754 WRITTEN STATEMENT, SET-OFF

conceived, be the day on which the Court goes into the case of the
parties
[ORDER VIL
purpose of trial. for the
Extension of time.-The tribunal closing right to file written
extending time as provided under Order VI, Rule 1Iof the Code is statement
petitioner is entitled to extension of time,20 not [Link]
Substitution of written statement, permissibility [Link]
is no
Code for cancelling or setting aside a written statement alrready filed, and provision in
it with fresh one,21
Right to file written [Link] party in a case has a right to e
written statement. This should be in accordance with natural justice 22
substiuting
Duty of defendant to 23|R. 1A. (1)Where the defendant
bases his
produce documents upon defence upon a documnent or relies
which relief is claimed or document in his possession or poWer, in upon anyof
relied upon by him support
his defence or claim for set off or counter claim. ha
shallenter such document in a list, and shall produce it in Court when
the written statement is presented by him and shall, at the same ti
deliver the document and a copy thereof, to be filed with the written
statement.
(2) Where any such document is not in the possession or power of
the defendant, he shall, wherever possible, state in whose possessionor
power it is.
Z(3) A document which ought to be produced in Court by the
defendant under this rule, but, is not so produced shall not, without
the leave of the Court, be received in evidence on his behalf at the
hearing of thesuit.]
(4) Nothing in this rule shall apply to documents
plaintiff's witnesses,
(a) produced for the cross-examination of the
or

(b) handed over to a witness merely to refresh his memory.]

AIR 1955 SC 425 : (1955) 2 SCR 1:192)

19. Sangram Singh v. Election [Link]. Chendraiah v. Tata Seetarammiah, AlR I901
MLJ(SC) 3 : 10 ELR 293: see also Chikkula
102 (DB).
20. Reshamlal v.P.K. Satnami, AIR 2011 Chhtis 74 (75). also U.R
D.G.A. Samaj Seva Sangh, AIR2009 Guj 155; see permissibility).
21. Thakorbhai H. Patel v. Shree in WS,
Veruprakkappa v. Sarvamangla, (2009) 2 SCC 177 (inconsistent pleadings
(w.ef1-1
22. Santibai v. Paras Finance Co., (2007) 10 SCC 82 (85). Act, 1999 (46 of 1999), s. 18(ü)
23. R. JA ins. by the Code of Civil Procedure (Amendment) 1-7-2002)vide
Noth.
2002) vide Notfn. S.0. 603(E), dt, 6-6-2002.
24. Subs. by Code of Civil Procedure (Amendment) Act, 2002 ((22 of 2002)([Link] statement underthis
S.O. 604(E), dt. 6-6-2002, S. 9(i) for the following : written hearingof
"(3) Where a document or a copy thereof is not filed with thethe defendant atthe
rule, it shall not be allowedto be received in evidence on behalf of
the suit,"
 IAJ DUTYOF DEFENDANT TO PRODUCE DOCUMENTS 755
RULE
I
MMENT-Codee of Civil Procedure (Amendment) Act, 2002 (22 of 2002)
CON
(%ef1-7-2002),

In Rule 1A [as inserted by clause (ii) of Section 18 of the Code of Civil

()
Procedure Amendment Act, 1999,] for sub-rule (3) the following sub-rule shall be
cubstituted, namelytriy
which
3) A document produced ought to be produced in Court by the defendant under
but, is not so shall not without the leave of the Court, be received
this rule, at the hearing of the suit".
evidence on his behalf
in
Scope.-The rule is new added by the Code of Civil Procedure (Amendment)
Act, 2002
and further amended by Code of Civil Procedure (Amendment) defendant
1999
Act,
A document which ought to be produced in Court by the Court, be
(22 of 2002). but, is not so producedshall not, without the leave of the
under this rule,
evidence on his behalf at the rule shall
hearing of the suit. Nothing in this plaintiff's
receivedin
to documents(a) producedfor the cross-examination of the
apply over a witness merelyto refresh his memory.
witness, or (b). handed
amendments of the provision have come into
Efective date (1-7-2002).The 604(E), dt. 6-6-2002.
force w.e.f. 1-7-2002 vide Notfn, S.0.
(46 of 1999) (w.e.f. 1-7
Code of Civil Procedure Amendment) Act, 1999
2002).
[Link] Rule is a new insertion.
produce the documents in his posse
1. Now a duty is. cast onthe defendant to with the written statement filed by
ssion in the, Court and file the same along are and those which are not in his
which
him. He must list out the,documents
possesslOP nOwer. the document or copy thereof with a written
2. In case the defendant does not file
statement it shall not be allowed to be received in
evidence on behalf of
defendant at the hearing of. the suit. However it will not apply to a document
witnesses or handed over to a
produced for cross-6-examination of the plaintiff's
witness merely to refresh his memory. Procedure
[Link] on Clauses of the Code of Civil
Notes on
(Amendment) Bill, 1999 stated thus:i
Clause 18
ivides for Written statement and set-off.
"Order VIl of the Code
to provide a fixed time-frame within which
seeks to substitute Rule 1 of Order VIII to
The new provisions required the defendant to present
pleadings are to be completed. from the date of service of summons on
him.
en Statement within thirty days upon
13 inserts Rule lA to:make it a dutv of defendant toproduce documents
defendant to
e him. the
Rule lA requiresdocument
or relied unon by
Droler is claimed deliver the or a copPy
produce documents in his possession in the Court andhim, Rule lA further requires in
thereof when the written statement is presented by
the written statement, itshall not be
case a with suit,"
document or copy thereof is not filed defendant at the hearing of the
allowed to be received in evidence on behalf of
[Clause 18,
No Procedure (Amendment) Act, 1999,
provisions of
Section retrospective effect.- Code of Civil stipulates that the
section)
322)0) (of the repeal and savings
 WRITTEN STATEMENT, SET-OFF
756
the First Schedule, as substituted
Rule 1and lA of Order VIII of 1999, shall
[ORDER VII
or
Section 18 of the Amendment Act,
Court
and presented before the1999.
immediately
not apply to a written
before the teinsert
ment
of
ed
commencement Section el8d
sta filby
of the Amendment Act,
Efective date (1-7-2002).--The amendments of the provision
6-6-2002 have
force w.e.f. 1-7-2002 vide Notfn. S.0. 603(E), dt. Come into
Applicability of the existing State/High Court Amendments
commencement of Code of Civil Procedure (Amendment)
Act, after the
amendment made, or any provision inserted in the principal Code by a
Legislature or High Court before the commencement of the Amendment
1999,Act,-A1999Stnyate
shall. except in so far as such amendment or provision is consistent with
provisions of the principal Code as amended by this Amendment Act,
repealed. [Section 32(1) Code of Civil Procedure (Amendment) Act, 199911999, stand
Admission of new documents.--The documents which were not filed in suit .
in execution proceedings cannot be relied upon in revision.25
The defendant can produce document at the time of hearing of the suit witk a
leave of the court. Rejection of application to produce documents because the
application is moved belatedly is improper.
New facts must be R. 2. The defendant must raise by his pleading
specially pleaded all matters which show the suit not to he
maintainable, or that the transaction is either void or voidable in
point of law, and all such grounds of defence as, if not raised, would
be likely to take the opposite party by surprise, or would raise issues
of fact not arising out of the plaint, as, for instance, fraud, limitation.
release, payment, performance, or facts showing illegality.
[Link] of the Rule.-Under this rule, it is the duty of the
defendant to give all the particulars in his defence, which he desires to take. If he
does not do so, he will not be allowed to raise a new plea depending upon evidence
28
for its determination, for the first time in
The provisions in Order VI Rule 8 and Order VII Rule 2 leave no doubt that a
party denying merely the factum of contract and not alleging its unenforceability
law, must be held bound by the pleadings. The party must be precluded from raisty
the legality or validity of the contract."29
This rule prescribes that the defendant must raise by his pleading all matters
which show the suit not to be maintainable or that the transaction is either void or
voidable on the point of law."

