CIVIL PROCEDURE CODE

W R I T T E N S TAT E M E N T
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 WRITTEN STATEMENT

Order VIII deals with rules relating to written statement. The term written statement has
not been defined in the Code.
Written Statement means the pleadings of the defendant wherein defendant deals with the
facts alleged in the plaint.
The defendant can plead new facts and set up counter claim and set-off.
All the general rules of pleading mentioned in Order VI apply to written statement.
May be filed by the defendant or his duly authorized agent.
A common written statement can be filed for several defendants. In such case it must be
signed by all of them. As far as verification is concerned, it can be verified by any one
defendant.
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 TIME LIMIT FOR FILING WRITTEN STATEMENT

 Order VIII Rule 1

 30 days
 Can be extended upto 90 days
 Can the time be extended beyond 90 days?
 Kailash v. Nankhu
 SC held that outer time limit of 90 days for filing the written statement is not mandatory. The court held that
though the provision is couched in a negative language, it is directory and permissive not mandatory or
imperative. It provides that process of justice may be hurried but the fairness which is the basic element of justice
cannot be permitted to be buried.
 Salem Advocate Bar Association v. Union of India
 SC harmoniously constringed Order VIII Rule 9, 10 & 11 said that there can be discretion of the court to allow
the defendant to file written statement even after expiry of 90 days and there is no restriction in Order VIII that
after expiry of 90 days, further time cannot be extended or granted. In this case, the Supreme Court held that
court is empowered under Order VIII Rule 10 to allow the defendant to file the written statement even after the
expiry of 90 days. Such power can only be used in exceptional circumstances and routine order cannot be passed.
 TIME LIMIT FOR FILING WRITTEN STATEMENT

2nd Proviso to Order VIII Rule 1

120 days in the case of commercial disputes
The Commercial Courts, Commercial Division and Commercial Appellate Division of
High Courts Act, 2015
SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd
 Proviso added by the Commercial Courts Act, 2015 is mandatory and no written statement can be taken
on record in commercial suits, if it is not filed within 120 days from the date of service of summons.
 Clear, definite and mandatory provisions of Order V Rule 1 r/w Order VIII Rule 1 and 10 cannot be
circumvented by recourse to inherent power under Section 151
 FAILURE TO FILE WRITTEN STATEMENT

Rule 10
Where the party fails to file written statement within the period fixed by the court under
Rule 1 and Rule 9, the court shall pronounce judgement against him or make such order
as it thinks fit and a decree shall be drawn accordingly.
Salem Advocate Bar Association v. Union of India
 The provisions of rule 10 are discretionary and not mandatory.
 WRITTEN STATEMENT

Rule 1A: Production of documents upon which relief is claimed or relied upon by
defendant
 List of documents
 Original for verification
 Copy of documents along with plaint
 Documents not in possession of plaintiff – information about the possession
 Leave of the court required for using a document not in list
 This rule shall apply to document produced for cross-examination or used merely to refresh the memory
of a witness
Rule 2: New facts must be specifically pleaded
 a) All matters which show that the suit is not maintainable, or
 b) The transaction is either void or voidable in point of law, or
 c) The facts showing illegality and other grounds of defence.
 PARTICULARS IN WRITTEN STATEMENT

Rules 1 to 5 & 7 to 10
All rules under O-VI will apply
 DENIAL AND DEEMED ADMISSIONS

Rule 3 to 5 of Order VIII deals with rule governing denial by the defendants
Rule 3: Denial to be specific
Rule 4: Evasive denial
Rule 5: Specific denial
 Allegation of facts in plaint must
 1) Be denied specifically,
 2) By necessary implication, or
 3) Stated to be not admitted.
 Every allegation of fact in the plaint, not denied by the defendant shall be taken to be admitted by the
defendant
 Section 31 of Indian Evidence Act, 1872 says that Admission not conclusive proof, but may estop
Badat & Co. v. East India Trading Co.
 BALRAJ TANEJA V. SUNIL MADAN

