Importance of a written statement in the civil suit.(Order 8 of CPC, Set-off, Counter Claim, limitation etc. with caselaws)

Witten statement in civil suit

(1) What is a written statement?

The written statement is part of a civil suit. It plays a very important role in the suit filed by the plaintiff against the defendant. A written statement is a reply file by the defendant of the plaintiff’s suit. It is called a reply to the defendant.

The particular definition of the written statement is not defined in the law of civil procedure code. The written statement’s underlying meaning is that a written statement is a reply to the plaintiff’s suit, which is filed by the defendant. The written statement is the primary defense of the defendant. It called the answer of the defendant. 

The defendant has two choices for filing a written statement in the Court. Either he can accept and admit the plaint, or he can contest the suit, which is presented by the plaintiff against him. In the way of challenging the plaint, he can denial of plaintiff’s suit and file details explanation with reason and fact which is alleged by the plaintiff against him in a suit and take appropriate legal defense by filing his written statement. A defendant can also claim against the plaintiff by making his case by way of setoff and counterclaim under order 8 rule 6 of CPC.

(2) Who can file a written statement?

The written statement can be file by the defendant or in the case of his authorized power of attorney holder.

In the case of if the defendant is minor, then after the prior permission of the Court, the natural guardian or parents of a minor can file a written statement on behalf of him.

In the case of an unsound mind party in the suit as a defendant, then after the prior permission of the Court a close friend or any relative of the defendant can file a written statement on behalf of him.

In the case of any authorized person can be a file on behalf of the company, society, or body.

(3) How to write a written statement?

A written statement is an essential part of the defendant’s side to make a particular legal defense alleged in the suit against him. 

It should be very carefully written and must include all the legal terms and facts in writing form. So draft of the written statement does not look like a formal denial or formal reply of the suit. As per the provisions of CPC order 8, some crucial essentials regarding the written statement are given below.

1. As per the order 8 rule 2, The defendant should explain in detail how the plaintiff’s claim is not legally valid.

2. If a new fact is shown within the written statement, it should be shown in detail.

3. As per Order 8 rule 3, it’s not enough for the defendant to denial of the plaintiff’s suit based on the general ground, but he must be specifically mentioned in his written statement that why very allegation of plain should not be accepted or admit by him. Hence he must be a specific denial of the plaint of the plaintiff.

4. As per order 8 rule 4, when a defendant denies a claim of fact in the lawsuit, not to make Evasive denial, he must not do so evasively but respond to the substance of the matter.

5. As per order 8 rule 5, if the defendant makes a written statement and does not dispute the allegations in the application, then it is tacitly considered that the fact which has not been contested is admissible.

(4) What kind of cases can be filed written statement?

A written statement can be filed in all kind of cases which are covered under the Civil Procedure Code. Likewise, civil suit, title suit, eviction suit, specific performance of a contract, injunction suit, recovery of money suit, in MACT cases, defamation suit, matrimonial disputes like restitution of conjugal right, divorce petition, maintenance cases, dissolution of a partnership, etc. 

(5) Whether a written statement can be amended?

As per the requirement to Order 6, Rule 17 of the CPC provides the trial of the Suit has not commenced. The Court can allow an amendment of the written statement at any stage of the proceedings.

But in this way defendant can not allow being allowed to change completely the case made in the written statement and substitute an entirely different and new case. And also be note that amendment could not be permitted at such a late stage.

Case laws:

In Baldev Singh and Ors vs. Manohar Singh and Anr, 2006 (6) SCC 498, The Supreme Court noted that, subject to Order 6, Rule 17 of the CPC, the petition should not be allowed to be amended if the trial begins. That, apart from that, the commencement of the trial, as provided for in Rule 6 of Rule 17 of the Code of Civil Procedure, must be understood in the limited sense, i.e. the final hearing of the case, the examination of witnesses and the filing of documents and the handling of arguments. As has been pointed out from now on, the parties have yet to file their documents; we do not find any reason to reject the request for amendment of the written statement provided for in Order 6 Rule 17 of the CPC, which confers extensive powers and unfettered discretion on the Court to allow the written statement to be amended at any stage of the proceedings.[1].

