Counter claim/set off and implied traverse of new facts pleaded in ws.
Damayanti
(Querist) 02 March 2013
This query is : Resolved
If Respondent has traversed all the allegations in plaint and pleaded new facts in defense which the petitioner missed out as half truth.
Doesn't the counter allegation of vexacity and frivolity become a Counter claim or at leasst an equitable set off?
Since in above context, there is no counter claim and only equitable set off is there, as per current settled case laws .... plaintiff is not obligated to file any replication.
And also even though plaintiff doesn't file any replication to explain those 'new facts' stated in WS, the plaintif is automatically enjoying doctrine of 'implied' and 'assumed' traverse against those 'new facts' in Ws.
Thus he is automatically escaped from doctrine of 'non-traverse'
This creates room for the plaintiff to take u-turns and twists and travel beyond pleadings as well as cook up new story as it evolves.
Is it not a breach of 'fair trial'?
Also those 'new facts' aren't made part of 'framed issues'
I thought to file a separate 'notice to admit facts'(on behalf ofrespondent) to compell petitioner come with some answers as to those 'new facts' and in the same if there is evasive denial or non-traverse then it may help respondent.
Is this an inherent flaw?
i.e. respondent has be wary about non-traverse (all facts assumed to be admitted unless explicitly denied), but the petitioner is awarded 'assumed traverse' (all facts assumed to be denied) against the stated 'new facts' in WS
Please give your valued comments.
Hon'ble Court said 'I can't treat non-traverse of those 'new facts' as an admission from petitioner'.
How would you tackle such scenario?
Devajyoti Barman
(Expert) 03 March 2013
Then the plaintiff can file replica to cover the additional points.
Raj Kumar Makkad
(Expert) 04 March 2013
The plaintiff shall have to first obtain the ppermission from the court to file the replication and then he can make reply to those points in his replication which can even become part of issues framed.
prabhakar singh
(Expert) 04 March 2013
Neither C.P.C provides nor there is necessity of REPLICA in each and every case,
courts generally allow it to be filed, if plaintiff wants so,otherwise all that can be dealt with at the time of evidence.
