Module 3

How to draft Written Statement.

Introduction

In legal dictionary, the word Written statement means a pleading for defense. A 'defense'
called the written statement, in general this is a reply of plaint, in which defendant denies or
admits the each and every allegation or facts given in the plaint. Denial or admission must be
Para wise and clear. In the written statement defendant can put his case also under the heading
additional plea, and can states new facts or ground which is necessary to defeat the opponent. If
defendant want to put his own claim against the plaintiff he can put it by way of set- off
and counterclaim u/o 8 Rule 6 and 6A of C.P.C.

NOTE:-
The facts, which remain unanswered by the defendant, it will be presumed that the
defendant admitted the said fact. In general, the fact, which is taken to be admitted, need
not be proved. Pleading must be unambiguous clear and correct. Carelessly prepared
pleading can spoil the suit.
"if a plea which was relevant for the purpose of maintaining a suit had not been specifically
traversed, the Court was entitled to draw an inference that the same had been admitted. A
fact admitted in terms of Section 58 of the Evidence Act need not be proved." (v) (2010) 10
Supreme Court Cases 512 (MAN KAUR v. HARTAR SINGH SANGHA):-

Drafting of Written Statement:

Order VIII provides for the filing of a written- statement, the particulars to be contained therein
and the manner of doing so. It requires what a written statement should contain. Before drafting
the written statement, it is the duty of the defendant to study the plaint thoroughly and all the
documents submitted by the plaintiff with the plaint in support of his claim. After the thorough
study of the plaint and supported documents a para wise answer of the plaint can be prepared.

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

Order VIII of the Code of Civil Procedure deals with the written statement set off and
counterclaim.

Time for Filing of Written Statement (Order VIII Rule 1):

The text of Order VIII, Rule 1, as it stands now, reads as under:

"l. Written Statement.- The defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defense :
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".

Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1
has been drafted, shows that it casts an obligation on the defendant to file the written statement
within 30 days from the date of service of summons on him and within the extended time falling
within 90 days. The provision does not deal with the power of the Court and also does not
specifically take away the power of the Court to take the written statement on record though filed
beyond the time as provided for.Secondly, the nature of the provision contained in Order VIII,
Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind
substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous
defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the
plaintiffs and petitioners approaching the Court for quick relief and also to the serious
inconvenience of the Court faced with frequent prayers for adjournments. The object is to
expedite the hearing and not to scuttle the same.The process of justice may be speeded up and
hurried but the fairness, which is a basic element of justice,cannot be permitted to be buried.

Time for filing written statement is fix for 30 days from the date of service of summons on him
and maximum time limit from the date of service of summons is ninety days. Order, 8 Rule 1

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

Provision of Order 8,Rule 1.are directory in nature even after expiry of stipulated period
court can extend time to file written statement. (AIR 2002 SC 2487, RameshwarLal v. Daya
Nand AIR 2005.)

Duty of defendant to produce document upon which relief is claimed or relied upon by him
(Order VIII Rule 1A.):

"(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 counterclaim, he shall enter
such document in a list, and shall produce it in Court when the written statement is presented by
him and shall, atthe 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 the plaintiff s witnesses, or
(b) handed over to a witness merely to refresh his memory."

NOTE:
Order VII Rule 14 of the Civil Procedure Code (CPC) deals with the documents of the
Plaintiff and Order VIII Rule 1-A of the CPC with regard to the documents of the
Defendant. Besides this, Order XIII deals inter alia with the production of documents. This
relates to production by both the parties, the Plaintiff and the Defendant. Under Order
XIII Rule 1 of the CPC, the original documents are required to be produced by the parties
and received by the Court.

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

New Facts Must be Specially Pleaded (Order VIII Rule 2.):

Order VIII,Rule 2 requires that the defendant must raise by his pleading all matters which show
the suit not to 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.

Denial to be Specific(Order VIII Rule 3.):-

Order VIII Rule 3 requires that 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.

"if a plea which was relevant for the purpose of maintaining a suit had not been specifically
traversed, the Court was entitled to draw an inference that the same had been admitted. A fact
admitted in terms of Section 58 of the Evidence Act need not be proved." (v) (2010) 10
Supreme Court Cases 512 (MAN KAUR v. HARTAR SINGH SANGHA):-

Evasive denial(Order VIII Rule 4.):-

Rule 4 of Order VIII of C.P.C. says that where a defendant denies an allegation of fact in a
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.
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

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

the denial of a fact is not specific but evasive, then the said fact is to be taken to have been
admitted. In such an event, the admission itself being proved, no other proof is necessary and the
law in that regard is well settled since the decision of the Apex Court in the matter of Badat and
Co. v. Eastern India Trading Co., .

