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I. WRITTEN STATEMENT: RULES AND EXPLANATION:

Introduction & Meaning:

In the 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 favor or takes
legal objections against the claim of the plaintiff.
Thus, a written statement is the statement of the defendant in his defense in which he either
admits the claims or denies the facts alleged by plant leaf in his plaint. The defendant can
state new facts of the case and legal objections against the claim asked by the plaintiff.

Order VIII Rule 1 of the civil procedure code provides that, after the service of summons,
the defendant should file the written statement within 30 days. But in case if the defendant
fails to submit it before 30 days, then he can file his statement within 90 days as the Court
allows him to do so.

Characteristics of the written statement:

i. The defendant has to appear in court on the date mentioned in the summons.
ii. Before the date of appearing in the court, the defendant needs to file a written
statement in the court.
iii. The statement should deny or accept the allegations imposed on him. Any
allegations which are not answered by the defendant are deemed to be accepted
by the defendant.
iv. The statement must contain the verification of the defendant by stating that the
content written in the statement is true and correct as per the knowledge of the
defendant.
v. If the defendant fails to submit the written statement before 30 days, he can seek
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the court to extend the time, in that case, the court may extend the time period
upto 90 days1.

Rules related to the written statement:

All the rules related to the written statements are given under Order VIII of the CPC.

Order VIII Rule 1

Order VIII Rule 1 provides that, when the defendant received the summons by which he
came to know that a lawsuit has been filed against him:

i. He has to file the written statement within 30 days from the date when he
received the summon. If the defendant fails to submit it within 30 days, the court
may extend this time up to 90 days. The court will record the legitimate reason
of the defendant for the delay. The time period cannot be extended more than 90
days.
ii. The judge can charge some cost if the defendant fails to file the statement within
30 days. If the defendant fails to file the written statement within 120 days from
the date of the service of summons (30+90), the court shall forfeit the
defendant’s right to submit the written statement.
iii. After the expiry of 120 days, the court shall pronounce the judgment.

Thus, a defendant should, within 30 days from the service of summons on him, present a
written statement of his defense. The said period, however, can be extended up to 90 days,
but for reasons to be recorded for such extension.

A written statement should be drafted carefully and artistically. All the general rules of
pleading apply to a written statement also. Before proceeding to draft a written statement.

1
Takwani, C.K, Civil Procedure, 5thedition (reprinted) 2007, Eastern Book Company, New Delhi, P.175.
 Page |7

It is absolutely necessary to examine the plaint carefully. Like a plaintiff, a defendant may
also take a number of defenses, either simply or in the alternative, even though they may
be inconsistent, provided they are maintainable at law and are not embarrassing.

Power of court to condone the delay in the filing of written statement:-

Though a defendant is required to file a written statement within 30 days after receipt of
summons and though the court can extend the time till 90 days, the court is not divested of
any power to fix a further time for filing the written statement. It is well settled that this
cardinal principle of interpretation of law with an enactment has to be read as a whole and
then the entire section has to be read and thereafter the Act has to be interpreted section by
section. One Rule or one Section in the enactment cannot be a guiding factor for arriving
at the intendment of the legislature. The very fact that Rule 10 is re-introduced by Act 22
of 2002 by the Parliament would show that the Parliament never intended the Civil Court
to pronounce judgment immediately after the failure on the part of the defendant to file a
written statement within 90 days.

Speaking for a three-judge Bench of the Supreme Court, J.Sabharwal explained the object
behind the amendment of O 8, r l and the manner in which the provision is to be construed.
In paragraph 21 of the judgment it was observed as follows:

“The use of the word (shall) in Order VIII Rule l by itself is not conclusive to
determine whether the provision is mandatory or directory. We have to ascertain the
object which is required to be served by this provision and its design and context in which
it is enacted. The use of the word ‘shall` is ordinarily indicative of mandatory nature of the
provision but having regard to the context in which it is used or having regard to the
intention of the legislation, the same can be construed as directory. The rule in question
has to advance the cause of justice and not to defeat it, the rules of procedure are made
to advance the cause of justice and not to defeat it. Construction of the rule or procedure
which promotes justice and prevents miscarriage has to be preferred. The rules of
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procedure are handmaid of justice and not its mistress. In the present context, the strict
interpretation would defeat justice.”2

