ORDER
19
DEFAULT OF PLEADINGS
Default in service of statement of claim (O. 19,
r. 1)
1.
Where
the plaintiff is required by these Rules to serve a statement of
claim on a defendant and he fails to serve it on him, the defendant
may, after the expiration of the period fixed under these Rules
for service of the statement of claim, apply to the Court for an
order to dismiss the action, and the Court may by order dismiss
the action or make such other order on such terms as it thinks just.
Default of defence: Claim for liquidated demand (O.
19, r. 2)
2.
—(1)
Where
the plaintiff’s claim against a defendant is for a liquidated
demand only, then, if that defendant fails to serve a defence on
the plaintiff, the plaintiff may, after the expiration of the period
fixed under these Rules for service of the defence, 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)
Order 13, Rule 1 (2), shall apply
for the purposes of this Rule as it applies for the purposes of
that Rule.
Default of defence: Claim for unliquidated damages
(O. 19, r. 3)
3.
Where
the plaintiff’s claim against a defendant is for unliquidated
damages only, then, if that defendant fails to serve a defence on
the plaintiff, the plaintiff may, after the expiration of the period
fixed under these Rules for service of the defence, enter interlocutory
judgment against that defendant for damages to be assessed and costs, and
proceed with the action against the other defendants, if any.
Default of defence: Claim in detinue (O. 19, r. 4)
4.
Where
the plaintiff’s claim against a defendant relates to the
detention of movable property only, then, if that defendant fails
to serve a defence on the plaintiff, the plaintiff may, after the
expiration of the period fixed under these Rules for service of
the defence, enter either —(a)
interlocutory judgment against that
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.
Default of defence: Claim for possession of immovable
property (O. 19, r. 5)
5.
—(1)
Where
the plaintiff’s claim against a defendant is for possession
of immovable property only, then, if that defendant fails to serve
a defence on the plaintiff, the plaintiff may, after the expiration
of the period fixed under these Rules for service of the defence,
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 for 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 unless judgment for possession of the immovable property
has been entered against all the defendants.
Default of defence: Mixed claim (O. 19, r. 6)
6.
Where
the plaintiff makes against a defendant 2 or more of the claims
mentioned in Rules 2 to 5, and no other claim, then, if that defendant
fails to serve a defence on the plaintiff, the plaintiff may, after
the expiration of the period fixed under these Rules for service
of the defence, enter against that defendant such judgment in respect
of any such claim as he would be entitled to enter under those Rules
if that were the only claim made, and proceed with the action against
the other defendants, if any.
Default of defence: Other claims (O. 19, r. 7)
7.
—(1)
Where
the plaintiff makes against a defendant or defendants a claim of
a description not mentioned in Rules 2 to 5, then, if the defendant
or all the defendants (where there is more than one) fails or fail
to serve a defence on the plaintiff, the plaintiff may, after the
expiration of the period fixed under these Rules for service of
the defence, apply to the Court for judgment, and on the hearing
of the application the Court shall give such judgment as the plaintiff
appears entitled to on his statement of claim.
(2)
Where the plaintiff makes such a claim
as is mentioned in paragraph (1) against more than one defendant,
then, if one of the defendants makes default as mentioned in that
paragraph, the plaintiff may —(a)
if his claim against the defendant
in default is severable from his claim against the other defendants,
apply under that paragraph for judgment against that defendant,
and proceed with the action against the other defendants; or
(b)
set down the action by summons for
judgment against the defendant in default at the time when the action
is set down for trial, or is set down by summons for judgment, against
the other defendants.
(3)
An application under paragraph (1)
must be by summons.
Default of defence to counterclaim (O. 19, r. 8)
8.
A
defendant who counterclaims against a plaintiff shall be treated
for the purposes of Rules 2 to 7 as if he were a plaintiff who had
made against a defendant the claim made in the counterclaim and,
accordingly, where the plaintiff or any other party against whom
the counterclaim is made fails to serve a defence to counterclaim,
those Rules shall apply as if the counterclaim were a statement
of claim, the defence to counterclaim a defence and the parties
making the counterclaim and against whom it is made were plaintiffs
and defendants respectively, and as if references to the period
fixed under these Rules for service of the defence were references
to the period so fixed for service of the defence to counterclaim.
Setting aside judgment (O. 19, r. 9)
9.
The
Court may, on such terms as it thinks just, set aside or vary any
judgment entered in pursuance of this Order.