Main petition amendment ia allowed. fresh counter not filed.
swasti
(Querist) 05 November 2012
This query is : Resolved
Petitioner's IA to amend the main petition by adding mental cruelty as new ground narrating some incidents that were missed while drafting main petition has been allowed, dismissing the respondent's counter on IA that all those incidents are false,fabricated and allowing it will change the basic nature of the main petition.
Then, respondent didn't file fresh counter on main petition also denying the incidents added to main petition by amendment IA.
Now, the case has been posted for trial.
So, in the absence of fresh counter on amended main petition, will the allegations added by IA be taken as admitted by respondent?
If yes, what could the respondent do to correct it at this stage?
Respondent denied those incidents in counter on IA only, and didn't amend the already filed counter on main petition after the IA was allowed by court.
Devajyoti Barman
(Expert) 05 November 2012
This is called ' additional written statement' not counter.
Without additional written statement the amended facts in the plaint would remain uncontroverted if not admitted.
So file a petition applying for filing the additional written statement. The counter in IA has no relevance.
swasti
(Querist) 05 November 2012
Respondent's new advocate after checking the case file says that IA admitted one month back, then time were given for 'additional written statement', judge closed the stage with the remark 'no counter filed by respondent', now it is posted for trial.
He is of the view that there is no chance to file 'additional written statement' since trial started, and the only option left is to disprove the same during trial..
Devajyoti Barman
(Expert) 05 November 2012
Has evidence started?
If not then apply for the same. Even if it is rejected you could raise this issue in higher court.
Without pleading you may not examine the witnesses on several aspects.
swasti
(Querist) 05 November 2012
Sir, Next date is for trial. Evidence already closed.
stages completed:
1) posted for evidence:
petitioner filed some documents as evidence, and one IA to amend main petition.
Respondent submitted counter in IA
2) Allowed the IA
3) given time for 'additional written statement'
But it was not filed by respondent.
4) closed it with remark 'no counter was filed' and posted the case for trial on next date.
So, can I file 'additional written statement' now?
Devajyoti Barman
(Expert) 05 November 2012
Yes, apply for filing again with some explanation why you could not file earlier.
