In every written statement of defence, the defendant must specifically deny every allegation of fact made in the plaint unless of course he intends to admit them.
The Plaintiff is also expected to specifically deny every allegation made in the counter claim unless he intends to admit them.

Under Order 7 rule 1 the period for service of defence is 14 days and an affidavit of service must be filed.
The defence is to be accompanied by verifying affidavit (where there is a counterclaim), list of witnesses and statements and copies of documents. Again leave of the court may be obtained to have the statements furnished at least 15 days prior to Trial Conference. Service of documents under this order is provided in rule 20.

A general denial of allegations or a general statement of general admission is insufficient e.g. if the plaintiff has alleged that he lent you 1000/-.  If the defendant was to deny this, he must do so specifically he will say it “the defendant denies that the Plaintiff lent him or that he borrowed from the plaintiff the sum of 800/- or any other sum at all.  If you do not specifically deny, you will be deemed to have admitted those facts.
In order to understand the Rules of formal defences.  There are two important functions of a defence:
1.            The function of a Defence is to state the grounds and the material facts on which the Defendant relies for his Defence.
2.            The Defence is to inform the Plaintiff precisely how much of the statement of the claim the Defendant relies on to defeat the claim of the Plaintiff.

So in setting out a Defence the Defendant has the following options
1.            He may traverse or deny;
2.            He may confess and avoid;
3.            He may object on a point of law;
4.            Force your opponent to furnish further and better particulars –it is an indirect way of attacking because failure to provide may lead to an application to strike out.
5.            Reply to a pleading in such a way that you force your opponent to amend.
6.            He may admit or make an admission;

1.            TRAVERSE & DENY

Traversing is an express contradiction of an allegation of fact in an opponent’s pleadings.  One uses words which have been used in the opponent’s pleadings but turn them into the negative.  If the opponent pleads matters of law, one should not traverse this, one cannot plead law.  When one is traversing one should not attack the prayers or the reliefs that the opponent is seeking.  One should also not plead to matters that have not been alleged.  One should not attempt a pre-emptive attack, confine your traverse to matters which have been alleged against you.  Traversing must only be on matters that have been alleged and every allegation of fact unless it is traversed is deemed to be admitted.  Order 2 Rules 11 and 12.

Order 2 Rule 11  Admissions and Denials
11.(1) Subject to subrule 4, any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.  (2)  A traverse may be made either by denial or by a statement of non-admission and either expressly or by necessary implication. (3) Subject to subrule (4), every allegation of fact made in a plaint or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by him in his defence or defence to counterclaim; and a general denial of such allegations, or a general statement of non-admission of them, shall not be sufficient traverse of them.  (4) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.

Order 2 Rule 12 – Denial by joinder of issues
(1)  If there is no reply to a defence, there is a joinder of issue on that defence.
(2)  Subject to subrule (3) –
(a)  there is at the close of pleadings a joinder of issue on the pleading last filed; and
(b)  a party may in his pleading expressly join issue on the immediately preceding pleading.
(3)  There can be no joinder of issue on a plaint or counterclaim.
(4)  A joinder of issue operates as a denial of every material allegation of fact made in the pleading which there is a joinder of issue unless, in the case of an express joinder of issue, any such allegation is expected from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.

Usually the way to traverse is to have an omnibus denial, which is framed as save as herein expressly admitted each and every allegation of fact is deemed to be denied as if it was being set out seriatim and traversed specifically.

Joinder of issues – where there is a joinder of issues one need not traverse allegations contained in that pleading but there is a joinder of issues in the last pleading filed unless that pleading raises allegations which must be traversed.  There is a joinder of issues when a defence is filed but there is no joinder of issues if the opponent chooses to file a reply to the defence.  If a defence has a counter claim the allegations in the counterclaim must be traversed by the Plaintiff.  If they are not traversed then Rule 11 requires they be deemed to be admitted.  If one is served with a defence with a counterclaim, one must traverse the counterclaim since it is acting as a plaint.  Where a counterclaim is seeking general and special damages, one cannot ask for final judgment, as one can only ask for final judgment on the case of special damages otherwise for general damages one would ask for interlocutory Judgment.


Default judgement in default of appearance – this happens where a plaintiff serves and the Defendant does not reply or file a defence.  One seeks for final and interlocutory judgment in respect of general damages and final judgment.  If the relief must go for assessment it must go for formal proof against the defendant.

Where the Plaintiff has filed the suit, has served the defendant and the defendant files a defence and denies everything and requests for the suit to be dismissed.  In this case there is a joinder of issues and the next step is to fix the suit for trial and if the plaintiff succeeds against the defendant then he gets his reliefs. 