(2009)
25. Abdul Rehman Shora v. State of J&K,
(2009)) SCC 617; see also
2 Vidvabaiv. Padmalatha,
SCC 409.
26. Prashant Kumnar Goyalv. Sogra
27. K.V. Subba Rao v. The State Khatoon, AIR 2012 Sikkim 1.
28. 1970 SCD ofA.P., AIR 1967 AP 202.
[Link]
Z9. Kalyanpur L. W. Lid. v.
30. Union of Indiav. SurjitState
of Bihar, AIR 1954 SC 165
Singh Atwal. AIR 1979 SC 1701 (168): 1954 SCR Y30
(703): (1979) T SC
 NEW FACTS MUST BE SPECIALLY PLEADED 757
RULE
2)

there was no duty on the respondent to give details of facts which the
Where
had doto set at naught the electoral process, the High Court erred in
petitioner to
respondent's prayer [Link] and refusing to summon witness.
rejecting
required bythis rule that the defendant must raise by his pleading all matters
showthat the suit is not maintainable. Hence, the defendant will not be
which
as offright, torely on any ground of defence which he was not taken in his
entiled,
writenstatement 32 But when the necessary facts are there in the plaint, it is not
necessaryforthe defendant
33
to particularise them in his defence and to state the legal
thosefacts,
effèctof
Contract er facie [Link] a contract or transaction ex facie is illegal
there need| be
no pleading of the parties raising the issue of illegality. The Court is
boundto takeejudicial notice of it aand mould its relief according to the circumstances.
the contract is not ex facie legal, if the facts given in the evidence clearly
Even where the Court is bound to take notice of this fact even if not
disclose the illegality
defendant.34
pleadedbythe
Madhav Rao Scindia,'3
It has been held by the Supreme Court in Udhav Singh v.
words in Order VII, Rule 2 are all such grounds of defence as, if not
that the key words denote the
aised. would be likely to take the opposite party by surprise". These is required to be
broad test for determining whether a particular defence, plea or factraises issues of fact
incomorated in written statement. lf the plea or ground of defence"
to take the plaintiff by
not arising out of the plaint", such plea or ground is likely of defence arises
Surprise, and is therefore required to be pleaded. If the plea or ground otherwise apparent
an issue arising out of what is alleged or admitted in the plaint, or is plaintiff arises.
from the plaint, itself, no question of prejudice or surprise to the
Nothing in the rule compels the defendant to plead such a ground, not debars him from
when it does not depend on
setting it up at a later stage of the case, particularlyconstruction
evidence but raises a pure question of law turning on a of the plaint. Thus,
apparent on
plea of limitation that can be substantiated without any evidence and issuit"°
stage of the
the face of the plaint itself, may be allowed to be taken at any
the basis of sale deed in his
Where a suit for possession is filed by the plaintiff on the defendants, the said
lavour, seeking the possession of property from one of
detendant can raise all pleas ayailable to him todefeat the suit.
Order VIII Rule 2the appellant
n view of the provisions of Order VI Rule 8 and before the Supreme Court
De debarred from raising the point for the first timeallowed to raise the plea tor
ven before the High Court. The appellant cannot be
High Court ought not to have entertained t
time ofinthe
at the Ststage for aThe
Supreme Court.
the application certificate of fitness to be granted for leave of
appeal to the Supreme Court. 38

