Intellectual Property Rights: Practice and Drafting by Adv Gautam Matani. Register Now!
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Sakshi Sakshi (Self employed)     28 April 2013

Addll facts in ws arent denied by plaintiff's exam-in-chief

Doctrine of 'implied and assumed traverse' does not compel plaintiff to file replication for additionals in Ws if there is not set-off or counter claim.


By default those new facts become disputed facts/facts in issue due to Doctrine of 'implied and assumed traverse' and based on the context the burden to prove is placed on partie to prove the same (mostly the respondent as respondent has allged those facts) in the vidence stage /oral evidence.



But it also does NOT exempt the plaintiff to omit to deny those while giving his exam-in chief ... as well.


(My question is ... if husband omits to to deny those 'new facts in WS' in his exam-in chief ,does that amount to 'admitted facts' as not challenged and denied??)
Please answer.


There may be some such facts which can only be proved by the petitioner (E.g. Wife alleging new facts that husband had married earlier to a foreigner ....... he went through a trial of visa by sham marriage ..... he has invested money in land ........... and also has multiple busineeses .... he had hernia operation before marriage) and so on.



Facts of the case.............................




Husband filed Divorced suit.

Wife replied by filing WS and traversing all/each and every facts line by line.

Wife also alleged many new facts in WS.
Wife also alleged/raised many contradictions, discrepancies in husband's pleadings (which are of grave nature)

Husband DID NOT file any replication/Additional Plaint/statement (and hence it was assumed and implied traverse and all new wife's new facts became 'disputed facts'...but husband wasn't exepmted not to expressly deny those new facts alleged by wife, in his exam in chief)

The suit continued for 1.5 years

During which husband admitted ONLY some of the new facts alleged by wife (implied as well as an excuse while proceedings on interim applications and it is reduced into writing as previous statement of his


Husband filed his exam in chief affidavit as per his pleadings ONLY (copy paste of his pleading by chaning a few words as petitioner replaced by 'I' or 'me' and date related changes as pleading was 1.5 years old).  


BUT exam -in-chief DOES NOT take into account any of the NEW allegations made in WS.

But he was also liable to deny the additional facts, as mentoined above, ATLEAST DURING his evidence...wasn't he?


But husband HAS NOT DENIED OR EVEN REFERRED TO ANY OF THOSE FACTS which were alleged by wife, in his exam in chief.

Thus Additional Facts stated in WS are not denied by plaintiff in his Exam-in-chief. 

ORAL EVIDENCE is led when facts alleged vide affidavits by both sides are not admitted by parties are hence are in dispute!!!!!

DOES THE ABOVE MEAN that husband had admitted and conceded those new facts?

Is my interpretation correct in above situation?

Pls help 


 2 Replies

R.K Nanda (Advocate)     28 April 2013

already replied in expert section.

1 Like

Nadeem Qureshi (Advocate/     28 April 2013

repeated query

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register