WRITTEN STATEMENT

“WRITTEN STATEMENT”

SUBMITTED BY:

Tanushka Shukla B.A. LL.B.(2169)

SUBMITTED TO:

Dr. Meeta Mohini,

Assistant Professor of Law of Evidence,

CHANAKYA NATIONAL LAW UNIVERSITY

MITHAPUR, PATNA (800001)

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 WRITTEN STATEMENT

DECLARATION

I hereby declare that the project entitled “WRITTEN STATEMENT” submitted by me at

CHANAKYA NATIONAL LAW UNIVERSITY is a record of bona fide project work carried out by
me under the guidance of our mentor Dr. Meeta Mohini . I further declare that the work reported
in this project has not been submitted and will not be submitted, either in part or in full, for the
award of any other degree or diploma in the university or in any other university.

TANUSHKA SHUKLA

ROLL NO- 2169

B.A.L.L.B.(Hons.)

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ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable to
an extent . This research work, although prepared by me, is a culmination of efforts of a lot of
people who remained in veil, who gave their intense support and helped me in the completion of
this project.

Firstly, I am very grateful to, my subject teacher Dr. Meeta Mohini, without the kind support and
help of whom the completion of this project was a herculean task for me. I would like to thank her
for her valuable suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement
which helped me in completion of this project. I am also thankful to the library staff of my college
which assisted me in acquiring the sources necessary for the compilation of my project.

Last but not the least; I would like to thank the Almighty who kept me mentally strong and in good
health to concentrate on my project and to complete it in time.

I thank all of them!

TANUSHKA SHUKLA

ROLL NO.-2169

B.A.LL.B. (Hons.)

SESSION: 2019-2024

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Contents

DECLARATION ................................................................................................................................... 2
ACKNOWLEDGEMENT ..................................................................................................................... 3
TABLE OF CONTENT .................................................................................... Error! Bookmark not defined.
INTRODUCTION ....................................................................................................................................... 5
RULE-1 WRITTEN STATEMENT ................................................................................................................. 7
PARTICULARS OF A WRITTEN STATEMENT: RULE 1A-5 & 7-10 .................................................................. 8
Order VIII, Rule 6 ................................................................................................................................... 12
Types of Set Off ................................................................................................................................. 16
Counter claim [Order VIII, Rules 6-A to 6-G] ........................................................................................... 19
CONCLUSION ......................................................................................................................................... 24
BIBLIOGRAPHY ...................................................................................................................................... 24

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INTRODUCTION

Written statement is actually a pleading of the defendant in the answer of the plaint filed by the
plaintiff against him. It is a reply statement of the defendant in a suit specifically denying the
allegations made against him by the plaintiff in his plaint. The provision regarding the written
statement has been provided in the Code of Civil Procedure, 1908. A written statement is a
document filed by a defendant to a suit against the plaint filed by the plaintiff. According to the
basic procedure, after the plaintiff has filed the plaint, s/he is supposed to issue summons upon the
defendant to allow him/her to file the written statement.

The expression "Written Statement" has not been defined in this code. It is a term of specific
meaning ordinarily signifying a reply to the plaint filed by the plaintiff. In other words, it is the
pleading of the defendant wherein he deals with the material fact alleged by the plaintiff in his
plaint and also states any new fact in his favour or takes legal objections against the claim of the
plaintiff. However, an additional written statement is different from a written statement. As filing
the written statement is the right of the defendant but the additional statement is based on the
discretion of the court. Further, in written statement defendant can put his case also under the
heading additional plea, and can state new facts or ground which is necessary to defeat the
opponent. If the defendant wants 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.

In the case of Food Corporation of India v. Yadav Engineer & Contractor 1 it was held that the
expression ‘written statement’ is a term of specific connotation ordinarily signifying a reply to the
plaint filed by the plaintiff.

A written statement should be drafted carefully and artistically. All the general rules of pleading
apply to written statement also. Before proceeding to drat a written statement it is absolutely
necessary to examine the plaint carefully. Like the plaintiff the defendant can also take number of

1
(1982) 2 SCC 499

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defences, either simply or in the alternative, even though they may be inconsistent, provided they
are maintainable at law and not embarrassing.

A written statement may be filed by the defendant or by his duly authorized agent. In the case of
more than one defendant, the common written statement filed by them must be signed by all A
written statement may be filed by the defendant or by his duly authorized agent. In the case of
more than one defendant, the common written statement filed by them must be signed by all of
them. But it is 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.

