appear at the hearing, the order may be varied or revoked by subsequent order of the Court on such terms as it
thinks just.
7. Where in an action begun by originating summons in 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 was served and is in default of appearance.
Counter-claim by defendant.
8. (1) A defendant to an action begun by originating summons, who has entered an appearance to the summons
who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any
matter, (whenever and however arising) may make a counter-claim in the action in respect of that matter instead
of bringing a separate action.
(2) A defendant who wishes to make a counter-claim under this rule, shall at the first or any resumed hearing of
the originating summons by the Court but, in any case, at an early a stage in the proceedings as is practicable,
inform the Court of the nature of his claim and without prejudice to the powers of the Court under paragraph (3)
of this rule, the claim shall be made in such manner as the Court may direct.
(3) If it appears on the application of the plaintiff against whom a counter-claim is made under this rule, that the
subject matter of the counter-claim ought for any reason to be disposed of by a separate action, the Court may
order the counter-claim to be struck out or may order it to be tried separately or make such other order as may be
expedient.
Order 39
Procedure Relating to Evidence
1. Subject to the provisions of these rules and of the Evidence Act and any other enactment relating to evidence,
any fact required to be proved at the trial of any action begun by writ by the evidence of witness shall be proved
by the examination of the witness orally and in open court.
2. (1) The Court or a Judge in chambers may, at or before the trial of an action, order or direct that all or any of
the evidence therein shall be given by affidavit.
(2) An order or direction under this rule, may be made or given on such terms as to the filing and giving of
copies of the affidavits or proposed affidavits and as to the production of the deponents for cross-examination as
the Court or Judge in chambers may think fit but, subject to any such terms and to any subsequent order or
direction of the Court or a Judge in chambers, the deponents shall not be subject to cross-examination and need
not attend the trial for the purpose.
3. (1) Without prejudice to rule 2 of this Order, the Court or a Judge in chambers may, at or before the trial of an
action, order or direct that evidence of any particular fact shall be given at the trial in such a manner as may be
specified by the order or direction.
(2) The power conferred by paragraph (1) of this rule shall extend in particular to ordering or directing that
evidence of any particular fact may be given at the trial by(a) statement on oath of information or belief; or
(b) the production of documents or entries in books; or
(c) copies of documents or entries in books; or
(d) the production of a specified newspaper which contains a statement of that fact in the case of a fact which is
or was a matter of common knowledge either generally or in a particular district,
4. The Court or a Judge in chambers may, at or before the trial of an action order or direct that the number of
medical or expert witnesses who may be called at the trial shall be limited as specified by the order or direction.