Written statement

SUBMITTED TO: SUBMITTED BY:Mrs. ANU MEHRA MANOJ KUMAR B.B.A.LL.B (H) 7TH SEMESTER

ACKNOWLEDGEMENT 

Page 2

I would like to express my special thanks of gratitude to my teacher       MRS. ANU 

MEHRA who gave me the golden opportunity to do this wonderful project on the topic 

WRITTEN STATEMENT, which also helped me in doing a lot of Research and I came 

to know about so many new things. I am really thankful to her.

Secondly I would also like to thank my parents and friends who helped me a lot in 

finalizing this project within the limited time frame.

Table of Contents Pg. no.

Acknowledgment………………………………………………………………………………………………….…2

Table of Contents…………………………….………………………………………………………………….…...3

Introduction & Meaning…………………………………………………………………………………………..5

Who may file written statement?.…………………………………………………………………………….6

Page 3

Time for filing of written statement(Order VIII Rule 1)……..………………………………………6

Duty of defendant to produce document upon which relief is claimed or relied upon by him (Order VIII Rule 1A)…………………………………………………………………………………….7

New Facts Must be Specially Pleaded (Order VIII Rule 2)…………………………………………7

Denial to be Specific(Order VIII Rule 3)…………………………………………………………………..7

Evasive denial(Order VIII Rule 4)……………………………………………………………………………8

Specific Denial(Order VIII Rule 5)……………………………………………………………………...……8

Procedure Where Written Statement by the Defendant is not Filed…………………….…….8

Particular of Set-of to be given in Written Statement (Order VIII Rule 6 CPC)……………9

Counter-Claim by Defendant (Order VIII Rule 6-A)………………………………………………….10

Counter claim to be stated (Order VIII Rule 6-B……………………………………………………….12

Exclusion of counter claim (Order VIII Rule 6-C)………………………………………………….…..12

Effect of discontinuance of suit- (Order VIII Rule 6-D)…………………………………………..….12

Default of plaintiff to reply to counter claim (Order VIII Rule 6-E)………………………….…12

Relief to defendant where counter claim succeeds (Order VIII Rule 6-F)…………………...13

Rules relating to written statement to apply (Order VIII Rule 6-G)……………………………13

Defense or set off founded on separate grounds- (Order VIII Rule 7)…………………….…..13

New ground of defense (Order VIII Rule 8)………………………………………………………………13

Subsequent pleadings (Order VIII Rule 9)…………………………………………………………….…14

Procedure when party fails to present written statement called for by Court. (Order VIII Rule 10)…………………………………………………………………………………………….…14

Bibliography……………………………………………………………………………………………………….…15

Page 4

Page 5

INTRODUCTION & MEANING

Order 8 enacts law relating to a written statement. Rules 1 to 5 and 7 to 10 requires particulars to be stated in a written statement, grounds of defense and production of documents. Rules 6 and 6-A to 6-G deal with doctrines of set-off and counterclaim respectively.1

The expression “written statement” has not been defined in the Code. In Rachappa v. Gurudiddappa2 the Supreme Court held that the term written statement have specific connotation ordinarily specifying a reply to the plaint filed by the plaintiff. Thus a written statement is the pleading of the defendant wherein he deal with every material fact alleged by the plaintiff in his plaint and also states any facts in his favour or takes legal objections against the claim of the plaintiff. Where the defendant, in his written statement, plead set off the plaintiff may file his written statement thereto. Order 8 of the Code provides the law relating to a written statement.3

In legal dictionary, the word written statement means a pleading for defense. However, the expression ‘written statement’ has not been defined in the code; it is a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff. In other words, a written statement is the pleading of the defendant wherein he deals with every material fact alleged by the plaintiff in his plaint and also states any new facts in his favour or takes legal objections against the claim of the plaintiff.4