According to Rule 1, a written statement should be filed within thirty days from the service of the
summons on him. The said period, however,according to the proviso to rule 1,can be extended up
to ninety days from the date of service of summons but the reasons for such delay have to be
recorded in writing. A defendant should present a written statement of his defence in the said
period.

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RULE-1 WRITTEN STATEMENT

The defendant within 30 days from the service of summons has to file the written statement of his
defence. In case the defendant fails to file his written statement within 30 days he can file the same
on any other day as the court permits with reasons to be recorded in writing, but it shall not be later
than 90 days from the date of service of summons.

In the case of Kailash vs Nanhku & Ors.12 the Supreme court considered the question whether the
outer time limit of 90 days mentioned in order 8 Rule 1 is obligatory or directory? It was held that
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.

It was further held that all the rules of procedure are the handmaid of justice. The language
employed by the draftsman of processual law may be liberal or stringent, but the fact remains that
the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no
party should ordinarily be denied the opportunity of participating in the process of justice
dispensation. Unless compelled by express and specific language of the Statute, the provisions of
the CPC or any other procedural enactment ought not to be construed in a manner which would
leave the court helpless to meet extraordinary situations in the ends of justice.

2
AIR 2005 SC 2441

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In The State of Punjab and Anr. v. Shamlal Murari and Anr 3, the Court approved in no
unmistakable terms the approach of moderating into wholesome directions what is regarded as
mandatory on the principle that “Processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice.

In Ghanshyam Dass and Ors. v. Dominion of India and Ors. 4, the Court reiterated the need for
interpreting a part of the adjective law dealing with procedure alone in such a manner as to sub-
serve and advance the cause of justice rather than to defeat it as all the laws of procedure are based
on this principle.

3
(1976) 1 SCC 719
4
(1984) 3 SCC 46

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PARTICULARS OF A WRITTEN STATEMENT: RULE 1A-5 & 7-10

Rule 1A casts a duty on defendant to produce documents upon which he relies upon. Like a
plaintiff, a defendant is also bound to produce the documents which are in his possession and
which are in favour of his defence. If the defendant fails to produce these documents along- with
written statement then they shall not be received as evidence except without the permission of the
court. However nothing in this rule is applicable to documents reserved for cross examination of
plaintiff’s witnesses or documents handed over to witness merely to refresh his memory. Further,
this period can be extended by the court at its discretion and for reasons which the court must
provide in writing. However, the period cannot be extended beyond 90 days.

Now, this provision and the limitation to file written statement has been a matter of debate for a
very long time and has also been subjected to several amendments. Before 1999, it was observed
by courts that the defendants do not file their written statements for more than 120 days or even
sometimes for 6 months and the courts kept extending the time limit in the absence of any strict
provision to curtail the same. This resulted in injustice to the plaintiff, delay in proceedings and
piling up of a huge number of cases before the courts.

Hence, in 1999, an amendment was brought to the Civil Procedure Code and Rule 1 was amended.
After the amendment of 1999, the statute required the defendants to file written statements within
a period of 30 days from the receipt of summons. Though the provision was the need of the hour,
it was not very successful because of the extremely stern requirement. There were genuine reasons
for defendants to not be able to file a written statement within 30 days, so the courts were helpless.
In 2000, a major amendment was brought to the Code and the present provision was enacted as it
stands today. Through the amendment of 2000, the period of 30 days was left unchanged but the
courts were provided discretion to increase the time for a maximum period of 90 days and also
record the reasons for doing the same. This enabled sufficient time to defendants who genuinely
require more time. 5

5
Ashish Agarwal, Limitation for Filing Written Statement under CPC, Legal Bytes, (25 september 2020),
https://www.legalbites.in/limitation-for-filing-a-written-statement/

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Rule 2 provides for new facts to be specifically pleaded. The defendant must state all the new facts
regarding the maintainability and validity of the transaction and all such other grounds of defence,
which if not raised, would take the plaintiff to surprise or would raise issues of facts not arising
out of the plaint such as fraud, limitation, release, payment, performance or facts showing
illegality.