 Case relating to validity of admissions and situation where WS is not filed

 The Supreme Court held that courts should act cautiously on the admission made in written
statement.
 The courts should not proceed to pass judgement merely because written statement has not been
filed.
 Courts should see that even if the facts set out in the plaint are admitted a judgement could possibly
be passed in favour of plaintiff without requiring him to prove any fact mentioned in the plaint.
 If the court is satisfied that no fact need to be proved on account of deemed admission the court can
pass judgement where the written statement has not been filed.
 If the plaint contains certain disputed questions of facts which depicts two different versions the
court should require the plaintiff to prove the case.
 Such a situation would be covered under ‘court may in its discretion require any such fact to be
proved’ used in Order VIII Rule 5(2) or ‘make such order in relation to suit as it thinks fit’ used in
Order VIII Rule 10.
 RULE OF SET-OFF

 Order VIII Rule 6 of the Code

 The term set-off is not defined in the Code.
 It is a cross claim where by a defendants, acknowledges the plaintiff’s demand but set up against
another demand of his own to counter balance that of the plaintiff either in whole or in part.
 Thus, it is a reciprocal discharge of debts between two persons.
 When there are two mutual debts between the plaintiff and defendant, one debt may be settled
against the other.
 It avoids the necessity of filing a fresh suit by the defendants.
 For example, A sues B on a bill of exchange for Rs. 1000. B holds a judgement against A for Rs.
500. Both the claims can be set-off and A will be entitled to Rs. 500 only.
 In Jayanti Lal v. Abdul Aziz , the Supreme Court defined set-off 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.
 RULE OF SET-OFF

 Two kinds of set-off:

Legal Set-off
 Order VIII Rule 6
 This claim of set-off is based on written statement and the court pronouncing the judgement in money
suit will also pronounce judgement on set-off.
Equitable set-off
 Order XX Rule 19(3)
 In contrast to legal set-off, equitable set-off may not be for ascertained money and may not be even
recoverable.
 ESSENTIAL REQUIREMENTS OF LEGAL SET-OFF

It is a suit for recovery of money.

Claim of defendant must be for ascertained sum of money i.e. specific and certain.
Such sum should be legally recoverable
It must be recoverable by the defendant or by all the defendants if more than one.
It must be recoverable from the plaintiff or all the plaintiffs if more than one.
Such sum should not exceed pecuniary limits of the jurisdiction of the court.
Both parties must be in same character in set-off as well as in the suits.
 A dies intestate and in debt to B. C takes out administration to A's effects and B buys part of the effects
from C. In a suit for the purchase-money by C against B, the latter cannot set-off the debt against the
price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as
representative to A.
LEGAL SET-OFF & EQUITABLE SET-OFF
 EFFECTS OF SET-OFF

When a defendant pleads set-off, he is put in position of plaintiff as regards the amount
claimed by him
Have the effect of two cross suits which are tried together and the court pronounces
judgement in respect of both of them.
No separate suit number
The failure of plaintiff in the suit does not affect the claim of a set-off by the defendant
and decree may be passed in favour of defendant if he is able to prove his claim
Set-off claim has the same effect as of the plaint in a cross-suit to enable the court to
pronounce the judgement in both suits and the rule regarding the written statement shall
apply to a written statement filed by plaintiff in answer to claim of defendant.
 COUNTER CLAIM
ORDER VIII RULE 6A TO 6G

Rules 6A-6G of Order VIII vide Amendment Act of 1976, which specifically provides
for setting of counter claim
The code does not define counter-claim.
It can be defined as a claim made by the defendant against the plaintiff in the suit filed by
plaintiff.
It is a cause of action in favour of defendants against the plaintiff.
It is independent and separate from plaintiff’s claim.
The defendant may in addition to set-off, can also be plead by way of a counter-claim.
Not just an ascertained sum but any other right that the defendant is entitled to claim
against the plaintiff.
 COUNTER CLAIM
ORDER VIII RULE 6A TO 6G
 Such right or claim must accrue either before or after the filing of the suit but before filing of
written statement or expiry of time limited to file written statement.
 The counter-claim must not exceed the pecuniary jurisdiction of the court. [Order VIII Rule 6A.
(1) Proviso]
 The counter- claim shall have the same effect as a cross-suit to enable the court to pronounce the
judgement in both suits [Rule 6A (2)].
 The plaintiff shall file the written statement to answer the claim in counter-claim against him
[Rule 6A (3)].
 The counter-claim is in the nature of cross-suit so it should satisfy all the criteria of a suit and
rules as to the plaint that he shall apply mutatis mutandis to it.
 The counter claim is treated as separate suit so it is deemed to be instituted on the day on which it
was filed and not on the day when original suit was filed, so it must be filed within limitation
period.
 Court-fee is payable on counter-claim.
 COUNTER CLAIM

