WRITTEN STATEMENT

Written statement is the pleading of the defendant through which he deals with each and every
material fact alleged by the plaintiff in his plaint and in addition to this can also state any new
fact in his favour or can take any legal objection against the claim of the plaintiff. Order 8 of
CPC lays down rules for drafting of written statement and enumerates the defenses available to
the defendant.
Particulars to be contained in a written statement
1. Formal portion of Written Statement: Written statement of the defendant shall bear the
same name of the court, number of the suit and the parties as it is in the plaint.
2. Body of Written Statement:
A. Preliminary objections (O8 R2): Before proceeding to deal with the matters of facts
alleged in the plaint, the defendant must raise points disputing the maintainability of
the suit itself like he can say that the plaint does not disclose a cause of action and is
liable to be dismissed on that ground or that the plaintiff has concealed material facts
from the court and the plaint is liable to be dismissed on the ground of concealment of
facts. These objections are objections in point of law and do not relate to the merits of
the case.
B. Admissions and denials: After raising the preliminary objections in point of law, the
defendant should take up each and every para of the plaint. Every allegation of the fact
in the plaint should be either admitted or denied by the defendant. In legal language
such admission or denial is called “traverse”. With regard to admissions and denials,
there are certain rules which are as follows:
i)Denial to be specific: It shall not be sufficient for the 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(O 8 R3). If the
allegations are admitted in their entirety, they need not be repeated but may be admitted with
reference to paragraphs, e.g., “the defendant admits the allegations in paras 3 and 4 of the
plaint.”
ii)Denial not to be evasive: Where the defendant denies an allegation of fact in the plaint, he
must not do so evasively, but answer the point of substance. Allegation of facts in the plaint
should be denied very clearly, specifically and explicitly, e.g., it would not be sufficient for the
defendant to say that “he denies that he received Rs. 1000 from the plaintiff.” Here he must state
that “the defendant denies that he received Rs 1000 or any part thereof from the plaintiff.”
In Badat & Co. v. East India Trading Co. AIR 1964 SC 538, Justice Subba Rao of the Supreme
Court, while elaborating Rules 3, 4 and 5 of Order 8 observed that, “These three rules form 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.”
iii) Constructive admission: Defendant is bound to admit or deny each and every material fact
alleged by the plaintiff. If the defendant fails to deny any allegation of fact in the plaint either
specifically or by implication or he does not say that he does not admit this fact, then it shall
taken to be admitted except as against a person under disability. But even in such a case court
may require the fact to be proved otherwise than by such admission(O 8 R5). If one does not
make it clear in his written statement that he does not admit a particular fact, he runs the risk of
being taken to have admitted it. This is known as the rule of constructive admission.
C. Dilatory Pleas: Dilatory pleas are pleas involving time and these pleas must be taken at the
earliest possible opportunity before the pleas on merits are taken e.g the pleas regarding minority
of the plaintiff or the defendant or the plea that a certain person is necessary party to the suit and
should be joined as a party or plea regarding insufficiency of court fee paid by the plaintiff, or
the plea regarding the jurisdiction of the court are all dilatory pleas. It is in the interest of justice
that these questions should be decided first before proceeding with the trial of the case on merits.
D. Special defences :
i) Limitation: Plea of limitation is a complete defence and should be raised prominently in
the written statement. A plea of limitation should be raised in the following form, “The suit is
barred by article---of the second schedule to Limitation Act, 1963.”
ii) Jurisdiction: The plea of jurisdiction should be raised in the written statement and the
facts on which such plea is based should also be specifically set forth like “The defendant denies
that he resides within the jurisdiction of this court, hence this court has no jurisdiction to try the
suit”.
iii) Confession and avoidance: Plea of confession and avoidance is taken up by the
defendant when he admits a particular fact alleged by the plaintiff but at the same time tries to
avoid his liability by setting up certain facts like he was induced to enter into contract either by
coercion, undue influence or fraud.
SET-OFF (O8 R6): Set off is a plea of defence available to the defendant in a suit for
recovery of money, whereby the defendant seeks to mitigate the amount claimed by the plaintiff
by proving the reciprocal liability of the plaintiff towards him. In other words, where there are
mutual debts between the plaintiff and defendant, one debt may be settled against the other.
When this plea is taken up by the defendant, he is excused from filing a fresh suit against the
plaintiff. Rule 6 of Order 8 enumerates the particulars of set off to be given in written statement.