In the case of Udhav Singh v. Madhav Singh Scindia 6 it was held that Rule 2 of Order 8 of C.P.C.
is a rule of practice and convenience and justice. This procedural rule is to sub serve and not to
enslave the cause of justice. It lays down broad guidelines and not cast iron traps for the
defendant in the matter of drawing up his statement of defence. In the case of C. Abdul Shukoor
v. A.P. Rao7 it was held that whether plea raised in written statement is a or not is a matter of
construction of written statement.

Rule 3 provides that denial to be specific. The rule casts a duty on the defendant that he has to
deny the averments of the plaintiff specifically. It shall not be sufficient for a defendant in his
written statement to generally deny the grounds as alleged by the plaintiff. The defendant must
specifically deal with each and every allegation of fact which he does not admit as truth, except
damages.

In the case of Badat & Co. v. East India Trading Co. (AIR 1964 SC 538) It was held 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.

Rule 4 deals with evasive denial. The rule states that 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.

Rule 5 provides for specific denial. It provides that every allegation of the plaint if not denied
specifically or by necessary implication or stated not to be admitted shall be considered to be

6
AIR 1976 SC 744
7
AIR 1963 SC 1150

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admitted except against a person with disability. The proviso of this rule casts a discretion on the
court that it may require any fact so admitted to be proved other than the admission made by the
defendant in the written statement.

In the case of Badat & Co. v. East India Trading Co. 8 It was held that les 3, 4 and 5 of the Order
VIII of the Code of Civil- Procedure form an integrated code dealing with the manner in ,which
the allegations of fact made in a plaint has to be traversed and the legal consequences that follow
from its non-compliance. The written statement must deal specifically with each allegation of fact
made in the plaint and if the defendant denies any such fact, such denial must not be evasive, he
must answer the point of substance and if he fails to do so the said fact must be take to be admitted.

In the case of Modula India v. Kamakshya Singh Deo9 It was held that under Order 8 Rule 5 of
the C.P.C., when there is no written statement, the averments in the plaint are to be taken as correct
and, if they are sufficient under the terms of the statute, a decree has to follow as a matter of course.

Rule 7 provides for defence founded upon separate grounds. It states that 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.

Rule 8 provides for new grounds of defence. It states that 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 in his written statement.

Rule 9 deals with subsequent pleadings. It states that 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 without the permission 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.

Rule 10 deals with procedure when a party fails to present written statement called for by court. In
case the defendant fails to present his written statement in time permitted or fixed by the court, the

8
AIR 1964 SC 538
9
AIR 1989 SC 162

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court will pronounce against him or pass any such other as it thinks fit and decree shall be drawn
upon the said judgment.

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SET-OFF Order VIII, Rule 6

Set off is reciprocal acquittal of debts. “Set-off” means a claim set up against another. It is a cross-
claim which partly offsets the original claim. It is an 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. Where there are mutual debts between the plaintiff and the defendant, one debt may be
settled against the other. It is a plea in defence, available to the defendant. By adjustment, set-off
either wipes out or reduces the plaintiff’s claim in a suit for recovery of money.

In a suit for recovery of money, a defendant can stake his claim to any ascertained sum of money-
legally recoverable by him from the plaintiff as a set-off against the plaintiff’s demand if :

(a) the ascertained sum does not exceed the pecuniary jurisdiction of the court; and
(b) both parties fill the same character as they fill in the plaintiff’s case at the first hearing of the
suit, but not afterwards unless permitted by the Court, present a written statement containing the
particulars of the debt sought to be set-off.

The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court
to pronounce a final judgment in respect of both the original claim and of the set-off. (Order VIII,
Rule 6).

In a suit for injunction, the counter claim for possession by defendant can be entertained under
Order VIII, Rule 6 (A) (1).

Where in a suit for recovery of money by the plaintiff, the defendant finds that he has also a claim
of some amount against the plaintiff, he can claim a set-off in respect of the said amount. The
doctrine of set-off may be defined 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”. A
plea of set-off is “a plea whereby a defendant acknowledges the justice of the plaintiff’s demand,
but sets up another demand of his own, to counterbalance that of the plaintiff; either in whole or
in part”. Thus, it is a “reciprocal acquittal of debts between two persons”. The right of a defendant

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to claim set-off has been recognized under Rule 6. It obviates the necessity of filing a fresh suit by
the defendant.