31. Sultan Saluddin Mohd. Osman Shaweed, AIR 1980 SC 1347 (1349) :(1980) 3 SCC 281.
32. Bhggat Singh v. Jaswant Singh, AIR 1966 SC 1861 :(1961) I Ker LR S539.
V.
33.
34. Lakshmi Narainv. [Link],
Surasaibalini Union AIR 1965
of India, AIRSC 1962 64 (D.B.).
1364Pat4(1370): (1965) 1SCR 861.
35. AIR 1976
SC
36. AIR
1976 SCv. 744:
31.38. Vidhyadhar 744 :(1977)
1 SC 511,
(197) 1AIR
Mankikrao, 1999
511, atSCHazaribagh,
p.1441
519. (1446)AIR
: (1999)3 SCC 573.
Nirod Baran Banerjeev. [Link] Commr., 1980 SC 1109(1111) :(1980) 3 SCC5.
758 t WRITTEN STATEMENT, SET-OFF
It is asettled legal proposition that an agent cannot be
known. In a case where the appellant had not taken plea sued
before
where the [ORDER VI
either
below, it was held that in view of the provision of:-Order VIII Rule
Procedure, the Appellant was under an obligation to take a
2 of
the principal is
Code of courCivtisl
the suit was not maintainable which it failed to do so. The specific plea to
that the suit was bad for non-joinder and thus was not vague plea to show that
the
amaintainable not meetextetnthe
did
requirement of law. The appellant ought to have taken plea in the
that it was merely an agent of the Central Government thus, the
not maintainable. More so, whether Ais an agent of Bis a questionsuit
writ en stateitment
be properly pleaded and proved by adducing evidence.
of
The appellant
againstand haswasto
fact
39
failed to take the required pleadings for the purpose.
Plea of estoppel.-A question of estoppel is a mixed question of law
miserably
and fact and
without definite allegations in the pleadings, a party should not be permitted
to the plea of estoppel. It has been held by the Supreme Court that a to resort
in
has set up a case of estoppel the written statement defendant
cannot be allowed who
case different to his case in the written statement.
41 to set up a
Issue of the fact.- -The question of intention is a question of fact. Thus
subsequent mortgage discharging a prior mortgage intended to retain hiswhether
rioh a
subrogation is a question of fact and must be raised in the pleadings. So also will
the question, whether a claim under Section 56 of the Transfer of Property Act b
purchaser of a portion of mortgaged property to have
42
the property not sold to him
proceeded against first will prejudicethe mortgage.
Denial to be specific 4R. 3. It shall not be sufficient for a 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.
AMENDMENT FOR COMMERCIAL DISPUTE OF A SPECIFIED VALUE
Amendment of First [Link] the First Schedule to the Code, in Order VIl, atter
Rule 3, the following Rule shall be inserted, namely:
3A. Denial by the defendant in suits before the CommercialDivision of the High Court or the
Commercial ourt.1) Denial shallbe in the manner provided insub-rules (2), (3), (4) and (5)of tnis
Rule.
(2) The defendant in his written statement shall state which of the allegations in
particulars of plaint he denies, which allegations he is unable toadmit or deny, but wnu
requires the plaintiff to prove, and which allegations he admits.
his reasons
he must state givenby
(3) Where the defendant denies an allegation of fact in a plaint, events
for doing so and if he intends to put forward a different version of from that
the plaintiff, he must state his own version.
SC.64
39. National Textile Corporation Ltd v. Nareshkumar Badrikumar Jagad and Ors, AlR 2012
40. Associated Publishers Madras Lid v. [Link] Alias Arya, AIR 1941 Mad 114. ALJ601.
41. Attar Singh v. The State of UP, AIR 19s9 SC S64:1959 Supp (1) SCR 928: 1959
42. Braham Prakash v. Manbir Singh, AIR 1963 SC 1607: (1964) 2 SCR 324. Commercial Courts,
2016)
43. See Amendment for Commercial Dispute of a Speçified Value vide the 2015(4 of
Commercial Division and Commercial Appellate Division of High Courts Act,
Section 16 and the Schedule (w.r.e.f. 23-10-2015).
 DENIAL TO BE SPECIFIC 759
RULE
3]

the defendant disputes the jurisdiction of the Court he must state the reasons for
(4)Ifandif he is able, give his own statement as to which Court ought to have
doings0,
jurisdiction.
defendant disputes the plaintiffs valuation of the suit, he must state his reasons for
(5)Ifthe iffhe is able, give his own statement of the value of the suit."
so,and
doing
COMMENT-Scope of the Rule.-A defendant can either admit or deny the
made in the plaint. If he decides to deny any such allegations he
severalallegations
mustdo so
clearly and explicitly. This rule lays down that a general denial of the
in the plaint shall not be sufficient. Each and every allegation of fact
grounds alleged
'specifically dealt with Rules 3, 4 and 5 form an integrated Code dealing
must be mannerin which allegations of fact, in the plaint should be traversed and the
with the 44
consequences flowing from its non-compliance.
legal with
According tothe law of pleadings,the defendant is boundto deal specifically
offact, the truth of which is not admitted. If certain para in the plaint
cachallegationadmitted but the facts therein are not specifically dealt with, it cannot
is merely not
caidthat they are denied. Where the truth of the facts alleged in the plaint, though
dealt with in the corresponding para of the written statement, were
not specifically additional pleadings, the allegations in the plaint must be considered
dealt with in the 45
traversed.
to have been
Aplaintiff cannot complain if general allegations made by him in the plaint are
answered by equally general allegations in the written statement. Thus, where the
nlaint alleged that the order of removal of the plaintiff from service was in violation
of Articles 14 and 16 of the Constitution of India inasmuch as the plaintiff was
arbitrarily picked up and sacked and the defendant denied that the order of removal
was in violation of Articles 14 and 16, the denial is a sufficient denial. In the absence
of particulars in the plaint all that the defendant could do would be simply to deny
that there had been discrimination. 46
In a case no contention was raised by the plaintiff in trial Court that allegations
were not traversed in written statement nor objection taken to framing of issues on
the matter. The plaintiff could not be allowed to contend in appeal for first time that
part of his claim must be deemed to have been admitted because it was not traversed
in the written statement.!
Aparty has to plead his case and adduce sufficient evidence to substantiate his
submissions. In case of incomplete pleadings, the court is under no obligation to
entertain the same. It was held, in the absence of any specific pleading as to what
document had not been supplied to plaintiff/respondent/delinquent which was relied
upon by inquiry officer, or which witness was not permitted to be cross-examined by
alm, finding of trial court that departmental inquiry initiated against, plaintift
Tespondent was in violation of natural justice is erroneous since the same was based
merely on allegations in plaint which the defendant/ appellant corporation had failed
to rebut 48

44. Badat &

45. Sheikh Co. v. East India Trading Co., AIR 1964 SC 538 (544): (1964) 43SCR 19: 66 Bom LR 402.
Abdul Sattar
46. Union offIndia v. v. Union of India, AIR 1970 SC 479 (482): (1970) SCC 845.
47. Shipping Corpn. ofPandurang AIR 1962 SC 630: (1961) 2LLJ 427. 1SCC 564.
India v. Nissar Export Corpn., AIR 1981 SC 1212 (1214): (1981)
Kashinath More,
48.
Rajasthan SXTC V. Bajrang Lal, (2014) 4SCC 6 9 3 . s
760 WRITTEN STATEMENT, SET-OFF