Order VIII Rule 1A:-

This rule talks about the protection and production of the document the defendant relies
upon. According to this rule, the document which is the base of the defence given by the
defendant should be delivered to the court on the date of filing the written statement and
by attaching the duplicate copy of this document.
i. The document can be related to the set-off or counter-claim. If the document is
not in his possession, then the defendant has to state this in whose possession it
is.

ii. If the defendant fails to produce such document at the time of filing statement,
the court will not allow him to submit that document as proof in the lawsuit,
without the leave of the court.

Sub-rule (I) requires that the documents on which the defendant places reliance either for
his defence, or claim for set-of or counter-claim shall be entered in a list if those documents
are in his possession. This list of documents along with the document itself was required
to be presented in court at the time of filing-the written statement. Sub-rule (3) enacts a bar
and prevents the defendant from filing such documents later on except with the permission
of the court.

Production of documents and list of documents:

2
Prasad B.M , ‘MullaThe Code Of Civil Procedure’, 17th edition, Vol 2 , Lexis Nexis Butterworth, Wadhwa
Publications, Nagpur, P.468
 Page |9

Save as otherwise provided in Rule 8-A, where the defendant relies on any document
(whether or not in his possession or power) in support of his defense 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 counterclaim 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);
and

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

Order VIII Rule 2:

Order VIII Rule 2 is related to the new facts which should be pleaded. The rule says that
the defendant must have raised the important facts related to the case which shows that the
suit is not maintainable, or the transaction which is in the issue is made by a void or
voidable contract, etc. These facts will help the defendant to win the case because these
facts can be related to the limitation and fraud etc.

The defendant must raise by his pleading all matters which show the suit not be
maintainable, or that the transaction is either void or voidable in point of law, and all such
grounds of defence 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.

The effect of the rule is, for reasons of practice and justice and convenience, to require the
party to tell his opponent what he is coming to the Court to prove, if he does not do that,
the Court will deal with it in one of two ways. It may say that it is not open to him, that
he has not raised it and will not be allowed to rely on it; or it may give leave to amend by
raising it and protect the other party. If necessary, by letting the case stands over. The rule
 P a g e | 10

is not one that excludes from the consideration of the Court the relevant subject-matter
for decision simply on the ground that it is not pleaded. It leaves the party at the mercy of
the Court and the Court will deal with him as is just 3.
The effect of the rule is, for reasons of practice and justice and convenience, to require the
party to tell his opponent what he is coming to the court to prove. And therefore, if the
plea is not taken, it may lead the plaintiff to believe that the defendant has waived his right
by not relying on that point. And the defendant will not be entitled, as of right, to rely on
any ground of defence which he has not taken in his written statement 4. Where the
defendant has stated in his pleadings all the facts on which he bases his defence without
stating the legal effect thereof, the defence cannot be rejected on the ground that the legal
effect of the facts was not stated.
Right of defendant to raise all pleas available to him:

Suit for possession filed by plaintiff on basis of sale-deed in his favour. Possession of
property sought from one of the defendants. The said defendant can raise all pleas available
to him to defeat suit of plaintiff.

Order VIII Rule 3: Denial to be specific:

Order VIII Rule 3 says that the denial made by the defendant in a written statement must
be specific, not general except in the case of damages. 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.

Order VIII Rule 3A:-

If the defendant is accepting any fact, he can provide the general answer but if he is denying
any fact then he must have given the reason behind that why he is denying the particular

3
Robinson’s Settlement, In re (1912) 1 Ch D 717 (728).
4
Udhav Singh v. MadhavRaoScinidia , (1977) 1 SCC 511.
 P a g e | 11

fact. This rule also deals in case if the defendant challenges the jurisdiction of the court for
that lawsuit. He must have provided the specific grounds for that.

Order VIII Rule 4: Evasive Denial:-

When the defendant is making the denial of any fact, the denial must be clear and easy to
understand. For example, if the plaint has alleged that the defendant had received a
particular amount, and if the defendant wants to deny this fact, he must have denied that
he did not receive that sum or any part. Also, if he received the sum but not a particular
amount which is alleged, then he must have written how much amount he received.
Thus, where a defendant denies an allegation of fact in the 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.