Where, the plaintiff institutes a suit for recovery of money against the defendant and the defendant
finds that he also has a claim of certain amount against the same plaintiff, he may pray for a set-
off in respect of that amount. The term “set-off’ denotes mutual discharge of debts. It is reciprocal
satisfaction of the claim of plaintiff and the defendant against each other. In simple words, “set-
off’ means that the amount claimed by the plaintiff from defendant is to be satisfied against the
amount that the plaintiff owes to the defendant. It is a cross-claim of plaintiff and defendant to be
reciprocally discharged. The claim of plaintiff relating to certain money from the defendant may
be discharged against the money due to the defendant from the plaintiff. For instance, where ‘X’
files a suit against ‘Y’ for recovery of Rs. 15,000/- but ‘Y’ already holds a decree of Rs. 20,000/-
against ‘X’, the defendant ‘Y’ may plead for the set-off of the claim of plaintiff ‘X’.

The purpose of set-off is to obviate the necessity of a fresh suit by the defendant. Therefore, the
defendant must specifically raise a plea of set-off in his written statement. Such claim must be
made after dealing with the allegations and accusations leveled against him in the plaint. The
written statement must contain full particulars of the amount claimed by way of set-off and how
and when it fell due.

However, the defendant is entitled to raise the plea of set-off only when following conditions exist
:—

1. The suit is for recovery of money.—The plea of set-off shall be available to the defendant only
in a suit instituted against him for recovery of money. If the suit is not a money-suit, the defendant
cannot raise this plea. For instance, in a suit tor dissolution of partnership, the defendant cannot
claim set-off because it not a money-suit. But, in a suit for ejectment of tenant on the ground of
non-payment of rent, in which arrears of rent have also been claimed, the defendant-tenant may
plead set-off. However, in case where ejectment of tenant has been prayed for but amount of unpaid
rent is not demanded, the defendant-tenant cannot raise the plea of set-off since it is no more a
money-suit. Thus, what is necessary is that one of the reliefs sought in the suit against the defendant
must be for recovery of money. In such a suit, the defendant is entitled to raise the plea of set-off.

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2. The defendant’s claim must be for an ascertained sum of money-‘It means that the amount
which the defendant claims against the plaintiff tiff to be set-off must be fixed, definite and known.
Such amount may not by the plaintiff but if it is ascertained, then the defendant may plead set-off.
For unascertained sums, the plea of set-off is not available to the defendant under Rule 6. However,
such unascertained sums may be effectually set-off by consent of parties if the suit is compromised.

3. The money must be legally recoverable.—The term ‘legally recoverable” means that the
debtor is liable to pay the sum under any law. The defendant shall be entitled to claim set-off in
respect of such dues only which the plaintiff is bound to pay under any law. A time-barred debt is
not legally recoverable and hence set-off cannot be pleaded for such amount.

4. Both plaintiff and defendant must fill the same character as they fill in the plaintiffs
claim.—The defendant may plead for set-off only when both the parties i.e., plaintiff and
defendant fill may same character as they fill in the suit. It means that the amount in respect of
which the defendant pleads set-off must be claimable from plaintiff in the same capacity as in the
suit. If the amount payable by the plaintiff to the defendant is in the capacity of a “manager’, but
the plaintiff has filed the present suit in his personal capacity, then the defendant cannot raise the
plea of set-off in respect of such amount.

5. The sum claimed by way of set-off must not exceed the pecuniary limits of the court.—It
is necessary that the amount claimed to be set-off by the defendant is within the pecuniary limits
of the court in which the suit has been instituted.

In Jitendra Kumar Khan v. Peerless General Finance & Investment Co. Ltd10, it was held that under
Order VIII, Rule 6, CPC certain conditions precedent are to be satisfied for application of the said
Rule. Two primary conditions are that it must be a suit for recovery of money and the amount
sought to be set-off must be a certain sum. Apart from the aforesaid parameters there are other
parameters to sustain a plea of set-off under this Rule. However, equitable set-off is different from
legal set-off; it is independent of the provisions of the Code of Civil Procedure. The plea of
equitable set-off is raised not as a matter of right. It is the discretion of the court to entertain and
allow such a plea or not. The said discretion has to be exercised in an equitable manner. The
concept of equitable set-off is founded on the fundamental principles of equity, justice and good

10
(2013) 8 SCC 769.

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conscience. Equitable set-off exists not only in cases of mutual debits and credits, but also where
cross-demands arise out of the same transaction. The mutual debits and credits or cross-demands
must have arisen out of the same transaction or to be connected in the nature and circumstances.
An equitable set-off is not to be allowed where protracted enquiry is needed for the determination
of the sum due.