Evasive denial R. 4. Where adefendant denies

[ORDER VII
an
fact in the plaint, he must not do so
allegation
of
answer the point of substance. Thus, if it is alleged that he but evasively,
certain sum of money, it shall not be sufficient to
deny
received that particular amount, but he must deny that he that he
a received
that sum or any part thereof, or else set out how much he received
And if an allegation is made with diverse
sufficient to deny it along with those circumstances.
circumstances,
it shall received.
not be
COMMENT.-Where the plaintiffs had precisely and definitely given nartint.
of correspondence that passed between the parties and the defendants did
specifically deny the passing of the correspondence, it was held by the not
Court that their denial
concerned,49
was vague and evasive so far as the Supremewas
correspondence
Specific denial R.5.'I(1)] Every allegation of fact in the plaint.
if not denied specifically or by necessary implica
tion, or stated to be not admitted in the pleading of the defendant.
shall be taken to be admitted except as against a person under
disability:
5lProvided that the Court may in its discretion require any fact so
admitted to be proved otherwise than by such admission.
S2) Where the defendant has not filed a pleading, it shall be
lawful for the Court to pronounce judgment on the basis of the facts
contained in the plaint, except as against a person under a disability,
but the Court may, in its discretion require any such fact to be
proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or
under sub-rule (2), the Court shall have due regard to the Tac
whether the defendant could have, or has, engaged a pleader.
under this rule,and#
(4) Whenever a judgment is pronounced judgment
decree shall be drawn up in accordance with such judgment was
such decree shall bear the date on which the
pronounced.]
104of
49. AIR 1964 SC 538:(1964) 4SCR 19: 66 Bom LR 402. (Amendment)Act
50. Rule 5 renumbered as sub-rule (1) of that rule by Code of Civil Procedui Courts,
Commercial 2016)
1976, S. 58, ([Link]! 1-2-1977). the of
S1. See Amendment for Commercial Dispute of a Specified Value vide Courts Act,
2015 (4
Commercial Division and Commercial Appellate Division of High
1-2-1977).
52. Section 16 andofthe
Ins. by Code Schedule
Civil (w.r.e.f.
Procedure 23-10-2015).
(Amendment) Act 104 of 1976. S. 58, (w.e.f.
 SPECIFIC DENIAL 761
RULE
5]
AMENDMENTFOR COMMERCIAL DISPUTE OF ASPECIFIED VALUE
Amendment of First [Link] the First Schedule to the Code, in Order VIII, in
(1), after the first proviso, the following proviso shall be inserted,
in sub-rule
Rule5,
namely:
"Providedfurther that every allegation of fact in the plaint, if not denied in the manner
providedunder rule 3A of this Order, shall be taken to be admitted except as against a person
underdisability.":
COMMENT.-It is provided by this rule that an allegation in the plaint will be
the defendant unless in the written statement, it is denied
deemed to be admitted by
specifically or by necessary implication and secondly it is stated that it is not
admitted. The object of the rule is to narrow the issues to be tried in the case and to
enable either partyto know what real point is to be discussed and decided.

This rule applies to election petitions and so any allegation in the election petition
about a petitioner
incident in a police station must be specifically denied in the
written statenent.J
It has been held by the Supreme Court that the word 'specifically' qualifies not
w 'dernied' but also the words 'stated to be not admitted' and, therefore,
onlythe'word
specifically stated 54
arefusal toadmit must also be
In a writ petition challenging the order black listing a private contractor, it was
pleaded that
stated by the petitioner that the order was not received. The Government non
be construed as
the order was communicated. 1t was held that this cannot
55
traverse.
The plaintiff cannot complain if general allegations made by him in the plaint are
answered, by equally general allegations in the written statement." A replication is
part of pleading, and allegation made in it for the first time has to be specifically
controverted, otherwise it will be deemed to be accepted.
The provision under Rule (1) has application only where the written statement
does not contain aspecific or implicit denial of the averments in the plaint.>
A plea that the defendant does not admit any of the allegations in the
plaint except such as have been expressly admitted and that he puts the plaintiff to
the proof of allegations not admitted is not a sufficient denial within the meaning
Of thisirule : Thus every allegation so denied will be deemed to have been
admitted. 59
The pleadings in eviction petition must be strictly construed."
S3. Ram Singh v. Col Ram Singh. AIR 1986 SC 30 (48).
Bdaur v. Debi Singh. AIR 1966 SC 292: see also AIR 1964 SC 538 : (1964) 4 SCR 19:66
Bom LR 402.
55. Patna Regional Development Authority v. Rashiriya Pariyojana Nirman Nigam, AIR 1996 SC
2074: (1996)4 SCC 529.
56. AIR 1962
57. SC 630: (1962)1 LLJ 427:: (1961) 3 FLR 323.
58. Salig
ModulaRamIndia
v. Shiv Shankar, AIR
v. Kamakshya Singh . Deo,PunjAIR437.1989 SC 162 (176):(1988) 4SCC 619.
1971
59. P.P.
Abubacker
60. Sushil v.. The Union1 of India, AIR 1972 Ker 103.
Kumar v. Rakesh Kumar, AIR 2004 SC 230.0
762 WRITTEN STATEMENT,SET-OFF