Order VIII Rule 5: Specific Denial:-

It talks about specific denial that the defendant must have to deny specifically. If the
defendant does not take necessary implications or just give the statement that the fact stated
in the plaint is not admitted, it will be considered as the defendant has admitted the facts
given in the plaint. This rule does not apply to disabled people.

The rule clearly says that the person must have given the specific reason that why he is
denying the fact given into the plaint. He cannot just say that I AM NOT ADMITTING
THIS FACT. He must be specific on this answer.

The rule also provides that if the defendant fails to submit his written statement in the court
on time, the court may decide its judgment on the basis of the facts provided in the plaint
 P a g e | 12

by the plaintiff. This rule is not applicable to disabled people. Also, the court may ask the
plaintiff to provide evidence to prove his fact alleged in the plaint.

The court will provide the decree of the court after pronouncing the judgment in the court,
even though the defendant was unable to submit his statement.

Specific Denial and deemed Admission:

Rule 3 of Order VIII requires that the defendant must deal specifically with each allegation
offact 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, What this rule says is 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.

The combined effect of Rules 3, 4 and 5 has been considered by Subba Rao, J. in the case
of Badat& Co. v. East India Trading Co, 5 in the following words:

"These three rules form an integral 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."

Illustrations:

a. In an action against a lessee to set aside the lease, the plaintiff alleges in his plaint

5
AIR 1964 SC 538
 P a g e | 13

that the defendant offered to the manager of the plaintiff a bribe of Rs 5000at the
defendant’s office on January 15, 1997; and the defendant in his written statement
states that he did not offer to the plaintiff’s manager a bribe of Rs 5000at the
defendant’s office on January 15, 1997; the denial is evasive. Here the point of
substance is that a bribe was offered (neither the day nor the amount) and that is not
met. The defendant might have offered any other amount on another day at a different
place. Since the point of substance is the offer of bribe, it must be clearly and
specifically denied and the defendant should state that he never offered a bribe of Rs
5000 or of any other sum, on any day, at any place, to the plaintiff’s managers alleged
or at all.
b. Similarly, if the plaintiff asserts: The defendant broke and entered into the shop of the
plaintiff and seized, took and carried away all the furniture, stock-in-trade, and other
effects which were therein.

c. The correct traverse will be:

The defendant never broke or entered into the shop of the plaintiff or seized, took or
carried away any of the furniture, stock-in-trade, and other effects which were therein.But
if the plaintiff makes general allegations in the plaint and they are answered by equally
general denials, no complaint can be made by the plaintiff on the ground that they are not
specific.14Thus, where the plaintiff alleges in the plaint that the order of his removal from
service was violative of Articles 14 and 16 of the Constitution of India since he was
arbitrarily picked up, the denial in the written statement of the allegation that there had
been a violation of Articles 14 and 16 of the Constitution of India is sufficient. 6

The rule of implied admission by 'non-traversal' has not been strictly applied to
pleadings in our country. The court has discretion to require a party to prove a particular
fact, notwithstanding the implied admission thereof by the opposite party. 7
The Bombay High Court has construed the rule more strictly and has held that if there is

6
Assam v. Atmaram Kumar, Supreme Court and full Bench Rent Cases, 1993, P.404.
7
East India Trading co. v. Badat& co. AIR 1959 Bom 414.
 P a g e | 14

no pleading by the defendant denying the allegations in the plaint, the court may take the
facts stated in the plaintiff admitted unless the court in its discretion under the proviso
requires any fact so admitted, to be proved otherwise than by such admission. The
Karnataka High Court has accepted the Bombay view. 8In another case the Karnataka
High Court has held that a judgment in favour of the plaintiff is not automatic on the
failure of the defendant to file written statement. The court has to consider the case of
the plaintiff before granting a decree in his favour. 9

Except damages:-

It is not necessary for a defendant, in a suit for damages, to deny specifically the damages;it
is quite sufficient if he pleads generally to the damages. 10

Order VIII Rule-7:- Defence or set-off founder upon separate grounds:

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

Order VIII Rule-8:- New ground of defence:

Any ground of defence 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.

