LEGAL PRINCIPLE: CIVIL PROCEDURE — Pleadings — Reply — Failure to File Reply Does Not Amount to Admission of Averments in Statement of Defence

"Where the only pleading filed is the statement of claim absence of a statement of defence means that no issue is joined. That there is an implied joinder of issues on a defence which is unaccompanied by a counter claim if no reply is served appears to me to be a general principle of our procedural law which, for avoidance of doubt, is often incorporated in rules of civil procedure in many of our jurisdictions. Parties are brought to an issue where the last pleading is the statement of defence to which a counter claim had not been appended. In such a case it is assumed that the plaintiff does not intend to rely on any excuse or justification in answer to any allegation in the statement of defence or raise any fresh facts not already contained in the pleadings filed, but is content to traverse the allegations in the statement of defence and, thereby, challenge the defendant to prove the truth of those allegations. Where, of course, the plaintiff seeks to contradict the allegations in the statement of defence not merely by a traverse but by raising issues of fact which would take the defendant by surprise, he should raise such issues by a reply. But, even then, the consequence of his not so raising it is not that he is taken to have admitted the truth of the allegations of fact in the statement of defence so as to free the defendant from the obligation to lead evidence in proof of what he alleges, but to deprive the plaintiff from adducing evidence of facts not pleaded or already raised by the pleadings as they stand."