If the defendant is entitled, he must present the particulars of debt sought to be set-off in his written
statement. But it does not mean that the defendant is under any obligation to necessarily raise the
plea of set-off. He may as well avoid it. It is the choice of defendant whether to claim a set-off or
not. If he opts to claim, he must do it at the first hearing in his written statement. If he prefers not
to claim, he may very well waive his right. However, where the defendant omits to claim set-off
in his written statement, he cannot subsequently claim it unless permitted by the court. Of course,
the defendant may bring independent suit against the plaintiff for recovery of such amount.

The effect of raising the plea of set-off is that the defendant steps into the shoes of plaintiff in
respect of amount claimed by him. Thus, there are virtually two suits under the same suit-number
viz., a suit by plaintiff again: the defendant for recovery of money and a suit by defendant against
the t plaintiff claiming the amount of set-off. Both the suits are tried together. The court pronounces
final judgment in respect, both, the original claim and the set-off. The two suits are considered to
be independent of each other. Even if the suit instituted by plaintiff is dismissed or is withdrawn,
it makes no difference. The claim of defendant for amount of set-off does not go with the suit and
the court may pass a decree in favour of defendant in respect of that sum.

Types of Set Off

Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks of legal set-off only.
In contrast to legal set-off, an equitable set-of, can be claimed for unascertained money but it must
arise from the same transaction. For example, where a servant sues his master for recovery of
amount of salary, the master can claim set-off for loss sustained by him due to negligence of
servant since it arises out of same relationship.

Legal Set Off

It is apparent from a reading of the above provisions that in order to constitute legal set-off, the
following conditions must be fulfilled, viz.,

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(a) The suit must be for recovery of money.

(b) The defendant must claim an ascertained sum of money. A sum of money due in respect of a
disputed transaction cannot constitute an ascertained sum.

(c) That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred by the
law of limitation.

(d) The plaintiff’s claim and the set-off must be claimed in the same character. The amount must
be recoverable by the defendant and if there are more than one defendant, then by all the
defendants. Again, the amount must be recoverable by the defendant from the plaintiff and if there
are more than one plaintiff, then from all the plaintiffs.

(e) The set-off should be within the pecuniary jurisdiction of the Court.

The above provisions further establish that the Court must treat the claim of the defendant exactly
as if the defendant had filed a plaint and the Court must pass a decree in favour of the defendant,
if his claim is established.’ It is only in a written statement that a plea of set-off can be raised. The
rule further confines only to set-off and does not provide for a counter-claim, which is allowed by
way of equitable set-off, and is not expressly provided in Rule 6-A of Order VIII, by C.P.C.
(Amendment) Act, 1976.

Equitable set-off

Court of Equity in England allowed set-off when cross-demands arose out of the same transaction,
even if the money claimed by way of set-off was an unascertained sum of money. The Common
Law Courts refused to take notice of equitable claims for they were not ascertained sums. The
Courts of Equity, however, held that it would be inequitable to drive the defendant to a separate
cross-suit and that he might be allowed to plead a set-off though the amount might be
unascertained. Such a set-off is called an equitable set-off.

In India, the distinction between legal and equitable set-off remains. The provisions as to legal set-
off are contained in Order VIII, Rule 6, C.P.C. The same has now been enlarged by insertion of
Rule 6-A with regard to counter-claim by the defendant. So far as equitable set-off is concerned it
is provided in Order XX, Rule 19(3), C.P.C., which states that “the provisions of this rule (relating

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to a decree for set-off or counter-claim and an appeal therefrom) shall apply whether the set-off is
admissible under Rule 6 of Order VIII or otherwise.” The provisions of Order VIII, Rule 6, and
Rule 6-A are, therefore, not exhaustive because apart from a legal set-off an equitable set-off can
be pleaded independently of the specific provision of the Code.

Principles governing equitable set-off-

As a result of a series of decisions of the Courts in India, the following propositions of law with
regard to equitable set-off emerged :

1. A equitable right of set-off exists when both the claim of the plaintiff and that of the defendant
arise out of the same transaction.

2. The law of equitable set-off applies where the cross-claims, though not arising out of the same
transaction, were closely connected together.