The additional ground of defence must be taken before the commencement of trial. A plea
that the suit was liable to be stayed in view of an arbitration clause in the contract was held

8
Sakini Bee v. Mohd Ameen Saheb AIR 1976 Kant 226.
9
Syed Ismail v. Shamshian Begum AIR 2001 Kant 99.
10
National Insurance Co. v. Calcutta Duck Labour Board AIR 1977 Cal 492.
 P a g e | 15

to have been waived, although an additional written statement containing such plea was
file and accepted by the trial court.11

Order VIII Rule-9:- Subsequent pleadings:

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 of not more
than thirty days for presenting the same.

Additional Written Statement:-

Order VIII, Rule 9, C.P.C. lays down an important rule of pleading that no pleading
subsequent to the written statement by a defendant other than by way of defence to a set-
off shall be presented except by leave of the Court. The rule requires leave of the Court
before any party can make a further pleading after written statement has been filed. Where
a defendant intends the file additional written statement, he must file an application
showing the circumstances as to why he failed to raise the plea in the original written
statement, and the other party must be given opportunity to meet the motion.

Additional written statement in consistent with original written statement:-

In view of Order VIII, Rule 9, C.P.C. subsequent to filing of original written statement,
with the leave of the Court, a defendant can file additional written statement. But no leave
can be granted when it is inconsistent with original pleading. To do so resort may be had
to Order VI, Rule 17, and C.P.C.

Order VIII Rule-10:-Procedure when party fails to present written statement called
for by Court:-

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

11
Ross & Co. v. Scriven (1916) 43 Cal 1001.
 P a g e | 16

Court shall pronounce judgment against him, or make such order relating to the suit as it
thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

In Modula India v. Kamakshya Singh12, explaining the ambit and scheme of Rules 1, 5
and 10 of Order 8, the Apex Court observed: "Rule 1 merely requires that the defendant
should present a written statement of his defence within the time permitted by the Court.

Under Rule 5(2), where the defendant has not tiled a pleading it shall be lawful for the
Court to pronounce judgment on the basis of the facts contained in the plaint except against
a person under disability but the court may at its discretion require any such fact to be
proved. Again under Rule 10 when any party from whom a written statement is required
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`.

It will be seen that these rules are only permissive in nature. They enable the Court in an
appropriate case to pronounce a decree straightway on the basis of the plaint and the
averments contained therein. Though the present language of Rule 10 says that the Court
‘shall’ pronounce judgment against him, it is obvious from the language of the rule that
there is still an option with the Court either to pronounce judgment on the basis of the plaint
against the defendant or to make such other appropriate order as the Court may think fit.
Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass
a decree in favour of the plaintiff straightway because a written statement has not been
filed.”

Cause of action:
Cause of action as understood in the civil proceedings means every fact which, if traversed,
it would be necessary for the plaintiff to prove in order to support his right to a judgment
of the Court. To put it in a different way, it is bundle of facts which taken with law
applicable to them, gives the plaintiffs a right to relief against the defendant.

12
(1988) 4 SCC 619.
 P a g e | 17

II. SET-OFF (RULE -6)

Order VIII Rule-6.:-Particulars of set-off to be given in written statement:-

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, presents a written
statement containing the particulars of the debt sought to be set-off.

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 both of the original
claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any
pleader in respect of the costs payable to him under the decree. The rules relating to a
written statement by a defendant apply to a written statement in answer to a claim of set-
off.

Meaning-
In law, a set-off is a statutory defense to the whole or to a portion of a plaintiff's claim. Set-
off in the written statement is a claim added by the defendant against the plaintiff to defend
himself. Set-off is a cross-claim between plaintiff and defendant in which the plaintiff is
legally liable to pay that money to the defendant.

