ORDER 13

DEFAULT OF APPEARANCE TO WRIT

Claim for liquidated demand (O. 13, r. 1)
1. —(1) Where a writ is endorsed with a claim against a defendant for a liquidated demand only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against the other defendants, if any.

(2) A claim shall not be prevented from being treated for the purposes of this Rule as a claim for a liquidated demand by reason only that part of the claim is for interest accruing after the date of the writ at an unspecified rate, but any such interest shall be computed from the date of the writ to the date of entering judgment at the rate of 6% per annum or at such other rate as the Chief Justice may from time to time direct.

Claim for unliquidated damages (O. 13, r. 2)
2. Where a writ is endorsed with a claim against a defendant for unliquidated damages only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter interlocutory judgment against that defendant for damages to be assessed and costs, and proceed with the action against the other defendants, if any.

Claim in detinue (O. 13, r. 3)
3. Where a writ is endorsed with a claim against a defendant relating to the detention of movable property only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, at his option enter either —

(a) interlocutory judgment against the defendant for the delivery of the property or their value to be assessed and costs; or

(b) interlocutory judgment for the value of the property to be assessed and costs,

and proceed with the action against the other defendants, if any.

Claim for possession of immovable property (O. 13, r. 4)
4. —(1) Where a writ is endorsed with a claim against a defendant for possession of immovable property only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, and on producing a certificate by his solicitor, or (if he sues in person) an affidavit, stating that he is not claiming any relief in the action of the nature specified in Order 83, Rule 1, enter judgment for possession of the immovable property as against that defendant and costs, and proceed with the action against the other defendants, if any.

(2) Where there is more than one defendant, judgment entered under this Rule shall not be enforced against any defendant until judgment for possession of the immovable property has been entered against all the defendants.

Mixed claims (O. 13, r. 5)
5. Where a writ issued against any defendant is endorsed with 2 or more of the claims mentioned in Rules 1 to 4, and no other claim, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under these Rules if that were the only claim endorsed on the writ, and proceed with the action against the other defendants, if any.

Other claims (O. 13, r. 6)
6. —(1) Where a writ is endorsed with a claim of a description not mentioned in Rules 1 to 4, then, if any defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing and upon filing an affidavit proving due service of the writ on that defendant and, where the statement of claim was not endorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had entered an appearance.

(2) Where a writ issued against a defendant is endorsed as aforesaid, but by reason of the defendant’s satisfying the claim or complying with the demands thereof or for any other like reason it has become unnecessary for the plaintiff to proceed with the action, then, if the defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter judgment with the leave of the Court against that defendant for costs.

(3) An application for leave to enter judgment under paragraph (2) shall be by summons which must, unless the Court otherwise orders, and notwithstanding anything in Order 62, Rule 10, be served on the defendant against whom it is sought to enter judgment.

Proof of service of writ (O. 13, r. 7)
7. —(1) Judgment shall not be entered against a defendant under this Order unless —

(a) the plaintiff produces a certificate of non-appearance in Form 11; and

(b) either an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant, or the plaintiff produces the writ endorsed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf.

(2) Where, in an action begun by writ, an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party is in default of appearance.

Setting aside judgment (O. 13, r. 8)
8. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.