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SEMESTER (2013-2014)



In legal dictionary the word written statement means a pleading for defence. Though the
expression of written statement has not been defined in the Civil procedure code explicitly, one
can say that, it is a term of specific connotation ordinarily signifying a reply to the plaint filed
by the plaintiff.1 In other words, a written word is a pleading of the statement wherein he deals
with every material fact alleged by the plaintiff in his plaint and also states any new facts in his
facvour or takes legal objections against the claim of the plaintiff.2
A written statement may be filed by the defendant or by his duly constituted agent. Where there
are several defendants and a common written statement is filed by them, it must be signed by all
of them. It is, however, sufficient if it is verified by one of them who is aware of the facts of the
case and is in a position to file an affidavit. 3 But, a written statement filed by one defendant does
not bind the other defendants.4
The defendant shall, within thirty days from the date of service of summons o 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 in no
case be later than 90 days from the date of service of summons.
A careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it
casts an obligation on the defendants 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
1 Food Corporation of india v Yadav Engineer and Contractor, (1982) 2 SCC 499
3 Jugeshar Tiwari v Sheopujan Tiwary, AIR 1986 Pat 35
4 id

part of the substantive law. In Salem Bar Association v Union of India 5, the Supreme Court has
stated that the provisions including proviso to Rule 1,Order 8 of the code are not mandatory but
directory. Third of all. 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 chargin of the plaintiffs 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. It has been held that in Salem Advocate Bar Association v Union of
India6 that delay can be condoned and written statement can be accepted even after the expiry of
90 days from the date of service of summons in exceptionally hard cases. The very fact that Rule
10 is reintroduced by the Act 22 of 2002 by the parliament would show that the parliament never
intended the civil courts to pronounce judgement immediately after the failure on the aprt of the
defendant to file the written statement within 90 days. The process of justice may be speeded up
and hurried, but the fairness, which is a basic element of justice cannot be permited to be buried.
In Bhanu Kumar Jain v Archana Kumar,7 the Supreme Court held that the provisions of Rule 10,
Order 8 of the code even in a case where no written statement has been filed , the Court may
direct the parties to adduce evidence in which case the Court may pass a decree upon recording a
satisfaction that the plaintiff has been able to prove his case.

5 AIR 2005 SC 3353

6 id
7 AIR 2005 SC 626


The Courts are more generous in allowing the amendment of the written statement as the
question of the prejudice is less likely to operate in that event.The defendant has a right to take
alternative plea in defence which, however, is subject to an exception that by the proposed
amendment the other side should not be subjected in injustice and any admission made in favour
of the plaintiff is not withdrawn.
In B.K. Narayan Pillai v Parameshwaran Pillai,8 the Supreme Court held that the principles
applicable to amendments of written statements. However, Courts are more generous in allowing
amendments to written statements as a question of prejudice is less likely to arise. All
amendments of the pleadings which are necessary for the determination of the real controversy in
the suit should be allowed provided that the proposed amendment does not amend alter or
substitute a new cause of action. Inconsistent or contrary allegation in the negation to the
admitted position of facts should not be allowed to be incorporated via means of an amendment.
The power to allow amendments can be exercised at any stage of the proceedings in the interest
of justice.9 The delay in filing the petition for amendment must be properly compensated by
costs and any error or mistake which, if not fraudulent, should be made a ground for rejecting

8 AIR 2000 SC 614

9 State of Maharashtra v Hindustan Construction Company Ltd, AIR 2010 SC 1299