Response to new set of allegations made in WS
Querist :
Anonymous
(Querist) 14 April 2011
This query is : Resolved
ABC filed a civil suit against XYZ, wherein ABC made around 1 to 13 allegations and narrations of facts and claimed relief.
XYZ filed the counter and opposed the relief sought and also denied the allegations as follows:
1. At the start, Summary denial of all allegations and facts and relief sought.
2. Facts 1 to 5, 9-10, 13 denied explicitly.
3. Made many new counter allegations 14 to 19 in regards to facts 6-8,11,12 alleged in plaint, but although not denied those allegations XYZ alleged it as 'a one sided story and a deceitful attempt by plaintiff' to mislead the court.
ABS did never file any response on WS by XYZ and to new allegations 14 to 19 untill ABC's exam-in-chief.
Currently, XYZ's direct chief exam is just concluded wherein XYZ asserting that "14 to 19 be taken as 'admitted facts' by ABC" and hence no need to prove those facts.
Can ABS deny the existance of facts 14 to 19 NOW?
What is the way out for ABC to deny it at this jucture?
Law does not make it mandatory to file "subsequent pleadings".
It is discretionary. Hence ABC did not get opportunity to file say to new allegations in WS.
Hence it is not 'an admitted fact' as law/judge never prescribed ABC to file any response to new allegations in XYZ's WS.
It seems that even XYZ hasn't got the proofs to prove it, but XYZ seems to have relied on ABS's omission to deny it explicitly.
Will above justification be maintenable? What is the way out for ABC?
Raj Kumar Makkad
(Expert) 14 April 2011
Any suit is decided on the issues framed in the proceedings. If those new allegations have been specifically framed as issues and onus to prove has been put on defendant then those issues have to be proved on affirmative evidence and no benefit can be derived by defendant if plaintiff failed to rebut those new allegations raised in the written statement. If those have not been framed as issues then no problem for plaintiff.
Querist :
Anonymous
(Querist) 15 April 2011
Dear Sir,
Thats the point ........ other party XYZ is making immediately ....... at the time of framing of issues.
It asked the court to consider it as counter-facts-in-issue tossed by XYZ as admitted-and-settled by ABC
So should not come in framing i.e. issue of facts.
And XYZ demanded to give judgment summarily as above vitiates the facts-in-issue alleged by ABC (plaintiff)
ABC should have given a notice by the Court that there is 'material proposition of facts in defense' from respondent's side.
But Court did not give any such notice.
If it is the prerogative of court to frame issues, then it is the duty of court to send notice.
Hasn't the respondent been given the due notice of ABS's facts in issue?
In the same manner ABC should have been served notice of similarly.
Also although XYZ is not making and explicit counterclaim, set-off is a counter claim.
Order 14 says 'material proposition by one party to be denied by other'
It is true that ABC i.e. plaintiff somply overlooked to respond to counter allegations!! (We know it our problem! But .... help us to come out. )
But please give appropriate excuse, forceful argument as a'question of law'.
We have already prepared to put above humble imputation on Hon Court, in regard to framing of issues
Please help us.