In the case of Modi Spinning and Weaving Mills Co. Ltd and another vs. Ladha Ram and Co, 1977 AIR SC 680, The Supreme Court held that the means of the amendment were intended by the defendants to introduce a completely different case and that, if such amendments were allowed, the other party would be adversely affected. The defendants can not be allowed to completely change the case in the written statement and to take the place of a completely different and new case.[2].

In the case of Raj Kumar Mohan Singh and others vs. Raj Kumar Pashupati Nath Saran Singh and others, AIR 1970 SUPREME COURT 42, The Supreme Court held that the case proceeded for 22 years, as the defendant appealed to the Supreme Court to amend a written statement making a new allegation – Held the amendment, at such a late point, could not be permitted.[3].

(6) When can an additional written statement be filed?

In the case of Jyotish Chandra Sen vs. Rukmini Ballav Sen and other, AIR 1959 CALCUTTA 35, The Calcutta High Court held that, pursuant to provision order 8 Rule 9, the Court’s leave may accept an additional written statement on such terms as the Court may deem appropriate. One of the requirements is that a certain amount will be paid within a fixed period, that is, an act allowed by the Statute, and when the Court sets a time limit for performing that act, Section 148 applies in terms.[4].

(7) Time limit to file written statement?

There is a prescribed time limit to file a written statement pursuant to Rule 1 of the provision order 8; the defendant must file a written statement of his defense within thirty days of being summoned upon his summons.

Provided that if the defendant fails to make a written statement within thirty days, on the same day as may be required by the Court on the basis of a written record, he shall be allowed to present it. It will be no later than 90 days from the day the summons is served. Unless after this time the defendant submits a written statement, the Court will refuse to consider the same.

(8) Set-off (Order VIII Rule 6 of CPC):

According to the provision of order VIII rule 6 of CPC, the defendant can claim a set-off. Where the plaintiff file lawsuit against a defendant for the recovery of money, and the defendant also found that he can also claim some money from the plaintiff, that situation he can claim his amount through set-off.

Here are some following essential conditions require to satisfy the defendant to file set off under the provision.

Essential conditions for the defendant to file a set off:

  • The suit which is filed by the plaintiff must be for the recovery of money.
  • It must be the amount of money that has been determined.
  • The amount must be legally recoverable.
  • If there is more than one, it must be recoverable by the defendant or by all the defendants.
  • The defendant must be recoverable from the plaintiff or from all the plaintiffs if there is more than one. Thus, if the defendant is sued by the agent, he can not set aside what is entitled to him from the principal, since the principal is not the plaintiff.
  • It shall not exceed the pecuniary limits of the jurisdiction of the court of the petition.
  • In the defendant’s claim to set-off, all parties must have the same character as the plaintiff’s lawsuit.

One thing we should know that if the plaintiff may not appear and his suit is dismissed or withdrawn, it may not affect the defendant’s petition for set-off, and the order can be passed in his favor if he is capable of supporting his allegation.

(9) Counter Claim (Order VIII Rule 6-A of CPC):

The code of civil procedure Order 8 Rule 6-A to 6-G shows the provisions regarding the counter-claim. In relation to the opportunity to plead a set-off according to Rule 6, the defendant can, by way of counterclaim against the plaintiff’s claim, set up any right or claim in respect of a civil lawsuit brought by the defendant against the plaintiff.

The counter-claim may be called a cross suit, which enables the court to pronounce the judgments from both sides, the original Suit, as well as counter-claim.

Where any defendant intends to rely on any basis that supports a right of counter-claim, he shall clearly state in his written statement that he does so by counter-claim. A written statement made in response to a counter-claim shall be enforced by the rules relating to a Written Statement by the defendant.

(10) written statement Judgements:

A written statement is the Defendant’s first opportunity to raise his point of view in the suit on the matter at issue. But if, for whatever reason or circumstances, the Defendant did not file a written statement, that would not indicate that he had admitted the fact pleaded by the plaintiff.

