WRITTEN STATEMENT: ORDER 8
MEANING---
The expression "written statement" has not been defined in the Code. 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 favour or takes legal objections against the claim of the plaintiff.
WHO MAY FILE WRITTEN STATEMENT?
A written statement may be filed by the defendant or by his duly constituted agent. Where there are several defendants and a common written statement is filed by them, it must be signed by all of them. It is, however, sufficient if it is verified by one of them who is aware of the facts of the case and is in a position to file an affidavit. But a written statement filed by one defendant does not bind other defendants. [Jugeshar Tiwari v. Sheopuian Tiwary, AIR 1986 Pat 35:1986 BLJ 460.]
WHEN WRITTEN STATEMENT MAY BE FILED?
According to the Rule 1 of Order VIII, a defendant should present a written statement of his defence within thirty days from the service of summons on him. The said period, however, can be extended up to ninety days. [R. 1.]
RULE 1. WRITTEN STATEMENT —
The defendant shall, within 30 days from the date of service of summons on him, present a written statement of his defence.
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall 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 which shall not be later than ninety days from the date of service of summons.
Outer limit for filing written statement
Proviso to Rule 1 as inserted by the Amendment Act, 2002 prescribes outer limit of ninety days of filing written statement from the date of service of summons on the defendant.
KAILASH V. NANHKU , [(2005) 4 SCC 480: AIR 2005 SC 2441.]
In above case the Supreme Court held that the time-limit of ninety days prescribed by the proviso to Rule 1 of Order 8 for filing written statement by the defendant was directory and permissive and not mandatory and imperative. Before coming to above opinion, the court considered the provision of the Code as originally enacted, recommendations of the Law Commission, anxiety of Parliament to ensure speedy disposal of cases but without sacrificing fairness of trial and principles of natural justice inbuilt in all procedural laws.
SALEM ADVOCATE BAR ASSN. (II) V. UNION OF INDIA AIR 2005 SC 3353.
In the above leading case, harmoniously construing Rules 1, 9 and 10 of Order 8, the Supreme Court observed:
"In construing this provision, support can also be had from Order 8 Rule 10 which provides that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit.
On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit.
In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit.
In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order 8, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8 Rule 1.
There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to "make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order 8 Rule 1 providing for upper limit of 90 days to file written statement is directory.
Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases.While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule I."
PARTICULARS RULES 1-5 & 7-10
A written statement should be drafted carefully and artistically. All the general rules of pleadings apply to a written statement also. 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.
SPECIAL RULES OF DEFENCE
Over and above the general defences, Rules 2 to 5 and 7 to 10 deal with special points regarding filing of a written statement:
RULE 2. NEW FACTS MUST BE SPECIALLY PLEADED —
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 stand over.
The rule 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."
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. Udhav Singh v. Madhav Rao Scindia, supra.Surasaibalini Debt v. Phanindra Mohan, AIR 1965 SC 1364 at p. 1370: Shipping Corpn. of India Ltd. v. Nisar Export Corpn., (1981) 1 SCC 564:
Whether such a plea has been raised in the written statement or not is a matter of construction of the written statement.
Again, if the plea or ground of defence raises an issue arising out of admitted facts or is otherwise apparent from the plaint itself, no question of prejudice or surprise to the plaintiff arises.
This rule does not require the defendant to take such a plea nor debars him from setting it up at a later stage of the suit when it does not depend on evidence but raises a pure question of law, like a plea of limitation. Scott v. Brown Doering, McNab & Co., (1892) 2 QB 724 at p. 729: (1891- 1894) All ER Rep 654 (CA);Edler v. Auerbach, (1950) 1 KB 359 at p. 371: (1949) 2 All ER 692; Surasaibalini Debi v. Phanindra Mohan, supra, at p. 1370 (AIR).
Similarly, 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.
According to rule 3, the denial must be specific. It is not sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but he must deal specifically with each allegation of fact which he does not admit, except damages. [R. 3.]
RULE 3. DENIAL TO BE SPECIFIC —
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.
According to rule 4, the denial should not be vague or evasive. Where a defendant wants to deny any allegation of fact in the plaint, he must do so clearly, specifically and explicitly and not evasively or generally. 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. [R. 4]
RULE 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 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.
ILLUSTRATION
In an action against a lessee to set aside the lease, the plaintiff alleges in his plaint that the defendant offered to the manager of the plaintiff a bribe of Rs 5000 at the defendant's office on 15 January 1997; and the defendant in his written statement states that he did not offer to the plaintiff's manager a bribe of Rs 5000 at the defendant's office on 15 January 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 manager as alleged or at all.