Written statement is the defense of the defendants. A 'defense' called the written statement, in general this is a reply of plaint, in which defendant deny or admit the each and every allegation or facts given in the plaint. Denial or admission must be Para wise and clear. In the written statement defendant can put his case also under the heading additional plea, and can states new facts or ground which is necessary to defeat the opponent. If defendant wants to put his own claim against the plaintiff he can put it by way of set- off and counterclaim u/o 8 Rule 6 and 6A of C.P.C.5

1 Justice C.K. Thakker(Takwani) et al., Civil Procedure with Limitation Act 1963 Pg. 229 (17th ed. 2013)2 AIR 1989 SC 635: (1989) 3 SCC 245. See also, Food Corporation of India v. Yadav, AIR 1982 SC 1307: (1982) 2 SCC 499. 3 Gayathri Womens Welfare Association v. Gowramma, JT 2011 (1) SC 315: 2011 (1) SCALE 379; Venture Global Engineering v. Satyam Computer Services Ltd. AIR 210 SC 3371: [2010] 9 SCR 858; Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. 2010 (7) SCALE 293: (2010) 8 SCC 24. 4 HImanshu Arora, Written Statement- Order VIII of CPC of India, Law is pure Logic (Sept. 3, 2016, 8:19PM) http://himanshuaroras.blogspot.in/2013/02/written-statement-order-viii-of-cpc-of.html5 Narinder Kumar Sarin, Written Statement, Sarin Advocate (Sept. 3, 2016, 8:21PM), https://sites.google.com/site/sarinadvocate/drafting-and-pleading/written-statement

Page 6

Who may file written statement?

A written statement may be filed by the defendant or by his duly constituted agent. Where there are several defendants and a common written statement is filed by them, it must be signed by all of them. It is, however, sufficient if it is verified by one of them who is aware of the facts of the case and is in a position to file an affidavit. But a written statement filed by one defendant does not bind other defendants.6

Time for Filing of Written Statement (Order VIII Rule 1)

"l. Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense :

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons".

Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

Time for filing written statement is fix for 30 days from the date of service of summons on him and maximum time limit from the date of service of summons is ninety days. Order, 8 Rule 1

Provision of Order 8,Rule 1.are directory in nature even after expiry of stipulated period court can extend time to file written statement.7

6 Jugeshar Tiwari v. Sheopujan Tiwary, AIR 1986 Pat 35: 1986 BJL 460.7 Rameshwar Lal v. Daya Nand, AIR 2005: AIR 2002 SC 2487.

Page 7

Duty of defendant to produce document upon which relief is claimed or relied upon by him (Order VIII Rule 1A)

"(1) Where the defendant bases his defense upon a document or relies upon any document in his possession or power, in support of his defense or claim for set-off or counterclaim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff s witnesses, or

(b) handed over to a witness merely to refresh his memory."

New Facts Must be Specially Pleaded (Order VIII Rule 2)

Order VIII, Rule 2 requires that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the-transaction is either void or voidable in point of law, and all such grounds of defense as, if not raised, would be likely to take the opposite party by surprise. or would raise issues of fact not arising out of the plaint, as for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

Denial to be Specific(Order VIII Rule 3)

Order VIII Rule 3 requires that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

 "if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved."8

8 Man Kaur(Dead) by Lrs v. Hartar Singh Sangha, AIR 2010 SCC 512

Page 8

Evasive denial(Order VIII Rule 4)

Rule 4 of Order VIII of C.P.C. says that where a defendant denies an allegation of fact in a plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. 

Specific Denial(Order VIII Rule 5)

(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against person under disability.

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]"

Procedure Where Written Statement by the Defendant is not Filed.

"Order VIII provides the procedure where written statement by the defendant is not filed. Order VIII Rule 5(2)(4) provides that where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint and after pronouncing the judgment a decree is required to be drawn up in accordance with such judgment. Under Order VIII Rule 10 where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. This rule gives discretion to the Court either to pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit."