In the case of Jahuri Shah and Others vs. Dwarika Prasad Jhunjhunwala and Others, AIR 1967 SC 109, The Supreme Court had stated the O. VIII, to R. 5,- C. P C. P. Provides that, if any allegation of fact in the lawsuit is not specifically denied or actually inferred or claimed not to be accepted in the defendant’s pleading, it shall be held that the defendant may not know the truth pleaded by the plaintiff does not amount to a denial of the presence of that truth, not even to an inferred denial.[5].

In the case of Siai Sinha vs. Shivadhari Sinha, AIR 1972 PATNA 81, The Patna High Court held that the Defendant must participate in the hearing of the suit, even without filing a written statement. He may cross-examine the plaintiff and his witnesses in order to primarily rebut their pleadings. However, without a written statement, he can not be allowed to cross-examine the witnesses on substantive questions that he has not pleaded with, nor can he be allowed to adduce evidence on documenting that he has not asked by filing any written statement. It should also be made clear that if a defendant files a written statement that does not contradict the allegations of the lawsuit, then it is said that openly the truth is accepted that is not controversial. However, if he does not file a written statement, it can not be assumed that he accepted any of the plaintiff’s pleaded facts.[6].

In the case of Bhageran Rai & Others Vs. Bhagwan Singh & Others, AIR 1962 PATNA 319, The Patna High Court held that defendants who do not file a written statement are not debarred from providing evidence that goes through the allegations made in the lawsuit.[7].

The Supreme Court in Balraj Taneja & Anr. V. Sunil Madan & Anr, 1999 (8) SCC 396, Discussed the issue and held that where the defendant has not filed a written statement, the court must be vigilant when proceeding under 8 CPC rule 10. Before passing the judgment of the Defendant, it must ensure that even if the facts set out in the claim are considered to have been accepted, to proceed pursuant to Order 8 Rules 10, is a discretionary power of the Court.[8].

The Jammu and Kashmir High Court, AIR 1993 JAMMU AND KASHMIR 12, has taken almost a similar view in the case of Alson Motors Vs. Rajesh Kumar In any event, the failure to file a written statement does not amount to the admission of the plaintiff’s claim by the Defendant.[9].

In the case of C. N. Ramappa Gowda Vs. C. C. Chandregowda (Dead) By LRs, AIR 2012 SUPREME COURT 2528, The Supreme Court held that the effect of not filing a written statement and proceeding to try the suit was clearly to expedite the disposition of the suit and not to be criminal in so far as the Defendant had to be punished for not filing a written statement by mechanically prosecuting the lawsuit by passing an order. Before passing judgment, it must ensure that, even if the facts set out in the plaintiff are treated as having been admitted, the judgment and the decree could not possibly have been passed without proof of the facts set out in the plaintiff.[10].

In the case of Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited,2013 (4) SCC 396, The Supreme Court held that the failure to file a Written Statement or the fact of the defendant being set ex parte did not constitute an automatic order for punishment.[11].

Reference:

(1)  Baldev Singh and Ors vs. Manohar Singh and Anr, 2006 (6) SCC 498.

(2)  M/s.Modi Spinning and Weaving Mills Co. Ltdand another vs. Ladha Ram and Co, 1977 AIR SC 680.

(3)  Raj Kumar Mohan Singh and others vs. Raj Kumar Pashupati Nath Saran Singh and others, AIR 1970 SUPREME COURT 42.

(4) Jyotish Chandra Sen vs. Rukmini Ballav Sen and other, AIR 1959 CALCUTTA 35.

(5) Jahuri Shah and Others vs. Dwarika Prasad Jhunjhunwala and Others, AIR 1967 SC 109.

(6) Siai Sinha vs. Shivadhari Sinha, AIR 1972 PATNA 81.

(7) Bhageran Rai & Others Vs. Bhagwan Singh & Others, AIR 1962 PATNA 319.

(8) Balraj Taneja & Anr. V. Sunil Madan & Anr, 1999 (8) SCC 396.

(9) AIR 1993 JAMMU AND KASHMIR 12.

(10) C. N. Ramappa Gowda Vs. C. C. Chandregowda (Dead) By LRs, AIR 2012 SUPREME COURT 2528.

(11) Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited,2013 (4) SCC 396.

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