CIVIL PROCEDURE CODE: WRITTEN STATEMENT, SET-OFF & COUNTER CLAIM

CIVIL PROCEDURE CODE: WRITTEN STATEMENT, SET-OFF & COUNTER CLAIM

CIVIL PROCEDURE CODE: WRITTEN STATEMENT, SET-OFF AND COUNTER CLAIM

 

WRITTEN STATEMENT (Rule 1-5 & 7-10)

 

Introduction –

In legal dictionary, the word written statement means a pleading for defence. However, the expression ‘written statement’ has not been defined in the code and it is a term of specific connotation ordinarily signifying a reply to the plaint which is 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 along with any new facts in his favour or that takes legal objections against the claim of the plaintiff.

 

R.1. – Written statement.

A defendant should, within 30 days from the service of summons on him, present a written statement of his defence the period id extendable 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 it is absolutely necessary to examine the plaint carefully. Like a plaintiff, a defendant may also take a number of defences, either simply or in the alternative, even though they may be inconsistent, provided they are maintainable at law and are not embarrassing.

 

R-1A provides for  Duty of defendant to produce documents upon which relief is claimed or relied upon by him

 

R.2. New facts must be specially pleaded.

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 relyon it; or it may give leave to amend by raising it and protect the other party.

 

R.3. Denial to be specific.

The defendant must deny specifically with each allegation of fact of which he does not admit the truth.

 

R.4. Evasive denial.

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 the allegation 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 else set out how much he received.

 

R.5. Specific denial.

Rule 3 of Order VIII requires that the defendant must deal specifically with each allegation effect 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.

 

Badat& Co. v. East India Trading Co.

The combined effect of Rules 3, 4 and 5 has been considered by Subba Rao ,J. (as he then was) in the case of Badat& Co. v. East India Trading Co.  said that 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.”

 

R.7. Defence or set-off founder upon separate grounds

Where the defendant relies upon several distinct grounds of defence or set-off 1[or counter-claim] founded separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.

 

R.8. New ground of defence

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

 

R.9. Subsequent pleadings.

Order VII, 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.

 

R.10. Procedure when party fails to present written statement called for by Court.

In Modula India v. Kamakshya Singh, 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`.

 

  1. SET OFF

 Definition:

Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a claim of some amount against the plaintiff what he do is  he can claim a set-off in respect of the said amount. This right of the defendant to claim set off has been recognized under Order 8, Rule 6 of the Code.

 

 Essential Conditions:

A defendant may claim a set-off, if:

  • The suit is for the Recovery of money;
  • The sum of money must be ascertained;
  • Such sum must be legally recoverable;
  • It must be recoverable by the defendant or by all the defendants, if not more than one;
  • It must be recoverable by the defendant from the plaintiff(s);
  • It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
  • Both the parties must fill in the defendant’s claim to set-off, the same character as they fill in the plaintiff’s

Effects:

When a defendant claims set-off, he is put in the position of the plaintiff as regards the amount claimed by him. Where the plaintiff doesn’t appear and his suit is dismissed or he withdraws, it does not affect the claim for a set-off by the defendant and a decree may be passed in his favor if he is able to prove his claim.

Illustrations:

  • X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to insure Y’s goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.
  • P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs. 1,000. The two claims being both definite, it may be set-off.

 

III. COUNTER CLAIM

 Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a suit against the plaintiff. It is a claim independent of and separable from plaintiff’s claim which can be enforced by a cross section. Counter-claim can be set up in respect of action accruing to the defendant either before or after the filing of the suit but before the defendant has delivered his defense or before the time fixed for delivery of his defense has expired.

Such claim should not exceed the pecuniary limits of the jurisdiction of the concerned court. The counter-claim is to be treated as a plaint and the plaintiff can file a written statement in answer to it.

Counter-claim can be filed after filing of written statement.

 

In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a counter claim is referable to the date of accrual of cause of action. If the cause of and such action had arisen before or after filing of the suit, cause of action continued up to the date of filing of the suit and such cause of action continued up to the date of filing written statement or extended date of filing plaintiff statement, then such counter claim can be filed even after filing the written statement.

 

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