(a) The suit must be for the recovery of money
(b) It must be an ascertained sum of money
(c) Such sum must be legally recoverable
(d) It must be recoverable by the defendant or by all the defendants if more than one
(e) It must be recoverable from the plaintiff or from all the plaintiffs if more than one
 (f) It must not exceed the pecuniary limits of the jurisdiction of the court in which the suit
is brought.
(g) Both parties must fill, in the defendant's claim to set-off the same character as they fill in
the plaintiff's suit.
Effect of set off: A claim of set off must be specifically made in the written statement. It should
be raised after the defence to the plaintiff’s claim. It should give all the particulars of set off, the
amount claimed, the cause of action for the amount, and the date on which it became due. Where
the defendant claims set off, he is put in the position of plaintiff with regard to the amount
claimed by him. Court fees must be paid on the valuation of claim of set off( on the whole
amount claimed by the defendant). Even if the plaintiff’s suit is dismissed , or the suit is
withdrawn by the plaintiff, it does not affects the claim for set off by the defendant and a decree
may be passed in favour of the defendant if he is able to prove his claim.
COUNTER CLAIM: The provisions relating to counter claim were inserted in Civil Procedure
Code by the Amendment Act of 1976. Thus, Rules 6-A to 6-G of Order 8 contain provisions
relating to counter claim. A counter claim is basically an independent cause of action of the
defendant against the plaintiff. It is to avoid multiplicity of proceedings that the defendant is
given liberty to file a counter-claim and get adjudication. Since it is an independent cause of
action, adjudication is required, and the court is allowed to proceed to adjudicate the same in
spite of the fact that the claim is made in a suit filed by the plaintiff. This is a cross action against
the plaintiff and not merely a defence to the plaintiff’s claim. A counter claim may be set up in
respect of any cause of action accruing to the defendant against the plaintiff either before or
after filing of the suit but before the defendant has delivered his defence or before the time
limited for delivering his defence has expired. The rules relating to counter claim provide as
under:
a) Counter claim shall not exceed the pecuniary limits of the jurisdiction of the
court.
b) It shall have the same effect as a cross suit and the court shall pronounce
judgment in the same suit, both on the original claim and the counter claim.
c) Plaintiff shall file a written statement in answer to the counter claim failing which
court may pronounce judgment against him but only with respect to the counter claim. The
rules relating to a written statement shall apply to written statement filed in answer to a
counter claim.
d) Counter claim shall be treated as a plaint and all the rules governing drafting of
plaint will be applicable to the drafting of counter claim.
e) The dismissal, stay or discontinuance of the suit of the plaintiff will have no effect
upon the proceedings relating to counter claim. Court can still adjudicate upon the counter
claim.
Difference between Set off and Counter Claim
1. A set off is a ground of defence, a shield, which, if established would answer the claim of the
plaintiff partially or wholly, counter claim is a weapon of offence, which enables the defendant
to enforce a claim against the plaintiff as effectually as in an independent suit.
2. Set off is always for an ascertained sum of money except in case of equitable set off, a counter
claim need not be for an ascertained sum.
3. When the amount claimed by the defendant in plaintiff’s suit is less than or equal to the
plaintiff’s claim, it is set off in strict sense of the term, but if that amount exceeds the claim of
the plaintiff, the claim for excess amount is really a counter claim.
4. In the case of set off, the amount claimed to be set off must be recoverable at the date of the
suit, while in case of counter claim, such amount must be recoverable at the date of the filing of
written statement.
5. This is prerequisite for claiming set off that both of the parties must fill the same character as
they fill in plaintiff’s suit but this is not necessary in case of counter claim.
6. In set off, if the plaintiff wants to raise the plea of limitation, he will have to prove that the set
off was barred when the plaintiff commenced his action. In case of counter claim, the plaintiff
will have to prove that such claim was barred when it was pleaded.
Consequences of failure to file written statement within the prescribed time: Rule 1 of
Order 8 prescribes the time limit within which the defendant should present his written
statement. Before the Amendment Act of 2002, the requirement was presentation of written
statement at or before the first hearing of the suit or within such time as the court may permit.
After this amendment, in order to expedite disposal of cases, 30 days time period from the date
of service of summons upon the defendant has been prescribed for the filing of written statement
and if the defendant fails to present the written statement within the said period, this period can
be extended by the court but it shall not be later than 90 days from the date of service of
summons upon the defendant and court shall record reasons for the extension of time.
