to make collusive statements admitting allegations against each other in order to gain common object that both desire for personal reasons. A decision based on such admissions would be against public policy.

Proviso
Whether the court entertains a doubt that the admission is fraudulent or erroneous or whether the admitted documents is inoperative by reason of want of registration or proper attestation, the court acting under the proviso to section 58 may require evidence to be given for the purpose of proving the admitted facts.

Conclusion
Concluding the topic I found that section 58 classifies the judicial admissions, which require no proof into the following:-

Firstly, facts which parties or their agents agree to ambit at the hearing. Secondly, facts which before the hearing they agree to ambit in writing, and thirdly, which they are deemed to have admitted by rules of pleadings.

These are the main 3 conditions on which focus is laid. This section conveys the principle that what is admitted need not be proved. The court has to try the questions on which the parties are at issue, not those on which they have agreed. Also it deals with the admissions made by the agents of the parties, claim for treatment, evidence made in affidavit unless explained furnishes best evidence, tenants eviction grounds of arrears of rent proceedings.

BIBLIOGRAPHY
· V. Krishnamachari, Law of Evidence, (Hyderabad: S. Gogia & Company) 20
· S.R.Myneni, The law of Evidence, (Hyderabad: Asia Law House) 2007.
· Vijender Kumar, law of Evidence, (Hyderabad: Asia law House) 6th edition.

CASES REFFERD
· Rangappa Goundan v. Emperor AIR 1936 Mad. 426.
· Arjun Khaimal Makhijani v. Jmnadas C. Tuliani,(1990) 1 SCj 59 (73).
· Rambhau S/o Bapurao Deshmukh v. Narayan S/o Sitaramji Ukande and others, (1995) 1 guj LR 209 (SC).
· R. v. Bertrand, 1867 LR 1(PC) 520.
· Valluri Jaganmohini Seetharama Laxshmi v. Kopparathi Ramchandra Rao, AIR 1994 AP 284.
· Narendra Kumar v. Kumar Nayyar, AIR 1994 Del 209.
· Smt. Rajia Sultan Widow of Mirza Sultan Ali Baig and others v. Oil and Natural Gas Commission, 1985 (2) GLR 1315

# Nga Tun Lu v. Nga Shwe Chin, 29 IC 699.
# Commissioner Excise v. Manoj ali, 2006 (9) JT 392: 2006 (10) SCALE 516.
# (1974) 1 SCC 242 : AIR 1974 SC 471.
# (1976) 4 SCC 320 : AIR 1977 SC 680
# AIR 1988 All 257.
# AIR 1974 Ori 36.
# AIR 1964 Sc 538
# Uttam Chand Kothari v. Gauri Shankar Jalan, AIR 2007 Gau 20.
# Order VI, Rule 1, CPC
# Lutufallah v. Mohammed Sidik, AIR 1946 Sind 117
# Sangramsingh P. Gaekwad v. Shantadevi P. Gaekwad, (2005) 11 SCC 314: AIR 2005 SC 809.
# (1976) 4 SCC 320 : AIR 1977 SC 680.
# AIR 1983 SC 462: (1984) Supp SCC 594.
# (1998) 1 SCC 278 : 1998 AIR SCW 219.
# Union of India v. Pramod Gupta (Dead) by LRs. And othrs, (2005) 12 SCC 1 : 2005.
# 2006 (7) Scale 517 : 2006 AIR SCw 3956.
# 1998 AIR SCw 219.
# Steel authority of India Ltd. V. Union of India, AIR 2006 SC 3229.
# Surendra Kumar Jain v. Royce Pereira, 1998 (2) Bom CR 300 (SC)
# Broadway Center v. Gopaldas Bagri, AIR 2002 Cal 78 at 83.
# S.S. Roy v. Hari Pada Roy, 1998 (2) Bom CR 305 at p. 319.
# s[22] N.N. Diewana v. N.A. Dighe, 2000 (4) Bom CR 165.
# Valluri Jaganmohini Seetharama Laxshmi v. Kopparathi Ramchandra Rao, AIR 1994 AP 284.
# Narendra Kumar v. Kumar Nayyar, AIR 1994 Del 209.
# Smt. Rajia Sultan Widow of Mirza Sultan Ali Baig and others v. Oil and Natural Gas Commission, 1985 (2) GLR 1315.
# Arjun Khaimal Makhijani v. Jmnadas C. Tuliani,(1990) 1 SCj 59 (73).
# Rambhau S/o Bapurao Deshmukh v. Narayan S/o Sitaramji Ukande and others, (1995) 1 guj LR 209 (SC).
# R. v. Bertrand, 1867 LR 1(PC) 520.
# AIR 1936 Mad. 426.

The  author can be reached at: shraddha.ojha@legalserviceindia.com

ISBN No: 978-81-928510-1-3
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