DR.

SHAKUNTALA MISHRA
NATIONAL REHABILITATION
UNIVERSITY

CLASS-B.COM LL.B.(HONS.)
SEMESTER-7th
SUBJECT-LAW OF PLEADING,
DRAFTING AND CONVEYANCING
SUBMITTED TO- SANDEEP MISHRA SIR
SUBMITTED BY-DIVYA SRIVASTAVA
 ACKNOWLEDGEMENT

I pay my deep sense of gratitude to my teacher for encouraging me to

the highest peak and for providing me the opportunity to prepare this
assignment on “Critical Analysis of Written Statement in a Civil Suit”.
I am immensely obliged to my friends for their elevating inspiration,
encouraging guidance and kind supervision in the completion of my
assignment.

Working on this assignment was a source of immense knowledge to

me. I acknowledge with deep sense of gratitude, the encouragement
and inspiration received from my faculty members and colleagues. I
would also like to thank my parents for their love and support. I feel to
acknowledge my indebtedness and deep sense of gratitude to my guide,
my teacher, Sandeep Mishra Sir whose valuable guidance and kind
supervision given to me throughout the course.
 TOPIC

CRITICAL ANAYSIS

OF

WRITTEN STATEMENT
 CONTENTS

1) Introduction
2) Meaning of Written Statement
3) Filing of Written Statement
4) Duty of defendant to produce documents
5) Specific denial and deemed admission
6) Set-off
7) Counter claim by the defendant
8) Set-off and Counter claim
9) Subsequent Pleading and new ground of defence
10) Procedure when party fails to present Written Statement
11) Conclusion
12) Bibliography
 INTRODUCTION

Written Statement is a pleading of the defendant in the answer of the

plaint filed by the plaintiff against him. It is a reply statement of the
defendant in a suit specifically denying the allegations made against
him by the plaintiff in his plaint. The provision regarding the written
statement has provided in the Code of Civil Procedure, 1908.According
to a legal dictionary, the term ‘written statement’ means a pleading for
defence. In other words, a written statement is a reply of the plaint, in
which defendant deny or admit each and every allegation or facts given
in the plaint. The defendant can also file an additional written
statement. As filing the written statement is the right of the defendant
but the additional statement is based on the discretion of the court.
Further, in written statement defendant can put his case also under the
heading additional plea, and can state new facts or ground which is
necessary to defeat the opponent. If the 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. However, once the written
statement is filled the defendant cannot file a counterclaim or set off,
unless it is an additional written statement.

The object of providing the time schedule for filing the

written statement under Order VIII, Rule 1, Code of Civil Procedure is
to expedite and not to scuttle the hearing. The limitation for filing
written statement does not apply to the suits filed on the original side
of the chartered High Courts. Order VIII, rule 1 of the first schedule of
the Code of Civil Procedure, which says that the defendant may, and,
if so, required by the court shall, at or before the first hearing or within
such time as the court may permit, present a written statement at his
option at or before the first hearing of the suit and even afterwards
within such time that the court may permit. After substitution for rule
1 of Order VIII by the Code of Civil Procedure (Amendment) Act (22
of 2002) with effect from July 1, 2002 the defendant shall, within thirty
days from the date of service of summons on him, present a written statement
of his defence. But where the defendant fails to file written statement
within the said period of 30 days, he shall, on an application filed by
him for extension of time, 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 extension of time shall not be later then ninety days from
the date of service of summons.
MEANING OF WRITTEN STATEMENT

The expression “Written Statement” has not been defined in the Code
of Civil Procedure,1908. It is a term of specific meaning ordinarily
signifying reply to the plaint filed by the plaintiff. In other words, it is
the pleading of the defendant wherein he deals with the material facts
alleged by the plaintiff in his plaint and also states any new fact in his
favour or takes legal objections against the claim of the plaintiff. In
other Written statement is the defence of the defendants. A 'defence'
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 want 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 the Code of Civil Procedure. If the suit is numbered,
the Court will order the issue of summons as per the proviso to Order
V Rule 1 of CPC, the Court may direct the defendant to file a written
statement of his defence while issuing summons to him. Since the
written statement is a pleading of the defendant, every general rule
applicable to pleadings as stated in Order VI of CPC is applicable to
written statement also.
 FILING OF WRITTEN STATEMENT

• When the notice has been issued to the defendant, he is required

to appear on the date mentioned in the notice.

• Before such date, the defendant is required to file his "written

statement", that is his defence against the allegation raised by
plaintiff, within 30 days from date of service of notice, or within
such time as given by court.

• The written statement should specifically deny the allegations,

which defendant thinks are false. Any allegation not specifically
denied is deemed to be admitted.

• The written statement should also contain verification from the

Defendant, stating that, the contents of written statement are
true and correct.

• The time period of 30 days, for filing a Written Statement, can be

extended to 90 days after seeking permission of the court.
 DUTY OF DEFENDANT TO PRODUCE
DOCUMENTS

According to Order VIII, Rule 1A of the Code of Civil Procedure,1908.

It is the duty of defendant to produce documents upon which his relief
relied or relief claimed.

(1) Where the defendant bases his defence upon a document or relies
upon any document in his possession or power, in support of his
defence or claim for set-off or counter-claim, 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.

Where the defendant relies on any document (whether or not in his

possession or power) in support of his defence or claim for set-off or
counter-claim he shall enter such a document in a list, and shall:

(a) If a written statement is presented, annex the list to the written

statement and where he claims a set-off or makes a counter-claim based
on a document in his possession or power, he shall produce it in court
at the time of presentation of the written statement and shall at the same
time deliver the document or copy thereof to be filed with the written
statement.

(b) if a written statement is not presented, present the list to the court
at the hearing of the suit.

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.
If no such list is so annexed or presented, the defendant shall be allowed
such further period for the purpose as the court may think. A document
which ought to be entered in the list and which is not so entered, shall
not, without the leave of the court, be received in evidence on behalf of
the defendant at the hearing of the suit. Where the plaintiff in second
appeal is allowed to amend his plaint, the defendant must also be given
an opportunity to file an additional written statement before passing a
decree or order.

A person in his capacity as a defendant can raise any legitimate plea

available to him under law to defeat the suit of the plaintiff. This would
also include the plea that the sale deed by which title to the property
was intended to be created upon.
 SPECIFIC DENIAL AND DEEMED
ADMISSION

Rule 3 of Order VIII requires that the defendant must deal specifically
with each allegation of fact of which he does not admit the truth. Rule
5 provides that every allegation of fact in the plaint, if not denied in the
written statement shall be taken to be admitted by the defendant. This
rule says that any allegation of fact must either be denied specifically
or by a necessary implication or there should be at least a statement that
the fact is not admitted. If the plea is not taken in that manner, then the
allegation shall be taken to be admitted.

In election petition the allegations of corrupt practices were made on

the basis of speeches of a speaker in presence of the candidate. The
candidate denied that expressly or impliedly he had consented to the
alleged offending speeches and he asserted that he was not connected
with any act of the speaker or responsible for any of her actions and he
has not invited her. The denial envisaged under Order VIII, Rule 5 was
complete and no implied admission of averments in petition can be read
by non-traverse.
 SET- OFF

Set off is reciprocal acquittal of debts. In an action to recover money,

set-off is a cross-claim for money by the defendant, for which he might
maintain an action against the plaintiff, and which has the effect of
extinguishing the plaintiff’s claim pro tanto. Order VIII, Rule 6 of the
Code of Civil Procedure, 1908 provides particular of set-off to be given
in written statement.

Particulars of set-off

1) Where in a suit for the recovery of money the defendant claims

to set-off against the plaintiff’s demand any ascertained sum of
money legally recoverable by him from the plaintiff, not
exceeding the pecuniary limits of the jurisdiction of the court, and
both parties fill the same character as they fill in the plaintiff’s
suit, the defendant may, at the first hearing of the suit, but not
afterwards unless permitted by the court, present a written
statement containing the particulars of the debt sought to be set-
off.

2) Effect of set-off
The written statement shall have the same effect as a plaint in a
cross-suit so as to enable the court to pronounce a final judgment in
 respect of both the original claim and of the set-off. (Order VIII,
Rule 6).

3) The rules relating to a written statement by a defendant apply to

a written statement in answer to a claim of set-off.

In order to constitute legal set-off, the following conditions must

be fulfilled:

(a) The suit must be for recovery of money.

(b) The defendant must claim an ascertained sum of money. A sum of

money due in respect of a disputed transaction cannot constitute an
ascertained sum.

(c) That ascertained sum must be legally recoverable from the plaintiff,
i.e., it is not barred by the law of limitation.

(d) The plaintiff’s claim and the set-off must be claimed in the same
character. The amount must be recoverable by the defendant and if
there are more than one defendant then by all the defendants. Again,
the amount must be recoverable by the defendant from the plaintiff and
if there are more than one plaintiff then from all the plaintiffs.

