How to Draft a Counter-Affidavit in Civil Litigation

By LegalInk Editorial · 2026-08-16

How to Draft a Counter-Affidavit in Civil Litigation

A counter-affidavit is your client's sworn, paragraph-by-paragraph reply to the affidavit filed by the opposing party, most commonly in interlocutory proceedings where oral evidence is not yet recorded. It has four working parts: a title block and deponent details, preliminary objections, a para-wise reply, and a prayer. This guide covers the structure of each, the logic of the para-wise reply, and the drafting choices that decide whether an application is dismissed at the threshold or drags into a prolonged contest.

Why Counter-Affidavit Drafting Demands Precision

In contested interlocutory applications — injunctions under Order XXXIX Rules 1 and 2 CPC being the most frequent — the court often proceeds almost entirely on affidavit evidence. There is no cross-examination at this stage. The counter-affidavit is the only vehicle through which your client's version enters the record.

A vague or omnibus denial ("all allegations are false and denied") gives the court nothing to work with and can weaken your position. Courts expect specific, para-wise engagement. Silence on a particular paragraph can be treated as an admission on that point, a principle applied consistently across trial courts and High Courts.

Counter-affidavit drafting is therefore substantive advocacy on paper, not a clerical exercise.

The Standard Counter-Affidavit Format

A well-structured counter-affidavit has four distinct parts. Each serves a purpose and should not be collapsed into the others.

1. Title Block and Deponent Details

Open with the cause title as it appears on record — court, case number, and parties in their correct capacity. Below that, identify your deponent: full name, age, occupation, address, and relationship to the respondent (whether the party themselves, an authorised representative, or a constituted attorney).

The deponent must be competent to speak to the facts. An unconnected employee deposing to facts they have no personal knowledge of creates a vulnerability opposing counsel will exploit.

2. Preliminary Objections

This section appears before the para-wise reply and is often underused. Preliminary objections are legal or procedural challenges to the maintainability of the application itself, independent of its factual merits.

Useful preliminary objections in civil litigation include:

• The application is not maintainable in its present form — for instance, where the relief sought in an injunction application exceeds the reliefs claimed in the main suit.
• The affidavit in support is defective — sworn before an incompetent authority, unsigned, or lacking the required verification clause.
• The applicant lacks locus standi to file the application.
• The application is barred by limitation or by res judicata under Section 11 CPC.
• A connected matter is pending before another court, engaging Section 10 CPC.

If upheld, preliminary objections dispose of the application without the court reaching merits. Even where they do not fully succeed, they frame the court's approach to the factual dispute that follows.

3. The Para-Wise Reply

This is the core of the counter-affidavit. Every numbered paragraph of the applicant's affidavit must receive a numbered reply. Courts do not appreciate — and some explicitly flag — counter-affidavits that skip paragraphs or lump multiple replies together.

Structure each reply along one of four lines:

• Admit: Where a fact is true and uncontested, say so. Admitting neutral facts — dates, parties, document existence — narrows the dispute and signals credibility.
• Deny: Where a fact is false, deny it specifically, then state the correct position. "It is denied that the applicant is in lawful possession. The respondent has been in continuous possession since [date] as evidenced by [document]."
• Not within knowledge: For facts your client genuinely cannot confirm or deny — the acts of a third party, for instance — plead that the deponent has no personal knowledge and put the applicant to strict proof. Do not use this as a substitute for denial where your client does in fact know the position.
• Admitted in part, denied in part: Where a paragraph mixes true and false facts, split it cleanly. Identify what is admitted, what is denied, and explain both.

Each denial is also an opportunity to introduce your client's positive case — documents, dates, conduct — building the factual narrative para by para.

4. Additional Facts and the Prayer

After the para-wise reply, include an "Additional Facts" section (sometimes styled "Supplementary Facts"). This is where you place facts material to your client's case that the applicant never raised, and therefore had no reason to address. Keep them out of the para-wise reply; they read more clearly and carry more weight as a standalone section.

The prayer is typically for dismissal of the application, with costs where appropriate under Section 35 CPC. Where the other side has filed an injunction application, consider a prayer to vacate any ad interim order already granted. State the primary relief specifically — do not rely on a bare "any other relief this court deems fit".

Common Drafting Errors to Avoid

Several patterns recur in counter-affidavits that weaken otherwise defensible cases:

• Omnibus denial at the start: A line like "save as expressly admitted, all other allegations are denied" placed at the top does not substitute for para-wise engagement.
• Mixing law and fact in the para-wise reply: Legal arguments belong in written submissions or the preliminary objections section. A para-wise reply asserting that the applicant "has no cause of action" clutters the record without helping the court.
• Verification clause errors: The verification must state that the contents are true to the deponent's personal knowledge, or — where appropriate — based on information received and believed to be true, with the source identified. A defective verification exposes the affidavit to objection.
• Unmarked annexures: Every document annexed must be marked as an exhibit (Exhibit R-1, R-2, and so on) and referred to by exhibit number at the relevant paragraph. Unmarked annexures are often ignored.

Use LegalInk's counter-affidavit drafting tool to generate a structurally sound draft, then layer in your client's specific facts. To work out your reply strategy first, the counter-argument assistant helps identify which paragraphs to admit, deny, or challenge.

Frequently Asked Questions

Can a counter-affidavit be filed after the deadline set by the court?

An extension of time can be sought under Section 148 CPC, which gives the court discretion to enlarge time. Most courts grant one extension on application, but filing without either an extension or a condonation application risks the counter-affidavit being taken off record.

Is a para-wise reply mandatory, or can the counter-affidavit be narrative?

Para-wise reply is the established practice in most Indian civil courts and is effectively mandatory in interlocutory proceedings. A narrative format that does not track the applicant's numbered paragraphs is difficult for the court to follow and may result in paragraphs being treated as unanswered.

Who should be the deponent in a counter-affidavit filed by a company?

A duly authorised officer, authorised by a board resolution, should depose, and the resolution should be annexed. The deponent must be able to verify the facts personally or confirm what is within their knowledge in their official capacity.

Must preliminary objections be raised separately from the counter-affidavit?

No. Preliminary objections are properly included in the counter-affidavit itself, typically as the first substantive section before the para-wise reply, and can also be argued orally at the hearing. Raising them in the affidavit ensures they are on record regardless of how arguments unfold.

A disciplined counter-affidavit — clear preliminary objections, a thorough para-wise reply, and a precise prayer — is often what separates a threshold dismissal from a drawn-out interlocutory fight. The format is the argument.

Explore the full suite of civil litigation drafting tools at legalink.co.in.

Statute citations in this article are verified against LegalInk's verified law registry before publication. Always confirm the current text of any provision before relying on it.

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