Report No. 69
Section 17 having laid down that admissions must be made by the persons and under the circumstances "hereinafter mentioned". section 18 deals with the persons whose statements are to be regarded as admissions. The section consists of three paragraphs, of which the first is of general application and deals with parties and agents. The second paragraph introduces certain qualifications as regards parties to suits who are suing or have been sued in a representative character.
The third paragraph deals with statements made by persons having a proprietary or pecuniary interest in the subject-matter of the proceedings or by persons from whom the parties to the suit have derived their interest in the subject-matter of the suit. Somehow, the various paragraphs do not use identical language while describing the nature of the legal proceeding. The first paragraph speaks of "proceedings". The second paragraph speaks of "suits". In the third paragraph, sub-paragraph (1) speaks of the "proceeding", while sub-paragraph (2) speaks of "suit". We shall revert to this aspect later1.
1. Para. 9.27, infra.
9.26. Amendment needed-Admissions.-
The general principle of the section is sound enough. Statements made by a party are admissions, and so are statements of persons with identity of interest1 in the subject-matter. But certain changes appear to be desirable in the section. The discussion that follows will indicate that the changes which we contemplate are partly of expression, partly of substance and partly of structure and arrangement. The changes of substance are needed so that the section may be brought into conformity with the correct principle-identity of continuance of interest.
1. See introductory discussion before discussion as to section 17, supra.
9.27. We may first refer to a verbal point of a general nature. Some paragraphs of the section use the expression "suit", while some employ the expression "proceeding", as already stated.1 There is, in our view, no reason why the various paragraphs of this section which apply to "suits" should not apply to all civil proceedings. We, therefore, recommend that the expression "civil proceeding" should be used in those paragraphs which speak of "suits". Changes of Substance may now be dealt with.
1. Para. 9.25, supra.
9.28. Section 18, first paragraph.-
The first paragraph of the section deals with admissions by parties and agents. No change is required in its substance. We propose to split it up into two, in accordance with the changes in structure to be indicated later1.
1. Para. 9.43, Infra.
9.29. Section 18, second paragraph.-
The second paragraph relates to statements made by parties to suits "suing or sued" in a representative capacity. It provides that statements made by such parties are not admissions unless the statements were made while the parties making them held that character. No changes of substance are needed in this paragraph. We have already indicated1 the need to substitute "civil proceedings" in place of "suits" in the section.
1. See para. 9.27, supra.
9.30. Section 18-second paragraph and suits in a representative character.-
It may be stated that the legal concept of "suit in representative character" is wide enough to cover several situations-e.g. suits by trustee,1 Mutawalli, or executor. In this connection, Order 7, rule 4 and Order 7, rule 9 of the Code of Civil Procedure etc. may be seen, and also a Bombay case2 and a Calcutta case3. These provisions and cases show the general understanding of the expression "suit in representative character". In our opinion, it is desirable, having regard to the illustrations of representative suits which have been mentioned above, to extend section 19, second paragraph to civil proceedings other than suits also. A trustee may, for example, have to file applications (and not merely suits). Such a situation should be covered.
1. Order 31, Rule 1, Code of Civil Procedure.
2. Gurushidappa v. Gurushidappa, AIR 1937 Born 238 (239, 240) (Rangnekar, J.).
3. Upendranath, ILR 42 Cal 440 (Mookerji, J.).