Rule 5(2) of Order 8 states that where the defendant has not filed his pleading, court can
pronounce judgment on the basis of the facts contained in the plaint (except as against a person
under disability). But even in such a case court has discretion to require such fact to be proved
and this discretion of the court will be guided by the consideration whether the defendant could
have or has engaged a lawyer. When court pronounces judgment under this rule, a decree shall
be drawn up in accordance with the judgment which shall bear the date on which the judgment
was pronounced.O 8 R5(4).
As per rule 9 of Order 8, after the defendant has presented his written statement, no subsequent
pleading other than by way of defence to set off or counter claim shall be presented except by the
leave of the court and upon the terms fixed by the court. But the court may, in its discretion
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.
And lastly, rule 10 of Order 8 provides for procedure when a party fails to present written
statement called for by court. It says that when the written statement is required from the
defendant under rule 1 or rule 9, and he fails to present the same within the time fixed or
permitted 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.
Now question arises whether the defendant loses his right to file the written statement after the
stipulated time period or the court has power to entertain the written statement beyond such time
period. There are divergent views on this matter. According to one view, the words used in O8
R1 are precise and unambiguous and, therefore, the basic rule of interpretation must be followed,
viz. where the language of rule is clear, the Court cannot abstain from giving effect to it merely
because it would lead to more hardship. Therefore, howsoever, it may be harsh to the party, if the
language of the amended O8 R1 is plain and simple, then effect should be given to the same and
it cannot be read otherwise. Earlier the Court's power to permit filing of written statement was
not hedged in by any limitation. As a result a defendant could avoid filing of the written
statement on one pretext or the other postponing the trial of the suit indefinitely which was found
to be objectionable. Therefore, to curtail the delay, the legislature regulated the discretion to be
exercised by the Court. The discretion conferred upon the Court is not taken away but it is now
regulated by prescribing the limitation upon the Court for exercising such discretion. Therefore,
if O8 R1 is read in any other manner, for instance to hold the provisions directory, then the
words “which shall not be later than 90 days from the date of service of summons” will be
rendered nugatory and redundant. (Prahakar Madhavrao Mule v. Bhagwan Mitharam, 2004 (2)
Mh.L.J.1058).
The other view is that the intention of the legislature in introducing the amended provisions of
O8 R1 is not to penalize the defendant who does not submit his defence within the stipulated
period or to take away the discretion that was vested in the Court prior to the amendment.
Procedural Rules are normally not considered mandatory in nature. Procedure is something
designed to facilitate justice. The provisions of O8 R1 are therefore directory in nature. Rules 9
and 10 of Order 8 give discretion to the trial Court to allow the defendant to file written
statement even after the expiry of a period of 90 days. But the provisions of O8 R1 should
always be kept in mind while passing order extending time for filing written statement and
ordinarily such extension shall not be granted except in exceptional and special circumstances
(Chintaman Sukhdeo Kaklij and Ors. V. Shivaji Bhausaheb Gadhe & Ors., 2004 (5) BomCR
573). Similar observations have been made by the apex Court in Salem Advocate Bar
Association, Tamil Nadu v. Union of India (2005(2) ACJ 492), wherein it was held that the
provisions of O8 R1 CPC are directory in nature. It intends to curb the mischief of unscrupulous
defendants adopting dilatory tactics, delaying the disposal of cases; causing inconvenience to the
plaintiffs. The object is to expedite the hearing and not to scuttle the same. While justice delayed
may amount to justice denied, justice hurried may in some cases amount to justice buried. All the
rules of procedure are the handmaids of justice. Unless compelled by express and specific
language of the statute, the provisions of 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. Moreover, rule 10 of Order 8 is worded as, “the court shall pronounce
judgment against him, or make such order in relation to the suit as it thinks fit.” It makes it
clear that it is not mandatory for the court to pronounce judgment against the defendant in
default. It can also make any other order in relation to the suit as it thinks fit which may also
include the order to file written statement beyond the stipulated time period.
In Naveed Ahmed v. Karnataka Bank Ltd. 2016 (4) AIR Kar R 189, Karnataka High Court has
held that when the defendant fails to file the written statement , it may be lawful for the court to
pronounce the judgment on the basis of the facts contained in the plaint. But merely because it is
lawful, it does not mean that the Court should abdicate its function of finding out as to whether
the plaintiff has made out a case or not. Provisions of O8 R10 of CPC are not mandatory, in the
sense, giving no option to the Court except to pass a judgment in favour of the plaintiff. Court
has to comprehend facts and circumstances of each case and consider plaintiff’s case set up in
the plaint and see if the the case is made out in favour of the plaintiff.