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IN THE HIGH COURT OF JHARKHAND AT RANCHI a

W. P. (C) No. 4413 of 2013
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Gouri Shankar Mahato, s/o Late Jyoti Mahato, r/o Village
Bhelatand, PO Nagnagar, PS Barwadda, Distt. Dhanbad
.... ...... Petitioner
b
Versus
Smt. Chepia Mahatain, d/o Late Ganga Mahto, r/o Village
Bhelatand, PO Nagnagar, PS Barwadda, Distt. Dhanbad
..... ...... Respondent
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR c
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For the Petitioner : Mr. Shailesh, Adv.
For the Respondent : Mr. Ramchandar Sahu, Adv.
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d
11/26.09.2018 The petitioner feels aggrieved of order dated 20.06.2012
passed in Title Suit No.276 of 2007 by which his application under
Order VIII Rule 9 CPC has been rejected.
2. On a bare reading of the aforesaid application e

dated 29.01.2010, I come to a conclusion that the petitioner has no

reason to feel aggrieved by rejection of that application.
3. The provision under Order VIII Rule 9 CPC, is not a
f
provision under the Code for filing written statement by the
defendant, except where a counter-claim or a claim for set-off has
been raised in the suit. Order VIII Rule 9 CPC reads as under :
“9. Subsequent pleadings– No pleading subsequent g
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 h
time of not more than thirty days for presented the
same.”

4. Order VI CPC deals with pleadings generally. It provides

forms of pleading, particulars and further or better statement to be
given where necessary, verification of pleadings, striking out
pleadings, amendment of pleadings etc. Order VI Rule 1 CPC clarifies
that plaint and written statement shall constitute “pleadings in the
suit”. Order VII deals with plaint and Order VIII deals with written
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2
a

statement. It is in this context that Order VIII Rule 9 CPC provides that
no pleading subsequent to the written statement of a defendant shall be
presented. Exception to this restriction has, however, been carved out in
b
this rule itself. It provides that when a set-off or a counter-claim has been
raised by the defendant in his written statement, the plaintiff may be
permitted to file a written statement or additional written statement,
however, not without leave of the Court and only upon such terms as the c
Court thinks fit. Order VIII Rule 6 provides that when a defendant claims
set-off against the plaintiff’s demand, he may at the first hearing of the
suit, but not afterwards unless permitted by the Court, present a written
statement containing particulars of the debt sought to be set-off. d

Sub-rule 2 to Rule 6 provides that the written statement now shall have
the same effect as a plaint in a cross-suit and sub-rule 3 provides that the
rules relating to a written statement by a defendant apply to a written
e
statement in answer to a claim of set-off. Order VIII Rule 6 A deals with
counter-claim. It provides that 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 f
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 submitting his defence
g
has expired. A similar procedure follows when a counter-claim is raised
by the defendant as in the case of a claim of set-off.
5. In the context of the aforesaid procedures prescribed under
Rule 6 and Rule 6-A to Order VIII CPC if the expression “except by the
h
leave of Court and upon such terms as the Court thinks fit” as occurring in
Rule 9 is construed, it becomes clear that subsequent pleadings as
envisaged under Rule 9 must remain confined to filing of written
statement or additional written statement in cases where the defendant
has claimed a set-off or raised a counter-claim in his written statement.
Powers of the Court under Rule 9 to permit subsequent pleadings cannot
be exercised to permit a party to file his written statement which he has
failed to file within the statutory period as provided under
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3 a

Order VIII Rule 1 CPC and, resultantly, debarred from filing the
written statement.
6. Mr. Shailesh, the learned counsel for the petitioner submits
b
that it is the second part of Rule 9 which gives powers to the court to pass
an order in the interest of justice. This contention is misconceived. The
second part of Rule 9 simply provides an opportunity to the plaintiff to
file written statement or additional written statement in cases where the c

defendant has claimed set-off or raised a counter-claim.

7. The application under Order VIII Rule 9 CPC filed by the
defendant for permission of the court to accept the written statement was
d
apparently misconceived. However, it appears from the impugned order
dated 20.06.2012 that a prayer was made by the defendant to accept his
objection/reply to the application under Order 39 Rule 1 and 2 CPC as his
written statement of defence. By now it is a well-accepted practice that e
even if a defendant has failed to file his written statement stand taken by
him in opposition to the application for injunction shall be treated as his
defence in the suit [refer “Kuldeep Umraosingh Ostwal & Anr. Vs.
Chandrakant N. Patel & Ors.” in Writ Petition No.1058 of 2010 of f

Bombay High Court]. This aspect of the matter has not been considered
by the trial Judge in the impugned order dated 20.06.2012.
8. Viewed thus, and in view of the fact that the petitioner has
g
made a prayer for treating his reply to the application for injunction as his
written statement of defence in the suit, while finding no infirmity with
that part of the impugned order dated 20.06.2012 by which his
application under Order VIII Rule 9 CPC has been rejected, the trial court h
shall permit the defendant to lead evidence on his stand taken in his reply
to the application for injunction.
9. This writ petition stands disposed of, with the
aforesaid direction.
(Shree Chandrashekhar, J.)
R.K.
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