The object of remedies is to ensure trial of all issues between the parties at one time as
far as possible. In this way, it is one of which to minimize the multiplicity of suits
Claim of set-off is never barred by limitation, counter-claim may be barred.
Ramesh Chand v. Anil Panjwani, Supreme Court held if defendant is filing counter
claim against the plaintiff he can also file counter claim against co-defendants but
defendant cannot file counter claim solely against co-defendants without filing it against
the plaintiff
 EFFECTS OF COUNTER-CLAIM

A counter claim has the effect of a cross-suit and the court can pronounce a final
judgement both on the original claim and the counter claim [Rule 6A (2)].
The counter claim of the defendant will be treated as plaint and the plaintiff has a right to
file a written statement in answer to such counter-claim [Rule 6A(3) & (4)].
Even if the suit of plaintiff is stayed, dismissed or withdrawn, the counter-claim will be
decided on merits [Rule 6D].
Rules relating to written statements by a defendant shall apply to a written statement
filed in answer to the counter-claim [Rule 6G].
 OTHER RULES

Counter claim to be stated: [Rule 6B]- The defendant shall state, specifically in written
statement, any ground upon which he relies in support of his counter-claim.
Exclusion of counter claim: [Rule 6C]- This rule gives the plaintiff a right to apply to
the court to restrain the adjudication of the counter-claim in his suit and that it must be
raised in an independent suit.
Effect of discontinuance of suit: [Rule 6D]- The stay or dismissal of the plaintiff’s suit
does not affect the maintainability of counter claim. The counter claim shall be
proceeded with and since it is a cross suit it will be decided on its own merits.
Default of plaintiff to reply to counter-claim: [Rule 6E]- Where the Plaintiff fails to
reply to a counter-claim made by defendant, a judgement may be pronounced against
such plaintiff in relation to the counter-claim or any other order also be made.
 OTHER RULES

Relief to defendant where counter-claim succeeds: [Rule 6F]- Where the counter-
claim or set-off is claimed in any suit and on the hearing it is found that any balance is
due to the plaintiff or the defendant, the court may give judgement in the favour of the
party entitled to such balance.
Rules relating to written statement to apply: [Rule 6G]- The rules relating to written
statement by a defendant shall apply to a written statement filed in answer to a counter-
claim.
Defence or set-off founded upon separate grounds: [Rule 7]- The distinct grounds of
defence or set-off or counter-claim must be stated separately or distinctly.
New ground of defence: [Rule 8]- Any new ground arose after the institution of the suit
or the presentation of set-off or counter claim in a written statement, may be raised
subsequently by the parties concerned.
 SUBSEQUENT PLEADING: [RULE 9]

The general rule is that after pleading there is no subsequent pleading

But Order VIII Rule 9 says that any submission by the parties to the court, by way of or
in the nature of a pleading after plaint and written statement will be called as a
subsequent pleading.
It is presented as follows:
 (i) By way of set-off or counter-claim, only with the leave of the court, or
 (ii) By way of an additional written statement.
However, the court has the power to allow a written statement or additional written
statement any time from any of the parties and the time period fixed for it is 30 days.
 DIFFERENCE BETWEEN SET-OFF & COUNTER-CLAIM

Set-off Counter-claim
It is substantially a cross action.
It is a statutory defence to a plaintiff’s action.

It must be for an ascertained sum of money or, if A counter-claim need not be for ascertained sum of
equitable set-off, arise out of same transaction. money neither it should arise out of same transaction.
It is a ground of defence to be plaintiff’s action, a
It is a weapon of offence, a sword enabling a
shield which would afford an answer to plaintiff’s
defendant to enforce a claim against the plaintiff
claim in whole or in part.
The amount must be recoverable at the date of the
In legal set-off the amount must be recoverable at the
written statement or the cause of action must have
date of the suit.
arose before the filing of written statement.