WRITTEN STATEMENT

ORDER 8
Meaning

 It is a reply to the plaint.

 It’s a pleading of the defendant wherein he deals with
every material fact alleged by the plaintiff in his plaint
and also states any new facts in his favour or takes legal
objections against the claim of the plaintiff.
 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.
When it is to be filed

 It has to be filed within 30 days from the service of

summons on the defendant.
 This period can be extended upto 90 days.
 In the case of Salem Advocate Bar Assn.(II) v. Union of
India (AIR 2005 SC 3353), the SC held that there is no
restriction that after expiry of 90 days, further time
cannot be granted.
 This provision providing for upper limit of 90 days for
filing written statement is directory.
Particulars
Before proceeding to draft a written statement, it is
necessary to examine the plaint.
Like a plaintiff, a defendant may take a number of defences.
Special rules of defence
1. New facts such as suit is not maintainable or that the
transaction is either void or voidable must be raised.
If the plea is not taken, it may lead to the plaintiff to
believe that defendant has waived his right by not relying on
that point.
Defendant will not be allowed to rely on a ground of defence
which he has not taken in his written statement.
2. Denial must be specific. He must deal specifically with
each allegation of fact which he does not admit, except
damages.
3. Denial should not be vague or evasive.
4. Every allegation of fact in the plaint, if not denied
specifically or by necessary implication shall be taken to
be admitted
When the defendant has not filed a written statement the
court may either pronounce judgment on the basis of facts
stated in the plaint or may require any such fact to be
proved.
For instance, if the plaintiff alleges that the defendant took
possession of the plaintiff’s house and the defendant wants
to deny both the allegations of having taken possession of
the house as well as the plaintiff’s ownership of the house,
he has to expressly do so by saying-
The defendant never took possession of the house.
The said house is not of the plaintiff.
If the plaintiff asserts that the defendant broke and entered
into the shop of the plaintiff and seized, took and carried
away all the furniture, and other effects which were
therein.
The correct reply will be:
The defendant never broke or entered into the shop of the
plaintiff or seized, took or carried away any of the furniture
and other effects which were therein.
5. Any new ground of defence which has arisen after the
institution of the suit or presentation of a written
statement claiming a set-off or counterclaim may be
raised by the defendant.
6. No pleading after written statement of the defendant
other than by way of defence to a set-off or counterclaim
can be filed.
7. If the defendant fails to present written statement within
the time permitted by the court, the court will
pronounce the judgment against him or pass such order
in relation to the suit as it thinks fit.
When any party from whom a written statement is required
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 as it thinks fit. (Rule 10)
It is not mandatory for the court to pass a decree in favour
of the plaintiff straightaway because a written statement
has not been filed.
Documents relied on in written statement
Like a plaintiff, a defendant is also bound to produce all the
documents in support of his defence, or claim for set-off or
counterclaim which are in his possession.
If defendant fails to produce them, they will not be received
in evidence except with the leave of the court.
 SET-OFF
Rule 6, Order 8
 Means a claim set up against another.
 Where there are mutual debts between the plaintiff and
the defendant, one debt may be settled against the other.
 It’s a plea in defence available to the defendant.
 Set-off wipes out or reduces the plaintiff’s claim in a suit
for recovery of money.
 In a suit for recovery of money, 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.
 In this plea, 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.
Illustrations

 A sues B on a bill of exchange for Rs. 500. B holds a

judgment against A for Rs. 1000. The two claims being
both definite, pecuniary demands may be set-off.
 A sues B for Rs. 10,000. B cannot claim set-off of any
amount due to him towards salary for performing illegal or
immoral activities of A.
Types

 Legal set-off
 Equitable set-off
O. 8, R.6 deals with legal set-off. Said provision is not
exhaustive and it does not take away power of the court to
allow such adjustment independent of this provision.
Conditions
 Suit must be for recovery of money;
 Sum of money must be ascertained;
 Such sum must be legally recoverable;
 Must be recoverable by the defendant or by all the
defendants, if more than one
 It must be recoverable by the defendant from all the
plaintiffs
 It must not exceed the pecuniary jurisdiction of the court
in which the suit is brought.
Legal Set-off and equitable set-off:
Distinction
 Legal set-off must be for an ascertained sum of money
while equitable may be even for an unascertained sum of
money.
 Legal set-off can be claimed as of right. Equitable cannot
be claimed as a matter of right and the court has
discretion to refuse it.
 In legal set-off, it is necessary that amount claimed as
set-off must be legally recoverable and must not be time-
barred.
 Counterclaim
Rules 6A – 6G
 A claim made by the defendant in a suit against the
plaintiff.
 It is a claim independent of, and separable from the
plaintiff’s claim.
 It is a cause of action in favour of the defendant against
the plaintiff.
 It may be set up only in respect of a claim for which the
defendant can file a separate suit.
 It is a cross-action.
Modes of setting up counterclaim
1. In the written statement files under O.8, R.1;
2. By amending written statement with the leave of the
court and setting up counterclaim;
3. In a subsequent pleading

It is the defendant who may file a counterclaim against the

plaintiff. But, a defendant may also claim relief against the
co-defendants in the suit.
Effect of counterclaim

Court can pronounce a final judgment both on original claim

and counterclaim.
Counterclaim of the defendant will be treated as a plaint
and the plaintiff has a right to file a written statement in
this respect.
 Set-off and Counterclaim:
Distinction
 Set-off is a statutory defence to a plaintiff’s action,
whereas counterclaim is a cross-action.
 Set-off must be for an ascertained sum or must arise out
of the same transaction, counterclaim need not arise out
of the same transaction.
 In case of set-off, amount must be recoverable at the
date of the suit, while in counterclaim amount must be
recoverable at the date of the written statement.
 Where defendant demands an amount below or up to the
suit claim, it is a set-off but when it is for a larger
amount, the claim for excess amount is a counterclaim.