Page 9

While interpreting Order VIII, this Court in Balraj Taneja & Another v. Sunil Madan & Another9 held that merely because written statement is not filed the Court should not proceed to pass judgment blindly and observed thus:-

"The court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the courts satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement."

Supreme Court of India

Union Of India And Others vs Manager M/S Jain And Associates on 6 February, 2001

In Badat and Co., v. East India Trading Co.10, (1) hon'ble Court observed regarding the requirements of the written statement under Order VIII, Rules 3, 4 and 5, as follows

" These three rules from an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non- compliance. The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the. admission itself being proof, no other proof is necessary."

Particular of Set-of to be given in Written Statement (   Order VIII Rule 6 CPC)

A reading of Rule 6 of Order VIII CPC would show that following conditions have to be satisfied before a defendant is entitled to set-off under that Rule:-

"A defendant may claim a set-off under this rule if the following conditions are satisfied, but not otherwise--

I. The suit must be one for the recovery of money.

II. As regards the amount claimed to be set-off--

(a) it must be an ascertained sum of money;

(b) such sum must be legally recoverable;

9 (1999) 8 SCC 396.10 (1964) AIR 538; (1964) SCR (4) 19.

Page 10

(c) it must be recoverable by the defendant or by all the defendants if more than one;

(d) it must be recoverable by the defendant from the plaintiff or all the plaintiffs if more than one. Thus, where th defendant is sued by the agent, he cannot set-off what is due to him from the principal as the principal is not the plaintiff;

(e) it must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is brought; and

(f) both parties must fill, in the defendant's claim to set-off the same, character as they fill in the plaintiff's suit."

NOTE:

"The right of set-off is a ground of defense and is required by Order VIII rule 6, of the Civil Procedure Code to be pleaded as a part of the written statement of the defendant. If established it is an answer to the plaintiff's claim wholly or pro tanto as the case might be. The defendant, if entitled to a set-off, is not liable to make satisfaction of the claim made against him or so much of it as equals the amount which he is entitled to set-off. It a set-off equal to the plaintiff's claim is established it is an absolute defense entitling the defendant to a decree of dismissal of the suit. The processual law provides that the written statement containing a set-off has the same effect as a plaint in a cross suit so as to enable the court to pronounce a final judgment and a single decree in respect of both the original claim and the set-off: See Order VIII, rule 6(2) and Order XX, rule 19, of the Civil Procedure Code. This, however, does not mean that a written statement containing a plea of set-off is to be treated as a plaint in all respects and for all purposes." 

16." Principles of equitable set-off is recognized in Rule 6 of Order VIII CPC. The essence of such a claim is that there must be some connection between the plaintiff claim for a debt and the defendant's claim to set-off, which will make it equitable to dry up the defendant to a separate suit. In these cases where cross demands arise out of the same transaction or are so connected in their nature and circumstances that can be looked upon as part of one transaction, equitable set-off is permissible. This principle is made applicable even in those cases where the claim of the defendant is for an unascertained sum like that of damages but arising out of same transaction."

Delhi High Court

Crb Capital Markets Ltd. vs Smt. Bimla Devi Sahney Deceased ... on 31 May, 2005

Equivalent citations: IV (2005) BC 53, 2006 132 CompCas 788 Delhi

Counter-Claim by Defendant (Order VIII Rule 6-A)

(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defense or

Page 11

before the time limited for delivering his defense has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints.

NOTE:-

In the case of Ramesh Chand Ardawatiya11, "28. Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, honorable Apex Court held, “we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 9 read with Rule 6A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counterclaim may be filed by way of a subsequent pleading under Rule 9. in the latter two cases, the counter-claim though referable to Rule 6A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI, Rule 17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII, Rule 9 of the C.P.C. if sought to be placed on record by way of subsequent pleading.

Hon'ble Madras High Court in a case of 

Southern Ancillaries Private ... vs Southern Alloy Foundries ... on 28 March, 200312

25." We sum up the legal position as under:-

i] The defendant can make a counter claim even after filing the written statement but that should be before the commencement of recording of evidence.

ii] Generally an amendment once allowed will relate back to the date of filing of the plaint/written statement.

iii] Court may make it clear while allowing such amendment that it will not relate back to the date of filing of the plaint/written statement.