Specific Denial(Order VIII Rule 5.):-

[(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 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.]"

Note: It is settled law that denial for want of knowledge is no denial at all. The provisions
contained in Order 8 Rule 5 require pleadings to be answered specifically in written
statement. 2016 (3)UAD 30 SC Muddasanivenkatanarsaiah (D) through LRS versus
Muddasanisarojana.

Note: Procedure Where Written Statement by the Defendant is not filed.

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

"Order VIII provides the procedure where written statement by the defendant is not filed. Order
VIII Rule 5(2)(4) provides that where the defendant has not filed a pleading, it shall be lawful
for the court to pronounce judgment on the basis of facts contained in the plaint and after
pronouncing the judgment a decree is required to be drawn up in accordance with such
judgment. Under Order VIII Rule 10 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 order in relation to the
suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. This
rule gives a discretion to the Court either to pronounce the judgment against the defendant or
make such order in relation to the suit as it thinks fit."
While interpreting Order VIII, this Court in BalrajTaneja& Another v. Sunil Madan&
Another [(1999) 8 SCC 396] held that merely because written statement is not filed the Court
should not proceed to pass judgment blindly and observed thus:-
"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, especially where the defendant has not filed a written
statement, 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
courts satisfaction and, therefore, only on being satisfied that there is no fact which need be
proved on account of deemed admission, the court can conveniently pass a judgment against the
defendant who has not filed the written statement."

Supreme Court of India

Union Of India And Others vs Manager M/S Jain And Associates on 6 February, 2001

In Badat and Co., v. East India Trading Co.,(1) hon'ble Court observed regarding the
requirements of the written statement under Order VIII, Rules 3, 4 and 5, as follows

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

" These three rules from an integrated 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."

Supreme Court of India

Badat And Co vs East India Trading Co on 10 May, 1963

Equivalent citations: 1964 AIR 538, 1964 SCR (4) 19

Particular of Set-of to be given in Written Statement (Order VIII Rule 6 CPC)

A reading of Rule 6 of Order VIII CPC would show that following conditions have to be
satisfied before a defendant is entitled to set-off under that Rule:-
"A defendant may claim a set-off under this rule if the following conditions are satisfied, but not
otherwise--

I. The suit must be one for the recovery of money.

II. As regards the amount claimed to be set-off--

(a) it must be an ascertained sum of money;

(b) such sum must be legally recoverable;

(c) it must be recoverable by the defendant or by all the defendants if more than one;

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

(d) it must be recoverable by the defendant from the plaintiff or all the plaintiffs if more than
one. Thus, where th defendant is sued by the agent, he cannot set-off what is due to him from the
principal as the principal is not the plaintiff;

(e) it must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is
brought; and

(f) both parties must fill, in the defendant's claim to set-off the same, character as they fill in the
plaintiff's suit."

NOTE:
"The right of set-off is a ground of defense and is required by Order VIII rule 6, of the Civil
Procedure Code to be pleaded as a part of the written statement of the defendant. If established it
is an answer to the plaintiff's claim wholly or pro tanto as the case might be. The defendant, if
entitled to a set-off, is not liable to make satisfaction of the claim made against him or so much
of it as equals the amount which he is entitled to set-off. It a set-off equal to the plaintiff's claim
is established it is an absolute defense entitling the defendant to a decree of dismissal of the suit.
The processual law provides that the written statement containing a set-off has the same effect as
a plaint in a cross suit so as to enable the court to pronounce a final judgment and a single decree
in respect of both the original claim and the set-off: See Order VIII, rule 6(2) and Order XX, rule
19, of the Civil Procedure Code. This, however, does not mean that a written statement
containing a plea of set-off is to be treated as a plaint in all respects and for all purposes."