Vesting discretion.-The rule that in divorce cases a Court

decide on the admission of parties, is a rule of prudence and not a
[ORDERVN
usualy does no,
law. Where there is no room for collusion there is no reason why
parties should not be treated as evidence just as in other cases. Section
readmiquirsement
of
of ions
Evidence Act and Order VIll Rule 5 of Code of Civil Procedure vest 58 of
Court to require any fact so admitted to be proved otherwise discretion in the
admission."
61 than by such
Adenial of knowledge of a particular fact is not a denial of the fact and has
the effect of putting the fact in issue. It merely means that the defendant
denieshthat
he has any knowledge of the fact and a man can admit afact of which he
personal knowledge.
In the absence of specific denial it could not be held in appeal that Nepali
uterine brothers and their mother could not form joint family. Hindu
It is clear from the wording of the rule that it is not intended to apply to a raes
where the defendant has not put in a written statement. The defendant cannot be soit
to have admitted the plaint allegation in such a case,o4
There existed a doubt in judicial opinion as to whether this rule applied in acase
where the defendant had not filed a pleading at all. By inserting new sub-rule (2) to
Rule 5 a discretion has now been conferred upon the Court in such cases to treat the
allegation in the plaint as admitted and to pronounce judgment on the basis of such
allegations. o
Denial of averments in plaint, [Link] the defendant does not deny the
averments in the plaint, the same would be deemed to have been admitted under Rule
5of Order VIll of the Code. 65
Effect of non-rebuttal of [Link] decision does not became applicable
merely because the opposite party has not rebutted [Link]
Sub-rules (3) and (4) were added by the Amending Act of 1976.
of
Particulars of set-off R. 6. (1) Where in a suit for the recovery
tostatement
be given in writen monev the defendant claims to set-ofi aganst u
plaintifis demand anv ascertained sum of money
legally recoverable by him from the plaintiff, not exceeding
pecuniary limits of thejurisdiction of the Court, and both parties
defendant
suit, the
the same character as they fill in the plaintiffs afterwards unlless
may, at the first hearing of the suit, but not containingthe
permitted by the Court, present a written statement
particulars of the debt sought to beset-off. [OR, P, MYI
267:60
SCR
(1964)7
61. Mahendra M. Nanavati v, Sushila M. Nanavati, AIR 1965, SC 364 (371) : 19s

Bom LR 681 : 1965 Mah LJ 365. Law Rep

11
62. Jahuri Sah v. Dwarika Prashad, AIR 1967 SC 109: 1966 Supp SCR 280:
63. Tek Bahadur v. Debi Singh, AIR 1966 SC 292 (294).uN
64. Siai Sinha v. Shivadart Sinha, AIR 1972 Pat 81. SC 172.
65. Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (554).::AIR 2009
66. Food Corporation of India v. Pale Ram, (2008) 14 SCC 32 (49).
 PARTICULARS OF SET-OFF TO BE GIVEN 763
RULE
6]
(2) The written statement shall have the same
Etèctofset-ofr"
effect as aplaint in a cross-suit so as to enable the
final judgment in respect both of the original
pronounce a
Courtto set-off: but this shall not affect the lien, upon the
and ofthe
claim
amountdecreed, of any pleader in respect of the costs payable to him
underthedecree.

rules relating to a written statement by a

(3)Thestatementin answer to a claim of
defendant apply to
set-of.
a written
ILLUSTRATIONS
bequeaths Rs. 2,000 to Band appoints C his executor and residuary legatee. Bdies
(a) A
out administration to B's effects. Cpays Rs. 1,000 as surety for D; then Dsues C
and Dtakes set-offthe debt of Rs. 1,000 against the legacy, for neither Cnor D
Ccannot
for [Link]
same with respect to the legacy as they fill with respect to the payment of
fillsthe
theRs. 1,000.
in debt to B. Ctakes out administration to A's effects and B buys
dies intestate and
part(b)of A
the' effects from C: In asuit forthe purchase-money by Cagainst Bthe latter cannot
set-offthe debt against the price, for Cfills two different characters, one as the vendor to Bin
to 4,
which he sues B and the other as representative
Adsues Bon a bill of exchange. B alleges that Ahas wrongfully neglected to insure B's
goods and isliable to him in compensation which he claims to set-off. The amount not being
H
ascertained cannot be set-off.
(À Asues Bon a bill of exchange for Rs. 500. B holds ajudgment against Afor Rs. 1,000.
The tvo claims being both definite pecuniary demands may be set-off.
(e) Asues B_for compensation on acçount of trespass. B holds a promissory note for Rs.
L.000 fromA and claims to set-off that amount against any sum that A may recover in the suit.
Bmay do so, for, as soon as Arecovers, both sums are definite pecuniary demands.
)A and Bsue Cfor Rs. 1,[Link] set-off adebt due to himby Aalone.
(g)A sues Band Cfor Rs. 1,000. Bcannot set-off adebt due to him alone by A.
(h) Aowes the partnership firm of B andC Rs. 1,000. Bdies, leaving Csurviving. Asues C
lor adebt of Rs. I,500 due in his separate character. Cmay set-off the deht of Rs. 1,000.
(Sub-rule (/) amended in Karnataka, Orissa &Pat.]
HIGH COURT AMENDMENTS
Karnataka.-Same as in Patna substituting "Rules 14 to 18 of Order VIl of this Code" for
"Order VI!, rules 14 to 18".
(30-3-1967).
[Link]. (14-5-1984).
Patna,-To rule 6(1) add the words:
e provisions of Order VI| rules 14 to i18 shall., mutatis mutandis, apply to a
defendant claiming set-off as if he were a plaintiff." (30-3-1967).
crediCOMMENT- S et-of .-
tion of -The doctrine of set-off may be defined as "The extinc-
ts debtswhich they
of
of
which two
are
persons are reciprocally debtors to one another, by the
creditors to one another". In other words, it is a reciprocal
aCquit al of debts
between two persois.
764
WRITTEN STATEMENT, SET-OFF
Under Rule 6, if ina suit for the recovery of money, the
ascertained sum of money
[ORDER VI I
defendant claims to set-off,
against the plaintiff's demand, any legally
him from the plaintiff not exceeding the
fill the same
pecuniary limits of the
character as they fillfill in the
recoverable by
jurisdiction
off
sthe
and both the parties
defendant may, at the first hearing of the suit, but for
for afterwards, plaintiff': suit, theCourt
the Court, present a written statement
containing the
the particulars of the debt
unless, permit edby
set-off. sought to he
effect as a plaint in a cross
Such a written statement has the same suit, SO as
enable the Court to pronounce a final
final judgment in respect of both of tO
the
statementoriginal
relating a written
claim and the set-off. Furthermore, all the rules relating to set-off by a
defendant apply to a written statement filed in answer to a claim of
Under Order VIII Rule 6 of the Code of Civil Procedure
Procedure, certain conditions
precedent are to be satisfied for application of the said rule. Two primary condite
amount sought to he
are that it must be a suit for recovery of money and the are
must be a certain sum. Apart from the aforesaid parameters there
this rule.
parameters to sustain a plea of set off under
under
Conditions for set-off.-In order to entitle a defendant to claim a set-off
which must be satisfied:
this rule, there are some conditions
money. For example, a suit on a
(1) The suit must be one for recovery of
negotiable instrument.
sum of money (See statutory illustrations
(2) The amount must be an ascertained
(c), (d) and (e) above.)
recoverable.
(3) Such sum must be legally
recoverable by the defendant or by all the defendants, if more than
(4) It must be
one (See statutory illustration (g) above).
recoverable by the defendant from the plaintiff or all the plainttts,
(5) Itmust be ()).
if more than one (See statutory illustration the Courtinof
(6) It must not exceed the pepecuniary limits of the jurisdiction
which the suit is brought. same
characteras
the
(7) Both parties must fill in the
defendant's clain to set-off and(h) above).
(a), (b)
illustrations as distinguished from
they fill in the plaintiff's suit. (See statutory
may be pointed out here that this rule deals with legal
It agaias,
equitable set-off. set-of.,
himages
in
defendant to
 PARTICULARSOF SET-OFF TOBE GIVEN 765
RULE
6]
questioninthe companion suit, if no appeal has been preferred against the
same pleaofequitable set off has been raised in the written statement in the
Ino 67
and
decree suit.
companion
Equitableset-offis different from legal set-off. It is independent of the provisions
Civil Procedure. The plea of equitable set-off is raised not as a matter
Codeof
ofthe Itisthediscretion of the court to entertain and allow such a plea or not. The
right.
of discretion hasto be exercised in an equitable manner. The concept of equitable
said founded on the fundamental principles of equity, justice and good
set-ofris
Equitable setoff exists
conscience.E not only in cases of mutual debits and credits, but
croSs
demands arise out of the same transaction, The mutual debits and
where
also or cross demands must have arisen out of the same transaction or to be
credits
nature and circumstances. An equitable set-off is not to be allowed
connectedin the
protracted enquiryis needed for the determination of the sum due.3
where
is the
Diference between payment, adjustment and set-off.-A payment
satisfaction or extinguishment of a debt prior to thé written statement. Where there
demands between the same parties in the same capacity, one of them may
are mutual circumstances, adjust the amount due by him to the other towards
under certain
amounts due by the other to him and sue for the balance. It is the act of the party
statement.
himselfprior tothe written
Where no such adjustment has been made by the parties, but in a suit by one of
chem for recovery of amounts due to him the other party asks the Court in the written
statement to adjust the amount due 69to him towards the claim made against him, the
rule.
plea is one of set-off under this
Aplea of equitable set-off will not be available where it relates to a different
70
transaction.
Difference between set-off and Counter-claim,-A set-off is a statutory defence
to aplaintiff's action, whereas a counter-claim is substantially a cross-action. In a
suit for recovery of possession the defendant can set up a counter-claim for specific
performance of an agreement to sell. Though there is no provision in the Code for
making a counter-claim, a Court has got the power to treat the counter claim as the
plaint in a cross suit and hear the two together if the counter claim is properly
Stamped. But a counter-claim may be set up only in respect of claims as to which the
counter-claim is brought,"
In a suit for recovery of certain amount on the basis of khata, the defendant by his
0dtonal writen statement put forward a counter claim. It was for accounting
arnsing out of transactions between him and the plaintiffs on the basis of an agree
ment. The written statement could be treated as a cross claim. 72

61.
69. Subramanyam
68. Jitendra v. Thayappa. AIR 1966SC 1034 (1036): (1961) 3SCR 663: 39 Mys LJ 356.
Kumar Khan v. Peerless General Finance and lnvestment Co. Lid, (2013) 8SCC 769.
Jadunandan Mandal v. Hital Mandal, AlIR 1969 Ori 171; see also Govt. of United of States of T.C. v.
10, Dunk of Cochin Ltd. AIR 1954 Tra&Co 24 (FB).
1. Bhupendra Narain Singh v. Bahadur Singh, AIR 1952 SC 201:1952 SCR 782,
UtMohihanndedarrama
Pillai v. M.
12. Jaggi v. Data Ram Jagannath,Arumugha Pillai, AIR 1971 Mad. 215(DB); see also Mohinder Singh
AIR 1972 SC 1048:(1972) 4SCC 495.
Singh Jaggi v. Data Ram Jagannath, AIR 1972 SC 1048(1052) : (1972) 4SCC 495.
 766 WRITTEN STATEMENT, SET-OFF
Decree in favour of defendant when permissible.,
defendant is permissible of defendant either when the -Decree
[O
in
RDER VII
makes a counter claim as per the provisions of Order VII| 23 pleads favour orof
defendant
Counter-claim by R. 6A. (1) Adefendant in a set-of
defendant tion to his right of pleading a suit may, in
set up, by way of counter-claim against the claim of
set-off addi-under rule 6,
right or claim in respect of a cause of action the plaintiff, any
has delivered his defence or before the time accruing to the
ivdeferienndantg ofhis
limited
defence has expired, whether such counter-claim is infor
claim for damages or not: , oati ieeodt delnature
the a
Provided that such counter-claim shall not
exceed the
limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same
pecuniary
effect as a
as to
enable the Court to pronounce afinal judgment in croSS-Suit so
the
both on the original claim and'on the counter-claim. same suit,
(3) The plaintiff shall be at liberty to
answer to the counter-claim of the defendantfile a written statement in
within such period ge
may be fixed by the Court.
(4) The counter-claim shall be
treated as a plaint and governed by
the rules applicable to plaints.
COMMENT. Right to file a counter claim ünder this rule is referable to the
date of accrual of the cause of action. An application under this rule is not ex facie
barred after filing written statement.g
75

Before the Rules 6A to 6G regarding counter

Amendment Act, it was held by the Supreme Court thatclaimthere
were inserted by 1976
precludes a Court from treating a counter-claim as a plaint in isa nothing in law which
The crucial date for determining when the plaint in a
cross-suit.
as having been filed, is not the date when the cross-suit should be treated
which the written statement, containing the conversion is ordered but the date on
counter-claim, filed.'
Ina suit for injunction, a counter claim for
is
be entertained under this rule 7 possession by the defendant also Cal
Counter-claim
found to be not allowed.-In
asuit for recovery of
entitled to claimn any amount. A money the appellan
by respondent, which was allowed by an order of Special counter-claim
Court. The viewWadsexpressed
by the Special Court did not call for
court 78 any interference in the opinion of
73. SBI v. National
74. Ins. by Code of Housing Bank, AIR 2013 SC 3478. l
75. Shanti Rani Das Civil Procedure
(Amendment) Act 1044of 1976, S. 58, ([Link] 1-2-1977).
76. Lakshmidas v. Dewanjee v. Dinesh Chandra Day, AIR 1997 SC 3985: (1997) 8SCC 174.
Nangbhai,
77. Gurbachan Singh v.
AIR 1964 SC 11(17, 18):(1964) 2
SCR S6/.
78. Naresh Kr. AggarwalaBhag Singh,
v. CanbankAIR1996 SC 1087 :(1996) 1 SCC770.
Financial Services Ltd., ÁIR 2010 SC 2722.
 COUNTER-CLAIM TO BE STATED 767
RULE6B]
discretion.- Relief under Order VIII, Rule 6A is discretionary
Exercise of
discretion is to be exercised in judicious manner."hets
but
remedy Statement,
amendment [Link] asuit for dissolution of firm counter-
Writtenlimited damages caused to the
to defendant till filing of written statement.
claim was atnendment of written statement and enhancement of counter-claim
After13years
court held that the claim was barred by limitation.
sought. The
were ammendnent of.-In dealing with a prayer for amendment the courts
Pleadings, substance
prefer. to form and techniques and the interest of justice is one of
normally important considerations. If a party is entitled to amend its pleadings, the
the most party to amend cannot be defeated just because a wrong section or a
rightof the
provision has been quoted inthe amendment petition."
Wrong of
counter-claim is required to be treated as an independent suit in view
The VIIII, Rule 6A of the Code. 82
provisions of Order
of action for the counter-claim had arisen before filing of the
Where the cause barred 83
statement, the counter-claim is not
written
the counter-claim when the factum of issuance of notice terminating the
In
has been pleaded so also its valid service of notice, the same has gone totally
tenancy to the same and
uncontroverted. The plaintiff has not filed any written statement not
non-traverse very well comes into operation. So it was
therefore, the rule of be deemed to
for the deefendant to further prove those facts which have to Code of Civil
required of Order VII Rule 5 of the
bave been admitted as per the provision
Procedure. 846
way of counter claim in respect of any
The defendant can claimany property by though it is independent of the cause of
cause of action that has accrued to him even
same cause of action can be adjudicated
action averred by the plaintiff and the
suit, so as toavoid85multiplicity of
without relegating the defendant to file a separate
between the same parties.
proceedings, especially when the dispute is
counter-claim after two-and-a-half years
In the instant case the defendants filed respondent's evidence was still being
/
after framing of the issues. The plaintiff's
counter-claim was made. No material showing
recorded by the trial court when the plaintiff was produced showing that any
that any prejudice would be caused to the
be caused to the respondent/ plaintiff if the counter-claim was to be
prejudice would no serious injustice or irreparable
along with the main suit. Also,
aajudicated upon, plaintiff. Hence, order of the High Court
loS$ would be suffered by the respondent/
counter-claim was set aside.
declining theappellant/defendantto file
seeksto rely upon
Counter-claim to be R. 6B. Where any defendant counter-claim,
stated supporting a right of
any ground as
79. Ballepanda P. Poonacha v. K.M. Madapa, (2008) 13 SCC 179 (183-85).
1177(1181),
80. Naik, AIR 2009 SC
81, South v. Prabhakar Gajanan. Services Ltd, AIR 2010 SC 3371 (3374).
[Link] Dstilleries
Global Engineering V. Stayam Computer 330(339).
Gowramma, (2011) 2SCC 3 SCC 265.
[Link] Women Welfare Association v. (1399):(1987)
MahendrViga v. Shiv Prakash Mundra, AIR 2015 Orissa 161.
84. Rajesh Kumar v. State of M.P., AIR 1987 SC1395
85. K. Rajasekaran v. M. Rajeshwari, AIR 2014 Mad 178.
Vijay Prakash SC 1304.
Jarath V. Tej Prakash Jarath, AIR 2016
768 WRITTEN STATEMENT, SET-OFF
he shall, in his written statement, state
specifically that [ORDER VII
he
way of counter-claim. does so by
Exclusion of counter
R. 6C,
Where a defendant sets
claim and the plaintiff contends that up a
claim
thereby raised ought not to be disposed of by way of the claimcounter.
but in an independent suit, the plaintiff may, at any time
are settled in relation to the counter-claim, apply to the countbeforeer-claim
issues
order that such counter-claim may be excluded and the Court for an
the hearing of such application, make such order as it thinks Courtfit may, on
COMMENT.-In a suit for injunction, counter-claim for in respect of
or a different property is maintainable. The cause of action from which the the same
claim arises need not necessarily arise from or have any nexus with the Counter-
action of the plaintiff. 87 cause of
Effect of disconti R. 6D. If in any case in which the defendant sete
nuance of suit
up a counter-claim, the suit of the plaintiff is
staved, discontinued or dismissed, the counter-claim may nevertheless
be proceeded with.
Default by plaintiff of R. 6E.f the plaintiff makes default in putting in
reply to counter-claim
reply to the counter-claimn made by the
defendant, the Court may pronounce judgment against the plaintiff in
relation to the counter-claim made against him, or make such order in
relation to the counter-claim as it thinks fit.
Relief to defendant R. 6F. Where in any suit a set-off or counter
where
succeeds
counter-claim claim is established as a defence against the plain
tiff's claim, and any balance is found due to the
plaintiff or the defendant, as the case may be, the Court my give
judgment tothe party entitled to such balance.
Rules relating to R. 6G. The rules relating to a written statement
written statement to apply by a defendant shall apply to a written statement
filed in answer to a counter-claim.]
COMMENT-Rules 6-A to 6-G were added by the Amendment Act of 1976.
with a view to make detailed provisions regarding the counter-claims.
Distinction between Set-off and Counter-Claim.
the same
1. Set-off must be for an ascertained sum, or it must arise ouut of out ofthe
transaction as the plaintiff's claim, whereas a counter-claim needs not arise
same transaction.

SCC 699;seeals0
87. Jag Mohan Chawla v. Dera Radha Swami Satsang, AIR 1996 SC 2222 : (1996) 4
Mahendra Kumar v. State of M.P., AIR 1987 SC 1395:(1987)3SCC 265.
 NEW GROUND OF DEFENCE 769
RULE
8]

Set-offis a good ground of defence and it should be pleaded in the written

2.
statement,
whereas counter-claim does not afford any defence to the plaintiff's claim.

case
of'set-off, the plaintiff,in order to establish his plea, must prove that the
[Link] barred when the plaintiff commenced his action. It is not enough to prove
sel-offwas
barred the time when it
at was pleaded. In case of counter-claim, it is
it was
that for the nlaintiff to prove that the counter-claim was barred when it was
enough
pleaded.
Defence or set-off R. 7. Where the defendant relies upon several
founded upon
separate distinct grounds of defence or set-off or counter-
grounds claim] founded upon separate and distinct facts,
be stated, as far as may be, separately and distinctly.
theyshall
HIGH COURT AMENDMENTS
Karnataka.-Add the following as rule 7A:
w7AWhere the defendant seeks the permission of the Court under Rule 8 of Order I
CRCade to defend the suit on behalf of or for the benefit of himself and other persons
bouino the same interest as the defendant in the subject-matter of the suit he shall file an
anplication supported by an atfidavit setting out the particulars detailed in sub-rule (2) of
Pule 4 of Order VI of this Code. Notice of such an application shall be given to all
narties to the suit, and if the permission sought is granted the plaint may be amended by
inserting a statement that the defendant is with leave of the Court sued as the
representative of all persons interested in subject-matter of the suit." (30-3-1967).

New ground of R. 8. Any ground of defence which has arisen

defence after the institution of the suit or the presentation
of a written statement claiming a set-off "or counter-claiml may be
raised by the defendant or plaintiff, as the case may be, in his written
statement.
Duty of defendant to OR. 8A. (1) Where a defendant bases his
produce documents upon
which relief is claimed by defence upon a document in his possession or
him
power, he shall produce it in Court when the
Written statement is presented by him and shall, at the same time,

o0 s, by Code of Civil Procedure (Amendment) Act 104 of 1976, s. 58, (w.e.J. I-2-197).
onS, by Code of Civil Procedure (Amendment)Act 104 of 1976, s. 58, (w.e.f. 1-2-1977).
oA omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 under: of 1999) (not yet
OCea) vide Notfn. S.O. 6030E), dt. 6-6-2002, before omission the rule stood as
Yefemy of defendant to produce documents uponpossession which relief is claimed by him.1) Where
oases his defence upon a document in his or power, he shall produce it in
Cour at the same time, deliver the
doeu ne written statement is presented by him and shall,
document
or a thereof, to be filed with the written statement.
(2) A copy which ought to be produced in Court by the defendant under this rule, but is not
document
hearing ofta not, without the leave of the
Court, be received in evidence on his behalf at
the
the suit.
(3) Nothing in this rule shall apply to documents produced:
(a) for the cross-examination of the plaintiff's witnesses, or
plaint, or
(b) in answer
any set up by the plaintiff subsequent to the filing of the
(c) handed over toa witness merely to refresh his memory."
770 WRITTEN STATEMENT, SET-OFF
deliver the document or a copy thereof, too be filed with {ORDER VI
statement. the written
(2) A document which ought to be produced in
defendant under this rule, but is not so produced, shallCourt by the
not, without
the leave of the Court, be received in evidence on his behalf
hearing of the suit.] at the
i cOMMENT. Code of Civil Procedure (Amendment) Act, 1999
(notyet enforced), (46 of 1999)
Modification,-This Rule has been omitted.
Rule 8A of Order VIIIhas been omitted by the Amendment Act, 1999.
Notes on Clauses.-Notes on clauses of the Code of Civil
(Amendment) Bill, 1999 stated thus: Procedure
"Order VIll of the Code provides for written statement and set-off. Clause 10
seeks to substitute rule l of Order VIll to proviIde a fixed time frame within
which pleadings are to be completed. The new provisions require the defendant to
present a written statement within thirty days from the date. of service of summonsom
him. Clause 18 inserts rule 1A which provides a duty of defendant to prodnea
documents upon which relief is claimed or relied upon by him. Rule 1A requires the
defendant to produce documents in his possession in the Court. and deliver the
document or a copy thereof when the written statement is presented by him. Rule 1A
further requires in case a document or copy thereof is not filed with the written
statement, it shall not be allowed to be received in evidence on behalf of the
defendant at the hearing of the suit." [CIlause 18]
No retrospective effect.-Code of Civil Procedure (Amendment) Act, 199,
Section 32(2)(1) (of the repeal and savings section) stipulates that the provisions of
rules 1and lA of Order VIlI of the First Schedule, as substituted or inserted by
Section 18 of the Amendment Act, 1999,shall not apply to a written statement filed
and presented before the Court immediately before the commencement of Section 18
of the Amendnent Act, 1999,
Efective date.-The amendments of the provision have not come into force Viae
Notfn. S.O. 603(E), dt. 6-6-2002. Amendments shall come into force as and Wau
notified by the Central Government in Official Gazette.
Amendments
Important Note.-Comments, Case Law and State/High Court the Code of
hereinafter should be read keeping In view the amendments made by
Civil Procedure (Amendment) Act, 1999 (w.e.f. 1-7-2002).
Comments onthe Amendment Act, 1999, inserted by the
Production of documents on which defence based.-Rule 8A which hebased
Amendment Act, 1976 required the defendant to file documents on requiredto file
his' defence together with written statement as the plaintiff was Rule 14(as
documents on which he sued with the plaint under Order evidence VII, insupport
distinguished from documents on which the defendant relied as 1).The
of his defence for which provision has been made in Order VII, Rue