11 Supra12 AIR 2003 Mad 416:(2003) 2 MLJ 56 ¶ 25.

Page 12

iv] Even if in the order allowing amendment it is not stated that the order would not relate back, it will be open to the aggrieved party to contend that the order (allowing amendment) would not relate back at the time of the trial of the suit.

v] If after allowing the amendment, the concerned party does not take care to amend the plaint/written statement within the period allowed or within 14 days where no period is fixed, or within the extended period, the plaintiff or defendant, as the case may be, shall not be permitted to amend after the expiration of the period and the Court has to only consider the unamended plaint or written statement."

 Counter claim to be stated (Order VIII Rule 6-B)

Where any defendant seeks to rely upon any ground as supporting a right of counter claim, he shall, in his written statement, state specifically that he does so by way of counter claim

Exclusion of   counter claim   (Order VIII Rule 6-C)

Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter claim, apply to the court for an Order that such counter claim may be excluded, and the court may, on the hearing of such application make such Order as it thinks fit

Effect of discontinuance of suit-   (Order VIII Rule 6-D)

If in any case in which the defendant sets up a counter claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter claim may nevertheless be proceeded with

Default of plaintiff to reply to counter claim   (Order VIII Rule 6-E)

If the plaintiff makes default in putting in a reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter claim made against him, or make such Order in relation to the counter claim as it thinks fit.

Page 13

Relief to defendant where counter claim succeeds   (Order VIII Rule 6-F)

Where in any suit a set off or counter Claim is established as a defense against the plaintiffs claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the court may give judgment to the party entitled to such balance.

Rules relating to written statement to apply   (Order VIII Rule 6-G)

The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter claim

Defense or set off founded on separate grounds-   (Order VIII Rule 7)

Where the defendant relies upon several distinct grounds of defense or set off or counter claim founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly

HIGH COURT AMENDMENT

Karnataka- After Rule 7 and before Rule 8, add the following as Rule 7-A:

7-A, Where the defendant seeks the permission of the Court under Rule 8 of Order 1 of this Code  to defend the suit on behalf of or for the benefit of himself and other persons having the same interest as the defendant in the subject-matter of the suit he shall file an application supported by an affidavit setting out the particulars detailed in sub-rule (2) of Rule 4 of Order VII of this Code Notice of such an application shall be given to all parties to the suit, and if the permission sought is granted the plaint may be amended by inserting a statement that the defendant is with the leave of the Court sued as the representative of at ::sons interested in subject-matter of the suit (30.3.1967)

New ground of defense (Order VIII Rule 8)

Any ground of defense which has arisen after the institution of the Suit or the presentation of a written statement claiming a set off or counter claim may be raised by the defendant or plaintiff, as the case may be, in his written statement

Page 14

Subsequent pleadings (Order VIII Rule 9)

No pleading subsequent to the written statement of a defendant other than by way of defense to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit: but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same

Procedure when party fails to present written statement called for by Court.(Order VIII Rule 10)

Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may b, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

Procedure Where Written Statement by the Defendant is not Filed. "Order VIII provides the procedure where written statement by the defendant is not filed. Order VIII Rule 5(2)(4) provides that where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint and after pronouncing the judgment a decree is required to be drawn up in accordance with such judgment. Under Order VIII Rule 10 where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. This rule gives discretion to the Court either to pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit."

Page 15

Bibliography

Websites:-

https://sites.google.com http://himanshuaroras.blogspot.in https://books.google.co.in

Books:-

Jatinder Kumar Das, Code of Civil Procedure (2014 ed.) C.K.Takwani, Civil Procedure with Limitation Act, 1963 (17th edition)

Act:-

Civil Procedure Code, 1908

Page 16