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Rules of the Superior Courts

Order: 21

Defence and counterclaim

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No21-S.I. No. 254 Of 2016: Rules Of The Superior Courts (Conduct Of Trials) 2016


1. Where a defendant enters an appearance to a plenary summons he shall deliver his defence and counterclaim (if any)—
      (a) in case he does not by notice require a statement of claim, within twenty eight days from the entry of appearance; or

      (b) in any other case within twenty eight days from the date of delivery of the statement of claim or from the time limited for appearance, whichever shall be later.

2. Where leave has been given to a defendant to defend under Order 37, he shall deliver his defence (if any) within such time as shall be limited by the order giving leave to defend or, if no time is thereby limited, within fourteen days from the order.

3. In actions for a debt or liquidated demand in money a mere denial of the debt shall be inadmissible.

4. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact, e.g., the drawing, making, indorsing, accepting, presenting, or notice of dishonour of the bill or note.

5. In actions comprised in Order 2, rule 1 (1) classes (a) and (b), a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

6. No denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted.

7. If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or as assignee in bankruptcy, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically.

8. Where the Court shall be of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as shall be just with respect to any extra cost occasioned by their having been denied or not admitted.

9. Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall in his defence, state specifically that he does so by way of counterclaim.

10. Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim setting forth the names of all the persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.

11. Where any such person as in rule 10 mentioned is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same rules as are herein before contained with respect to the service of a summons, and every defence so served shall be indorsed in the Form No. 3 in Appendix C.

12. Any person not a defendant to the action, who is served with a defence and counterclaim as aforesaid, shall appear thereto as if he had been served with a summons to appear in an action.

13. Any person named in a defence as a party to a counterclaim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim.

14. Where a defendant sets up a counterclaim, if the plaintiff or any other person named in manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application, make such order as shall be just.

15. If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.

16. Where in any action a set-off or counterclaim is established as a defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant, give judgement for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

17. In probate actions the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side unless the Court shall be of opinion that there was no reasonable ground for opposing the will.

18. In every case in which a party shall plead the general issue, intending to give the special matter in evidence by virtue of any statute, he shall insert in the margin of his pleading the words "by statute" together with the year in which the statute on which he relies was passed, and also the chapter or number and section of such statute, and shall specify whether such statute is public or otherwise; otherwise such defence shall be taken not to have been pleaded by virtue of any statute.

19. No plea or defence shall be pleaded in abatement.

20. No defendant in an action for the recovery of land upon the title, who is in possession by himself or his tenant, need plead his title, unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. Except in the cases herein before mentioned, it shall be sufficient to state by way of defence that he is so in possession and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff's statement of claim. He may, nevertheless, rely upon any ground of defence which he can prove except as herein before mentioned.

21. In case of such an action being brought by some or one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener in possession may set forth in his defence that he is such joint tenant, tenant in common, or coparcener, and defends as such, and that he admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property, and upon the trial of such issue the additional question of whether an actual ouster has taken place shall be tried.

22. A person who has appeared in an action for the recovery of a holding, agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent, and has limited his appearance in accordance with Order 12, rule 22 shall deliver his defence (if any) within thirty-one days after his appearance.