16." Principles of equitable set-off is recognized in Rule 6 of Order VIII CPC. The essence of
such a claim is that there must be some connection between the plaintiff claim for a debt and the
defendant's claim to set-off, which will make it equitable to dry up the defendant to a separate
suit. In these cases where cross demands arise out of the same transaction or are so connected in
their nature and circumstances that can be looked upon as part of one transaction, equitable set-
off is permissible. This principle is made applicable even in those cases where the claim of the
defendant is for an unascertained sum like that of damages but arising out of same transaction."
Delhi High Court

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

Crb Capital Markets Ltd. vs Smt. Bimla Devi Sahney (Deceased ... on 31 May, 2005
Equivalent citations: IV (2005) BC 53, 2006 132 CompCas 788 Delhi

Counter-Claim by Defendant (Order VIII Rule 6-A):

(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up,
by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause
of action accruing to the defendant against the plaintiff either before or after the filing of the suit
but before the defendant has delivered his defence or before the time limited for delivering his
defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the
Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to
pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the
defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to the
plaints.

NOTE:-
In the case of Ramesh Chand Ardawatiya (supra), "28. Looking to the scheme of Order
VIII as amended by Act No. 104 of 1976, honorable Apex Court held, " we are of the
opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit.
Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which
in the light of Rule 9 read with Rule 6A would be a counter-claim against the claim of the
plaintiff preferred in exercise of legal right conferred by Rule 6A. Secondly, a counter-
claim may be preferred by way of amendment incorporated subject to the leave of the

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

Court in a written statement already filed. Thirdly, a counterclaim may be filed by way of a
subsequent pleading under Rule 9. in the latter two cases, the counter-claim though
referable to Rule 6A cannot be brought on record as of right but shall be governed by the
discretion vesting in the Court, either under Order VI, Rule 17 of the C.P.C. if sought to be
introduced by way of amendment, or, subject to exercise of discretion conferred on the
Court under Order VIII, Rule 9 of the C.P.C. if sought to be placed on record by way of
subsequent pleading.

Hon'ble Madras High Court in a case of

Southern Ancillaries Private ... vs Southern Alloy Foundries ... on 28 March, 2003
Equivalent citations: AIR 2003 Mad 416, (2003) 2 MLJ 56 held in para 25.
25." We sum up the legal position as under:-

i] The defendant can make a counter claim even after filing the written statement but that
should be before the commencement of recording of evidence.

ii] Generally an amendment once allowed will relate back to the date of filing of the
plaint/written statement.

iii] Court may make it clear while allowing such amendment that it will not relate back to
the date of filing of the plaint/written statement.

iv] Even if in the order allowing amendment it is not stated that the order would not relate
back, it will be open to the aggrieved party to contend that the
order (allowing amendment) would not relate back at the time of the trial of the suit.

v] If after allowing the amendment, the concerned party does not take care to amend the
plaint/written statement within the period allowed or within 14 days where no period is
fixed, or within the extended period, the plaintiff or defendant, as the case may be, shall not
be permitted to amend after the expiration of the period and the Court has to only consider
the unamended plaint or written statement."

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

6B. Counter claim to be stated

(Order VIII Rule 6-B):

Where any defendant seeks to rely upon any ground as supporting a right of counter claim, he
shall, in his written statement, state specifically that he does so by way of counter claim

6C. Exclusion of counter claim (Order VIII Rule 6-C):

Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised
ought not to be disposed of by way of counter claim but in an independent suit, the plaintiff may,
at any time before issues are settled in relation to the counter claim, apply to the court for an
Order that such counter claim may be excluded, and the court may, on the hearing of such
application make such Order as it thinks fit

6D. Effect of discontinuance of suit- (Order VIII Rule 6-D):

If in any case in which the defendant sets up a counter claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter claim may nevertheless be proceeded with

6E.Default of plaintiff to reply to counter claim (Order VIII Rule 6-E):

If the plaintiff makes default in putting in a reply to the counter claim made by the defendant, the
Court may pronounce judgment against the plaintiff in relation to the counter claim made against
him, or make such Order in relation to the counter claim as it thinks fit

6F. Relief to defendant where counter claim succeeds (Order VIII Rule 6-F):

Where in any suit a set off or counter Claim is established as a defence against the plaintiffs
claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the
court may give judgment to the party entitled to such balance

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

6G. Rules relating to written statement to apply (Order VIII Rule 6-G):

The rules relating to a written statement by a defendant shall apply to a written statement filed in
answer to a counter claim

7. Defence or set off founded on separate grounds- (Order VIII Rule 7):

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

HIGH COURT AMENDMENT

Karnataka- After Rule 7 and before Rule 8, add the following as Rule 7-A:

7-A, Where the defendant seeks the permission of the Court under Rule 8 of Order 1 of this
Code to defend the suit on behalf of or for the benefit of himself and other persons having the
same interest as the defendant in the subject-matter of the suit he shall file an application
supported by an affidavit setting out the particulars detailed in sub-rule (2) of Rule 4 of Order
VII of this Code Notice of such an application shall be given to all parties to the suit, and if the
permission sought is granted the plaint may be amended by inserting a statement that the
defendant is with the leave of the Court sued as the representative of at ::sons interested in
subject-matter of the suit (3031967)

8. New ground of defence(Order VIII Rule 8):

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

8A. Omitted by Act No. 46 of 1999 (w.e.f. 1-7-2002).