Essentials of set-off:

i. The suit filed by the plaintiff must be related to the recovery of money.
ii. The defendant’s claim for set-off must be for a specific amount of money.
iii. Money claimed by the defendant in the written statement must be legally
recoverable. For example, the defendant cannot claim any money which he won
in a bet with the plaintiff.
iv. The amount claimed by the defendant must not exceed the pecuniary limit of the
court. It simply means every court has its own limit that the court can only deal
 P a g e | 18

with the cases where a certain amount of money is in the issue. The defendant
cannot claim his set-off which is beyond the pecuniary jurisdiction of the
court. For example, a court has the pecuniary jurisdiction of 1 lakh, but the
defendant claims a set-off which is the amount of 5 lakh, in that case, the
pecuniary jurisdiction is exceeding. The defendant cannot claim that set off in
that case.
v. Both the defendant and plaintiff must fill the same character as they fill in the
plaintiff’s claim. It means, the defendant cannot claim a set-off in which the
plaintiff was not the main party. The defendant cannot claim money that is
recoverable from a person who is in the plaintiff’s relation.

Purpose of set-off in a written statement:-

a. To prevent the institution of a fresh suit in the court.

b. It prevents multiple lawsuits between plaintiff and defendant.
c. It prevents the valuable time of the court.
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.Where in
a suit for recovery of money by the plaintiff, the defendant finds that he has also a claim of
some amount against the plaintiff, he can claim a set-off in respect of the said amount. The
doctrine of set-off may be defined as "the extinction of debts of which two persons are
reciprocally debtors to one another by the credits of which they are reciprocally creditors
to one another".

Types of Set-off:-
1. Legal Set-off:- It can be explained with the help of following illustrations-
a. A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure
B's goods and is liable to him in compensation which he claims to set-off. The
amount not being ascertained cannot be set-off.
b. A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs.
 P a g e | 19

1,000. The two claims being both definite, pecuniary demands may be set-off.
c. A and B sue C for Rs. 1,000 C cannot set-off a debt due to him by A alone.
d. A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A
sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt
of Rs. 1,000.

The set-off mentioned above is a legal set-off. It is apparent from a reading of the above
provisions that in order to constitute legal set-off the following conditions must be fulfilled,
viz.

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 is 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. It is only in a written statement that a plea of set-
off can be raised. The rule further confines only to set-off and does not provide for a
counter-claim, which is allowed by way of equitable set-off, and is not expressly provided
in rule 6-A of Order VIII by C.P.C. (Amendment) Act, 1976.

Explanation of some of the above-mentioned-

 P a g e | 20

The suit must be for recovery of money. This rule applies only the suit is for recovery of
money and has no application to as suit in ejectment against a tenant. Though it is based
on default of payment of rent. It is also held in Madho Saran’s case13, that a suit for
redemption is not a suit for money.

That ascertained sum must be legally recoverable from the plaintiff. The amount claimed
by way of set-off under this rule must be ‘legally’ recoverable. It follows from this that if
the defendant’s claim is barred by the law of limitation; it cannot be pleaded by the way of
set-off under this rule.14

The set-off should be within the pecuniary jurisdiction of the court. One of the riders of the
jurisdiction of the court before which a plea in the nature of set-off or counterclaim is
advanced, is that only such court can en terrain the plea as would have been empowered to
take its cognizance had it been made the subject—matter of a separate suit. The valuation
of a set-off for the purpose of jurisdiction must be taken as relating to the whole amount
pleaded as a set-off and without reference to any portion of the plaintiffs claim admitted
by the defendant.

A sues B in a Presidency Small Cause Court for Rs 1,000. B claims to set-off a sum of Rs
2,700, and claims judgment for Rs 1,700, after giving a credit for Rs 1,000 admitted by B
to be due to A. The Small Cause Court has no jurisdiction to try the claim as to set-off the
value of the amount claimed asset-off being above Rs 2,000. 15

When a defendant pleads set-off, he is put in the position of a plaintiff as regards the amount
claimed by him. There are two suits-one by the plaintiff against the defendant and the other
by the defendant against the plaintiff; and they are tried together. A separate suit number,
however, is not given to a set-off. Where the plaintiff does not appear and his suit is
dismissed for default, or he withdraws his suit, or he fails to substantiate his claim at the

13
AIR 1953 Patna 73.
14
Bharta v. Cheta Ram AIR 1934 All 427.
15
ManoharLal v. MadanLal AIR 1956 Punj 190.