3. In order that a claim for equitable set-off may arise, it is not sufficient that there are cross-
demands; it is further necessary that there should be a connection between them which makes it
inequitable to drive the defendant to a separate suit—as when the demands arise out of the same
transaction or when there is on each side knowledge of and confidence in one debt discharging the
other.

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COUNTER CLAIM [ORDER VIII, RULES 6-A TO 6-G]

“Counterclaim” may be defined as “a claim made by the defendant in a against the plaintiff”. It is
a claim independent of, and separable from, suit plaintiff’s claim which can be enforced by a cross-
action. It is a cause of action in favour of the defendant against the plaintiff.

In addition to pleading a set-off in a suit, the defendant may also set-up a counter-claim. The term
“counter-claim” means a claim raised by the defendant against the claim of plaintiff in a suit. It is
essentially and substantially a cross-action of the defendant. It may be described as a cause of
action accruing to defendant against the plaintiff. However, such cause of action must accrue
before filing of written statement by the defendant. As such, the defendant may set-up a counter-
claim only in respect of a claim for which the defendant can file an independent suit. However,
the defendant must specifically state in his written statement that he is setting-up a counter-claim.
Such counter-claim shall not exceed the pecuniary jurisdiction of the court.

The defendant must set-up his counter-claim as early as possible because the no counter-claim can
be raised after framing of issues and closure evidence.

One of the pleas open to a defendant to defeat the relief sought by the plaintiff against him is a
counterclaim. Counterclaim may be defined as “a claim made by the defendant in a suit against
the plaintiff”. Therefore, defendant in a suit may, in addition to his right to plead a set-off , a
counterclaim. It may be set up only in respect of a claim for which the defendant can file a separate
suit.”.” Thus, a counterclaim is substantially a cross-action.

Rule 6-A contemplates counter-claim in any suit. The scheme of the new rule is to permit the
defendants to set up counter-claims, which arise between the parties and which are cognizable by
the Court where the suit is pending. A defendant in a suit may, in addition to his right of pleading
a set-off under Rule 6, also 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 his defence has expired, whether such counter-claim is in the nature of f a
claim for damages or not : provided that such counter-claim shall not exceed the pecuniary limits
of the jurisdiction of the Court. (Order V111, Rule 6-A).

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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. The plaintiff
shall be at liberty to file a written statement in answer to the counter-claim of the defendant within
such period as may be fixed by the Court. The counter-claim shall be treated as a plaint and
governed by the rules applicable to plaints. Order VIII, Rule 6-A (2-4).

Rule 6-B of Order VIII provides that 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. That rule does not apply where specifically a counter-claim is raised,
but confines itself to a ground mentioned in the written statement as supporting a right to counter-
claim.

Before the Amendment Act of 1976, there was no specific provision for counterclaim in the Code.
The Supreme Court, however, held the right to make a counterclaim statutory.'” It was held that
the court has power to treat the counterclaim as a cross-suit and hear the original suit and
counterclaim together if the counterclaim is properly stamped.

In the leading case of Laxmidas v. Nanabhai[3], the Supreme Court observed, “The question has
therefore to be considered on principle as to whether there is anything in law—statutory or
otherwise—which precludes a court from treating a counterclaim as a plaint in a cross-suit. It is
difficult to see any. No doubt, the Code of Civil Procedure prescribes the contents of a plaint and
it might very well be that a counterclaim which is to be treated as a cross-suit might not conform
to all these requirements but this by itself is not sufficient to deny to the court the power and the
jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is
really a plaint in a cross-suit is made part of a written statement either by being made an annexure
to it or as part and parcel thereof, though described as a counterclaim, there could be no legal
Objection to the counter treating the same as a plaint and granting such relief to the defendant as
would have been open if the pleading had taken relief of a plaint. To hold otherwise would be to
erect what in substance is a mere defect in a form of pleading into an instrument for denying what
justice manifestly demands.”, (emphasis supplied)

Object of Counter Claim-

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Before the Amendment Act of 1976, no counterclaim or set-off could be claimed except in money
suits. The Law Commission of India, however, recommended to avoid multiplicity of proceedings,
right to the defend-ant to raise a plea of set-off in addition to a counterclaim in the same suit. The
provisions relating to counterclaim thus seek to save time of courts, exclude inconvenience to the
parties to litigation, decide all disputes between the same parties avoiding unnecessary multiplicity
of judicial proceedings and prolong trials. The object appears to be to reduce pendency of cases so
that cause of action and cross-claim similar in nature could be clubbed together and disposed of
by a common judgment.’ The purpose of the provision enabling filing of a counter-claim is to
avoid multiplicity of judicial proceedings, save the Court’s time and exclude the inconvenience to
the parties by enabling decision in all disputes between them in the course of the same proceedings.
If the counter-claim prolongs the trial, causes delays or complicate the otherwise smooth flow of
proceedings, the court would be justified in exercising its discretion not in favour of permitting a
belated counter-claim. Usually if the issues have already been framed and the trial has already
commenced or concluded, a counter-claim not contained in the original written statement may be
refused to be taken on record.