(e) The set-off should be within the pecuniary jurisdiction of the court.
The above provisions further establish that the court must treat the
claim of the defendant exactly as if the defendant had filed a plaint and
the court must pass a decree in favour of the defendant, if his claim is
established.
 COUNTER CLAIM BY DEFENDANT

Order VIII, Rule 6A of the Code of Civil Procedure provides:

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 defence or before the time limited for delivering his defence
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 counter-claim 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 plaints.
Rule 6A to 6G of Order VIII of the Code of Civil Procedure, 1908 deals
with counter claim. A written statement making a counter-claim has the
same effect as a cross-suit. When an application for permission to sue
for counter-claim in forma pauperis is filed, the court is bound to
consider that application and dispose it of according to law. Where in
any suit a set-off or counter-claim is established as a defence against
the plaintiff’s claim, and any balance is found due to the plaintiff or
defendant, as the case may be, the court may give judgment to the party
entitled to such balance. The rules relating to a written statement by a
defendant shall apply to a written statement filed in answer to a counter-
claim. A defendant can file counter-claim in respect of a cause of action
which is independent of cause of action averred by the plaintiff. It need
not confine to money claim or to cause of action of the same nature as
of the plaintiff or related to or be connected with the original cause of
action or matter pleaded by the plaintiff. Where in any suit a set-off or
counter-claim is established as a defence against the plaintiff’s claim
and any balance is found due to the plaintiff or the defendant, as the
case may be, the court may give judgement to the party entitled to such
balance.
SET-OFF AND COUNTER CLAIM

The distinction between set-off and counter-claim are:

• Set-off is a statutory defence to a plaintiff’s action, whereas a

counterclaim is substantially a cross-action.

• Set-off must be for an ascertained sum or must arise out of the

same transaction as the plaintiff’s claim. A counter-claim need
not arise out of the same transaction.

• Set-off is a statutory ground of defence and has to be pleaded

in the written statement. It can be sued as a shield and not as a
sword. Counter-claim, on the other hand, does not afford any
defence to the plaintiff’s claim. It is a weapon of offence which
enables the defendant to enforce his claim against the plaintiff
as effectually as in an independent action. It is a sort of cross-
action.

• If the statute of limitation is pleaded to a defence of set-off, the

plaintiff in order to establish his plea has to prove that set-off
was barred when the plaintiff commenced the action. It is not
enough to prove that it was barred at the time when it was
pleaded. In the case of a counter-claim, it is enough for the
plaintiff to prove that the counter-claim was barred when it was
pleaded.
• An equitable set-off is a claim by the defendant in defence,
which generally cannot exceed the plaintiff’s claim. A counter-
claim the defendant may, however, exceed the plaintiff’s claim,
being in nature of the cross action. Under the provision rule 6-
F of Order 6, if in any suit a set off or counter claim is
established as a defence against plaintiffs claim and any
balance is found due to the defendant as the case may be the
court may give judgment to the party entitled to such balance.
 SUBSEQUENT PLEADING AND NEW
GROUND OF DEFENCE

Order VIII, Rule 9 of the Code of Civil Procedure, 1908 provides that,
No pleading subsequent to the written statement of a defendant other
than by way of defence 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 for
presenting the same.

Order VIII, Rule 8 deals with new ground of defence. But any ground
of defence which has arisen after the institution of the suit or the
representation of a written statement claiming a set-off may be raised
by the defendant or plaintiff, as the case may be, in his written statement
or additional written statement.
PROCEDURE WHEN PARTY FAILS TO

PRESENT WRITTEN STATEMENT

Order VIII, Rule 10 of the Code of Civil Procedure deals with the
procedure procedure when party fails to present written statement
called for by Court. According to Rule 10, Order VIII, 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 be, 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 a 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.
 CONCLUSION

At last, it is clear that the written statement is a reply statement of

defendant to the plaintiff. In this defendant state his defence and deny
the allegation of the plaintiff as per his material facts. It is a method to
disclosed both sides of the suit in both the party present his favour by
the way of the plaint, the plaintiff and by the way of written statement,
the defendant in the court. It can be concluded under Order VIII Rule
9 of the Code of Civil Procedure while filing an additional written
statement, it is open to the defendant to add a new ground of defence
or substituting or altering the defence or even taking inconsistent please
in the written statement as long as the pleadings do not result in causing
grave injustice and irretrievable prejudice to plaintiff or displacing him
completely. It is a well-established principle that the courts should be
more generous in allowing the amendment of a written statement than
in the case of the plaint. Further, it is the duty of the Judge to prevent
misuse of the pleadings by a litigant. The courts have to ensure that
what could not be achieved by getting the pleading amended should not
be allowed to be got over, by filing reply or rejoinder as the case may
be and vice versa.
 BIBLIOGRAPHY

I have taken help from the following:

1) The Code of Civil Procedure, 1908.

Websites

1) www.lawnotes4u.in
2) www.lawnn.com
3) https://blog.ipleaders.in