RULE. 5. SPECIFIC DENIAL —
1. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
2. Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
3. In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
4. Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
BADAT & CO. V. EAST INDIA TRADING CO. [AIR 1964 SC 538: (1964) 4 SCR 19.]
In this case the combined effect of Rules 3, 4 and 5 has been considered by Subba Rao, J. (as he then was) 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.
ILLUSTARTION
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.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.
Again, when a compound allegation, consisting of several distinct facts, is made in the plaint, and it is intended to deny each of such facts, a single denial of the whole allegation should not be made. The defendant should break up the allegation into separate parts and deny each of them separately. For instance, if the plaintiff alleges that the defendant took possession of the plaintiff's house and the defendant wants to deny both the allegations of having taken possession of the house as well as the plaintiff's ownership of the house, he must do so expressly by saying:
(1) The defendant never took possession of the house.
(2) The said house is not of the plaintiff.
A single traverse, "the defendant denies that he took possession of the plaintiff's house", would not be specific since it may mean that the defendant only denies having taken possession of the house and not the ownership of the plaintiff.
MUNSHI DASS V. MAI SINGH, AIR 1977 SC 2002.
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.
Thus, 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. In the absence of particulars in the plaint, all that the defendant could do would be simply to deny that there had been discrimination.
SHIPPING CORPN. OF INDIA LTD. V. NISAR EXPORT CORPN., (1981) 1 SCC 564 at p. 566:
Express or numerical denial of a particular para of the plaint is only a matter of form and not of substance, and the written statement must be read as a whole and it would be sufficient if the allegations made in the plaint have been specifically denied even if denial of a particular para of the plaint is omitted in the defence.
Where the defendant relies upon several distinct grounds of defence or set-off or counterclaim founded upon separate and distinct facts, they should be stated separately and distinctly. [R. 7.]
7. DEFENCE OR SET - OFF FOUNDED 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.
Any new ground of defence which has arisen after the institution of the suit or presentation of a written statement claiming a set off or counterclaim may be raised by the defendant or plaintiff, as the case may be, in his written statement. [R. 8.] Here the court is empowered to take notice of subsequent events.
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.
No pleading after the written statement of the defendant other than by way of defence to a set-off or counterclaim can be filed. The court may, however, allow any party to file his pleading upon such terms as it thinks fit. [R. 9.]
RULE 9. SUBSEQUENT PLEADINGS —
No pleading subsequent to the written statement of a defendant other than by way of defence to a 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.
If the defendant fails to present his written statement within the time permitted or fixed by the court, the court will pronounce the judgment against him or pass such order in relation to the suit as it thinks fit and a decree will be drawn up according to the said judgment. [R. 10]
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 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.
BALRAJ TANEJA V. SURAL MADAN; BADAT & CO. V. EAST INDIA TRADING CO.,
The court, however, cannot proceed to pass a judgment blindly merely because no written statement is filed by the defendant traversing the averment made by the plaintiff in his plaint.
MODULA INDIA V, KAMAKSHYA SINGH, [(1988) 4 SCC 619: AIR 1989 SC 162.]
In this case Hon’ble Supreme Court explained the ambit and scheme of Rules 1, 5 and 10 of Order 8 and 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 filed 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.
BALRAJ TANEJA V. SUNIL MADAN [(1999) 8 SCC 396: AIR 1999 SC 3381.]
The following observations of the Supreme Court in Balraj Taneja v. Sunil Madan [(1999) 8 SCC 396: AIR 1999 SC 3381.] lay down correct law on the point. Considering the relevant provisions of Orders 8 and 20 and referring to leading decisions on the point, the Court stated:
"[The court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court.
In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC.
Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint.
It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which needs to be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement.
But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy.
Such a case would be covered by the expression 'the court may, in its discretion, require any such fact to be proved' used in sub-rule (2) of Rule 5 of Order 8, or the expression 'may make such order in relation to the suit as it thinks fit' used in Rule 10 of Order S.
DOCUMENTS RELIED ON IN WRITTEN STATEMENT: RULE 1A
Like a plaintiff, a defendant is also bound to produce all the documents in support of his defence, or claim for set-off or counterclaim which are in his possession.
If the defendant fails to produce them, they will not be received in evidence except with the leave of the court. This provision, however, does not apply to the following documents;
1. documents reserved for cross-examination of the plaintiff's witnesses; or
2. documents handed over to a witness merely to refresh his memory. [R. 1-A.]
1A. DUTY OF DEFENDANT TO PRODUCE DOCUMENTS UPON WHICH RELIEF IS CLAIMED OR RELIED UPON BY HIM.—
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 plaintiff's witnesses or
b. handed over to a witness merely to refresh his memory.