Where after the Defendant is served with the plaint he chooses to use the same suit to claim against the Plaintiff, he joins issues with the plaintiff in the plaint.  Together with the defendant includes general damages, special damages and repair costs for the car (in case of a car accident) as between the plaintiff and the defendant on the main suit, there is joinder of issue, as between the plaintiff and the defendant in the counterclaim there ought to be traverse, if the plaintiff does not traverse the counterclaim, the defendant may ask for judgment on default of defence of the counterclaim.  Where 14 days pass and defence for the counterclaim has not been filed, the defendant may make an application from the registrar for a judgment in default.  It should read as “please enter judgment against the Plaintiff who has been served with a counterclaim and has failed to reply”.  Costs must be assessed after the interlocutory judgment.

Where the claim is for liquidated damages only- please enter final judgment against the plaintiff as claimed in the counterclaim in default of a defence.  Costs to be assessed.  Ones one receives final judgment and receives assessment for costs.  One then can proceed to execute judgment on the plaintiff.  General damages require interlocutory judgment.

If there is no reply to a defence, there is a joinder of issue on that defence but one cannot have a joinder of issues of a plaint or a counterclaim, these must be traversed.  At the close of the pleadings there is a joinder of issues on the pleadings last filed.  

Denials must be specific as general denials are not sufficient.  Where an opponent is alleging for example there is money owed, denial of this must be specific.  General statements are not traversing, one has to be clear and if figures are used one must deny that figure or any other figure or at all.

Where the opponent pleads in the conjunctive, then one must plead in the disjunctive.   If your opponent is pleading in the conjunctive you must reply in the disjunctive.

Where the Defendant decides to confess and avoid, this means that he admits the facts subject to some facts, which adversely affect the claim.  For instance suppose it is a suit of a dismissed employee and the employee sues the employer for wrongful dismissal.  The defendant in responding to that claim says that “the defendant denies that he wrongfully dismissed the plaintiff from the employment” It has to come out clearly that the Defendant admits he dismissed the plaintiff but not wrongfully.
In the case of libel where one admits the facts but avers qualified privilege.  Where there is libel and it is alleged it was committed in a privileged occasion, the libel is destroyed by qualified privilege.

3.            RAISE A POINT OF LAW

 This is stated in Order 2 Rule 9 – a party may by his pleadings raise any point of law.  Where a party in his pleadings indicates that they are raising an objection on a point of law, they must be heard first.  It is always safe to isolate the paragraph in the pleadings which indicates that you intend to raise an objection on a point of law.  it is advisable to file a formal notice of objection on a point of law, file it and serve it on the opponent, this is meant to notify them on the point of law you intend to raise.  ‘Take notice that the defendant intends to raise an objection on a point of law’ Where matters touch on jurisdiction they must be heard as a preliminary matter before anything else.  One must distinguish between pleading law and raising a point of law, pleading law is not allowed but raising point of law is permitted.  When a party is pleading law, they are basically pleading conclusions of law which have the effect of obscuring and concealing the facts of the case.  On the other hand, raising a point of law helps in defining and isolating an issue or question of law on the facts as pleaded.  Where one intends to raise an objection on a point of law it should be stated in a separate paragraph and should raise a point of law which is of substance and which requires that it must be determined by the court at that moment.  Objections could be validity of a custom, questions of jurisdiction of a court, whether a conversation was privileged, where in defamation a party alleges privilege, that issue can be separated and tried.  The issue is to establish if there was privilege.  Raising an objection on law is a preliminary issue and where sustained it should have the effect of having the suit struck out or dismissed at that point.
It is important that each objection on a point of law is on a separate paragraph.

Force the opponent to amend their pleadings – this is not direct, since one does not do it, one forces the opponent to amend.  When one applies for further and better particulars, one may easily seek leave to amend.  You can cure the defect by amending the pleadings assuming he pleadings have not been closed, it is a way of attacking.

6.            COUNTER CLAIM & SETTLE:
Order 2 Rule 11 – it makes the provision of a counter claim.Even though the Plaintiff was the first person to commence the litigation, it may happen that the defendant also has some claim against the Plaintiff.  Usually the option is that the Defendant will have a choice either to institute a separate suit or set up their claim in the defence.  If the court finds out that the Defendant’s claim can be determined within the same suit without delay inconvenience or prejudice to justice, then the court will allow it.  Suppose the bank sues you over a debt, the bank will be the plaintiff over X.  suppose the Bank overcharged in calculations?  The Defendant can counterclaim on the overcharging.
Order 20 (Application for an Account)  allows a defendant with a counterclaim to apply for account and empowers the court to order payment after accounts are taken.



A  set off happens where the plaintiff has a claim of 1000 and the Defendant argues that the Plaintiff owes him 500/- you settle for a set-off
There are two major distinctions
1.            A set-off maybe described as a shield which operates only as a defence to the plaintiff’s claim; whereas
2.            A counterclaim may be described as being both a shield and a sword. A Counterclaim is basically a cross-action and is in fact usually treated as a separate suit even for billing purposes by advocates.
When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a defence to the counterclaim and serve the Defendant.  The defence must be specific and what is not denied is deemed to have been admitted.
Whenever you have set-off the plaintiff has to reply to it.


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