The right to make a counter claim is statutory and a counter claim is not admissible in a case which
is admittedly not within the statutory provisions.

The counter-claim is treated as a plaint. Hence, the plaintiff is entitled to file a written statement
to answer the counter-claim of the defendant. If, the plaintiff prefers not to reply, the court may
pronounce judgment against him in respect of such counter-claim. If, the plaintiff contends that
the claim raised by defendant by way of counter-claim ought to be raised in an independent suit,
he may accordingly apply to the court before settlement of issues.

A pleading by way of counter-claim runs with the right of filing a written statement and that such
right to set up a counter-claim is in addition to the right of pleading a set-off conferred by Rule 6.
A set-off has to be pleaded in the written statement The counter-claim must necessarily find its
place in the written statement. Once the right of the defendant to file written statement has been
lost or the time limited for delivery of the defence has expired, then neither the written statement
can be filed as of right nor a counter-claim can be allowed to be raised, for the counter-claim under
Rule 6-A must find its place in the written statement.

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The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a
discretion also to permit a written statement containing a plea in the nature of set-off or counter-
claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable
manner keeping in view all the facts and circumstances of the case including the conduct of the
defendant, and the fact whether a belated leave of the Court would cause prejudice to the plaintiff
or take away a vested right which has accrued to the plaintiff by lapse of time.

An application for counter claim under Order VIII, Rule 6-A is not exfacie barred after filing of
written statement.’ In a suit for declaration of title and possession, defendant sought to the WS
filed, subsequently amend claiming recovery of possession, amendment alleged to be necessitated
because of tresspass by plaintiff. It was held that subsequent filing of counter claim on basis of
tresspass is not tenable. Tresspass as cause of action for filing counter claim cannot be said to have
arisen prior to filing of WS.

Similarly in Rohit Singh v. State of Bihar,’ it was held that counter claim cannot be raised after
issues are framed and evidence is closed, further, counter-claim directed solely against co-
defendants cannot be maintained. Court cannot proceed and grant decree in favour of said co-
defendants only on basis that no answer has been filed to their counter-claim by other defendants.

A counter claim was filed claiming damages for wrongful detention of goods by locking room in
her possession, 5 years after alleged locking of room. Defendant filing counter claim had
knowledge of detention of goods right from first day. It was held that counter claim was barred,
even if not Art. 91 but residuary article of Limitation Act is applied. Merely because in another
suit inventory of goods in said room was prepared that would not give rise to fresh cause of action
for respondent. Suit for damages for wrongful detention of goods is based on different footing vis-
a-vis a continuing wrong. Thus, limitation would run from time when property is wrongfully taken.

Mode of setting up counter-claim

There are three modes of pleading or setting up a counter-claim in a civil suit :

(1) First, the written statement filed under Rule 1 may itself contain a counter-claim which in the
light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff
preferred in exercise of legal right conferred by Rule 6-A.

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(2) Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the
leave of the Court in a written statement already filed.

(3) Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9.

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CONCLUSION

At last, it is clear that the written statement is a reply statement of the defendant to the plaintiff.
In this defendant state his defence and deny the allegation of the plaintiff as per his material facts.
It is a method to disclosed both sides of the suit in both the party present his favour by the way of
the plaint, the plaintiff and by the way of written statement, the defendant in the court.

BIBLIOGRAPHY

▪Civil Procedure by C.K. Takwani

▪ Written statement Order 8 of CPC,, meaning, rules, particulars, time limit etc.,
https://www.lawnotes4u.in/written-statement-order-8-of-cpc-meaning-rules-particulars-time-limit-
etc/#Conclusion

▪Pleading, Plaint and written statement, https://www.lawyersclubindia.com/articles/pleading-plaint-

and-written-statement-11631.asp

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