9. Subsequent pleadings(Order VIII Rule 9):

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

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

HIGH COURT AMENDMENT

Bombay, Dadra and Nagar Haveli- For Rule 9, substitute the following:
9 Subsequent pleading No pleading subsequent to the written statement of the 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

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

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 b, 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.

Note: Procedure Where Written Statement by the Defendant is not Filed. "Order VIII
provides the procedure where written statement by the defendant is not filed. Order VIII Rule
5(2)(4) provides that where the defendant has not filed a pleading, it shall be lawful for the court
to pronounce judgment on the basis of facts contained in the plaint and after pronouncing the
judgment a decree is required to be drawn up in accordance with such judgment. Under Order
VIII Rule 10 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 order in relation to the suit as it thinks fit and on
the pronouncement of such judgment a decree shall be drawn up. This rule gives a discretion to

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

the Court either to pronounce the judgment against the defendant or make such order in
relation to the suit as it thinks fit."

Sample Draft

IN THE COURT OF THE III ADDITIONAL JUNIOR CIVIL JUDGE : CITY CIVIL
COURT : AT HYDERABAD.
O.S. No. of 2007

Mr.RamaRao,
S/o.................... Aged .... Years

Occ: ............. R/o.Hyderabad

Vs

Mr.AppaRao,
S/o..........................., Aged .... Years, Occ:................
R/o.Hyderabad

WRITTEN STATEMENT FILED BY THE DEFENDANT UNDER ORDER VIII, RL.1,

C.P.C.

1) It is submitted that the defendant has gone through the averments made in the plaint and
affidavit filed in support of the plaint. The averments, which are not specifically admitted, are
denied. The Plaintiff is put to strict proof of the same. Most of the averments are not correct and
false and the suit is not maintainable.

2) In reply to Para III (1) of the plaint, it is submitted that I have no acquaintance with the
plaintiff and did not approach at any point of time for hand loan to meet my son’s education and
executed promissory note in favour of the plaintiff. I have sufficient means to support my family.
Hence, there is no question of taking hand loan from the plaintiff and execution of promissory
note in favour of the plaintiff.

3) In reply to para III (2) of the plaint, it is submitted that the notice issued by the plaintiff was
received by me on.............. The contents of the notice are vague and false. Since I did not
approach the plaintiff for any hand loan and executed promissory note, I did not choose to reply
the notice. Hence, the allegations in the notice are denied.

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

4) In reply to para III (3) of the plaint, it is submitted that I did not borrow any amount from the
plaintiff and executed promissory note in favour of him. The allegation of the plaintiff is false
and I need not bound to pay any amount to the plaintiff. It is not correct to say that I have
borrowed a sum of Rs.25,000/- from the plaintiff and executed a promissory note in favour of
him.

5) In reply to Para III (4) of the plaint, it is submitted that since there is no amount is borrowed
from the plaintiff and executed pro-note, the figures of outstanding stated in para therein is false
and fabricated one.

6) It is submitted that I have never approached the plaintiff for any amount said to have been
borrowed by me and executed pro-note. Since we reside in the same street and due to rivalry
between our two families regarding some disputes relating to colony problems, the plaintiff has
fabricated the pro-note and filed the present suit alleging that I have borrowed a sum of
Rs.25,000/- from plaintiff and executed a pro-note. The plaintiff is trying to mislead this Hon’ble
Court and made false allegations in the plaint.

7) The other allegations of the plaint which are not specifically admitted herein are denied. The
plaintiff is put to strict proof of the same.

Hence, it is prayed that this Hon’ble Court may be pleased to dismiss the suit with costs.

Counsel for the Defendant

Defendant

Verification

I, AppaRao, S/o aged about years, Occ: Employee, do hereby declare that the facts stated in
paras 1 to 7 are true and correct to the best of my knowledge, information and belief and I
believe the same to be true and correct. Hence, verified on this the day of June, 2007 at
Hyderabad.

Defendant

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH