DRAFTING, PLEADING & CONVEYANCING

Module I

WRITTEN STATEMENT

Dr. Saltanat Sherwani

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WRITTEN STATEMENT

Order VIII Civil Procedure Code 1908 deals with rules relating to written statement. The term
written statement has not been defined in the Code. However, it means the pleadings of the
defendant wherein defendant deals with the facts alleged in the plaint. In it, he also pleads new
facts and set up counter claim and set-off. All the general rules of pleading mentioned in Order VI
apply to written statement.

Who may file written statement?

Written statement is filed by the defendant or his duly authorized agent. If there are several
defendants a common written statement can be filed by them. In such case it must be signed by
all of them. As far as verification is concerned, it can be verified by any one defendant.
 ORDER VIII WITH RULES ON WRITTEN STATEMENT

Under Order VIII, the rules contain the provision regarding the manner and the format in which a
statement must be written and provided for other requirement as to its production. In this
regard:

Rule 1. Written Statement.—The Defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defence.

Time limit for filing written statement:

Order VIII Rule 1 provides that the defendant shall within 30 days from date of service of
summons file a written statement.

Proviso I to Rule 1 Order VIII states that if the defendant fails to file written statement within
a period of 30 days from date of service of summons , 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 not be later than ninety days from the date of service of summons.
Can the time be extended beyond 90 days? Whether this period is directory or
mandatory?

In Salem Advocate Bar Association v. Union of India, AIR 2005 SC, the court harmoniously
constringed Order VIII Rule 9, 10 & 11 said that there can be discretion of the court to allow the
defendant to file written statement even after expiry of 90 days and there is no restriction in Order VIII
that after expiry of 90 days, further time cannot be extended or granted. In this case, the Supreme Court
held that court is empowered under Order VIII Rule 10 to allow the defendant to file the written statement
even after the expiry of 90 days. Such power can only be used in exceptional circumstances and routine
order cannot be passed.

Proviso II to Rule 1 Order VIII - According to it in a suit of commercial dispute of specific value if the
defendant fails to file a written statement within 30 days from the date of service of summons he shall be
allowed to file the written statement within the outer limits of 120 days from the date of service of
summons.

If even then the defendant fails to file the written statement then the defendant shall forfeit the right to
file written statement and the court shall not allow the written statement to be taken on record. A
consequential amendment has also been made in Order VIII Rule 10 wherein it is stated that no court
shall make an order to extend the time provided under Rule 1 for filing the written statement.
Rule 1A: Duty of defendant to produce documents upon which relief is claimed or relied
upon by him.

Rule 1A states that along with the written statement the defendant must produce the documents
upon which he relies for his defence, if the documents are in his power or possession, and must
exhibit it in the file by providing the list of such documents specifically.

If the defendants fails to exhibits such documents along with a written statement, he will be
restrained from producing it as an evidence in his defence unless the court permits.

This rule does not apply to documents produced and handed for:

i. Cross examination of plaintiff’s witnesses, or

ii. Refreshing the memory of witnesses, respectively.

Rule 2: New facts must be specifically pleaded-

It is a general rule of pleadings that all material facts must be pleaded in pleadings.

The defendant must state:

a) All matters which show that the suit is not maintainable, or

b) The transaction is either void or voidable in point of law, or

c) The facts showing illegality and other grounds of defence.

 Rule governing denial and deemed admissions in Written statements

Rule 3 to 5 of Order VIII deals with rule governing denial by the defendants in his written statements
which are discussed as follows:

Rule 3: Denial to be specific- The defendant must deny the truth of each allegation of fact specifically of
which he does not except damages. Denial generally will not be sufficient. Therefore, it is not
contemplated in the draft of a written statement that the defendant states generally that he denies all the
allegations in the plaint, but does so specifically pointing each and every paragraph.

Rule 4: Evasive denial-

Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the
point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient
to deny that he received that particular amount, but he must deny that he received that sum or any part
thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it
shall not be sufficient to deny it along with those circumstances.

The defendant must deny an allegation by answering the point of substance and explaining the whole of
the circumstances in which the transaction took place. Therefore the defendant must not just answer to
evade the effect of the paragraph mentioned in the plaint but must give the answer in a way that why the
statement would never affect him by telling the circumstances that stood around the fact in the plaint.
Rule 5: Specific denial-

1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, 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:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such
admission.

2) 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 fact whether the defendant could have, or has, engaged a pleader.
In Badat & Co. v. East India Trading Co. AIR 1964 SC 538 , the Supreme Court held that the combined
effect of Rule 3, 4 & 5 is that every allegation in the plaint should be traversed. Written statement should
answer the point in substance. If the denial is evasive the fact shall be taken to be admitted.

In Balraj Taneja v. Sunil Madan (1999) 8 SCC 396, the Supreme Court held that courts should act
cautiously on the admission made in written statement. The courts should not proceed to pass judgement
merely because written statement has not been filed.

Courts should see that even if the facts set out in the plaint are admitted a judgement could possibly be
passed in favour of plaintiff without requiring him to prove any fact mentioned in the plaint.

If the court is satisfied that no fact need to be proved on account of deemed admission the court can pass
judgement where the written statement has not been filed.

If the plaint contains certain disputed questions of facts which depicts two different versions the court
should require the plaintiff to prove the case. Such a situation would be covered under ‘court may in its
discretion require any such fact to be proved’ used in Order VIII Rule 5(2) or ‘make such order in relation to
suit as it thinks fit’ used in Order VIII Rule 10.
Rule 6 Particulars of set-off to be given in written statement.—

Where in a suit for the recovery of money the defendant claims to set-off against the
plaintiff's demand any ascertained sum of money legally recoverable by him from the
plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties
fill the same character as they fill in the plaintiff's suit, the defendant may, at the first
hearing of the suit, but not afterwards unless permitted by the Court, presents a written
statement containing the particulars of the debt sought to be set-off.
6A. Counter-claim by defendant.—

(1) 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 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 delivering his defence has expired, whether such counter-claim is in the nature
of a claim for damages or not: Provided that such counter-claim shall not exceed the
pecuniary limits of the jurisdiction of the court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to
pronounce a final judgment in the same suit, both on the original claim and on the
counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of
the defendant within such period as may be fixed by the court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to
plaints.
Rule 7. Defence or set-off founded upon separate grounds.

—Where the defendant relies upon several distinct grounds of defence or set-off 1 [or counter-
claim] founded upon separate and distinct facts, they shall be stated, as far as may be,
separately and distinctly.

Rule 8. New ground of defence.—

Any ground of defence which has arisen after the institution of the suit or the presentation of a
written statement claiming a set-off 1 [or counter-claim] may be raised by the defendant or
plaintiff, as the case may be, in his written statement.
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Rule 9. Subsequent pleadings.—No pleading subsequent 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
time of not more than thirty days for presenting the same.

Rule 10. Procedure when party fails to present written statement called for by Court.—
Where any party from whom a written statement is required under rule 1 or rule 9 fails to
present the same within the time permitted or fixed by the Court, as the case may be, 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:

[Provided further that no Court shall make an order to extend the time provided under Rule 1 of
this Order for filing of the written statement.]
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WRITTEN STATEMENT

Facts

‘A’ an aged widow about 80 years is the owner of immovable properties in Patiala. She has a son „B‟, who was
having a wife „’C’.

A is purported to here executed an irrevocable indenture of settlement, by which the income of all the said
properties is supposed to have been given over to „B‟ and „C‟. „C‟ has filed a suit against „A‟ & „B‟ for carrying
out the provision of the said deed of settlement.

She has also alleged in her plaint that, the income, possession, and management are denied to her. „A‟ wants to
contend in defence that the said deed was brought about by „B‟ & „C‟ under influence and misrepresentations
that neither the possession nor the management was ever handed over to „B‟ and „C‟ and the said deed was
never handed over upon, and that, she was still the sole owner in possession and management of the properties
in suit.
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IN THE CITY CIVIL COURT AT PATIALA

SUIT NO. 19 OF 2013

IN THE MATTER OF:
[C] D/O or W/o [Name of the Father/Husband/Guardian],
aged about . . . . years,
R/O [Complete address of the Plaintiff].
. . . Plaintiff
Versus
[A ] D/O or W/o [Name of the Father/Husband/Guardian],
aged about . . . . years,
R/O [Complete address of the Defendant/Respondent].

( B) S/O [Name of the Father]

aged about . . . . years,
R/O [Complete address of the Defendant/Respondent]. …….Defendant

…
Defendant No: 1 above named states as follows:

(1)Defendant No. 1 admits execution of the irrevocable indenture of settlement in favour of

defendant No. 2 and the plaintiff, but pleads that she was induced to do so by the undue
influence and misrepresentations, of defendant No. 2 and the plaintiff.

(2) the defendant was several times threatened with life by the plaintiff and defendant No.2.

(3) on 9th April 2013, the plaintiff and defendant No. 2 B brought an alleged magician in this
defendant‟s house and threatened this defendant that they would have black magic performed by
the magicians and thus kill this defendant. This defendant, being old, submitted to this diction
and executed the indenture of settlement accordingly.

(4) Defendant No. 2 and the plaintiff represented to defendant No. 1 that the deed was one of
the General power of Attorney, empowering the plaintiff and defendant No. 2 to manage the
property of defendant No.1.
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(5) Defendant No. 2 and the plaintiff misrepresented to a Defendant No.1 that it was legally
necessary for defendant No.1 to executed a power of attorney and appoint „B‟ and „C‟ as
managers of defendant No. 1 property.

(6)That defendant says that neither the possession nor the management of the property in suit
were handed over to the plaintiff or defendant No.2. The indenture of settlement was times never
acted upon as alleged. This, defendant therefore is still the full owner in possession and
management of the properties in suit.
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7) The Defendant therefore prays and counter claims

That it may be declared that the said deed of settlement be declared null and void as against her and that the
same day by order of this honourable court be cancelled. This suit be dismissed with cost.

Date:

xxxxxx

Defendant No.1

VERIFICATION

I, defendant, to hereby declared that the facts stated above true and correct to the best of my knowledge,
information and belief.

xxxx xxxx
Advocate of defendant Defendant No. 1
 FORMAT OF WRITTEN STATEMENT
IN THE COURT OF CIVILJUDGE, [[DISTRICT OR PLACE]].
Suit no . . . . . . . . . of 20. . .
IN THE MATTER OF:
[[Name of the Plaintiff]] S/O or D/O or W/o [[Name of the Father/Husband/Guardian]],
aged about . . . . years,
R/O [[Complete address of the Plaintiff]].
Or
M/s ABC Pvt. Ltd.
A Company Incorporated Under the provisions of Companies Act, 2013
Having Its Registered Office At [[Address as per Registration]],
Through its Director, Shri……………………
. . . Plaintiff
Versus
[[Name of the Defendant/Respondent]] S/O or D/O or W/o [[Name of the
Father/Husband/Guardian]],
aged about . . . . years,
R/O [[Complete address of the Defendant/Respondent]].

Or
M/s XYZ Ltd.
A Company Incorporated Under the provisions of Companies Act, 2013
Having Its Registered Office At [[Address as per Registration]],
Through its Director, Shri………………… . . Defendant

.
Written Statement of the Respondent under Order 8 Rule 1

(or Written Statement on behalf of all the Respondents)

The respondent(s) respectfully state(s) as follows : –

(1) Para no. 1 of the plaint is admitted and needs no reply.

(2) Para no. 2 of the plaint is admitted and needs no reply.

(Facts constituting cause of action)

(3) Para no. 3 of the plaint is admitted and needs no reply.

(4) Para no. 4 of the plaint is admitted and needs no reply.

(5) Para no. 5 of the plaint is denied and not admitted because the contract referred to by the

plaintiff in Para no. 3 clearly specifies that the balance amount must be paid by 10/10/2008, failing

which the agreement shall terminate and the buyer shall forfeit the initial deposit. However, the

plaintiff never made the balance payment.

Jurisdiction/Optional)
(10) The market value of the plot is more than 5,00,000/- and so this court has no
jurisdiction to try this case.
(11) The plot is situated in Dewas, MP and so this court has no jurisdiction to try this case.

(12) The respondent therefore prays that the suit be dismissed with costs.
[[Signature of the Defendant]]
[[Name of the Defendant]]
Through
[[Signature of the Advocate]]
[[Name of the Advocate]]

VERIFICATION
Verified at [[Place]] on this [[Date:1st day of January 20…]] that the contents of paras 1 to
… of the plaint are true to my knowledge derived from the records of the Plaintiff maintained
in the ordinary course of its business, those of paras …. to …. are true on information
received and believed to be true and last para is the humble prayer to this Hon’ble Court.
[[Signature of the Defendant]]
[[Name of the Defendant]]