(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, 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 possession or power it is.
(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 the suit.
(4) Nothing in this rule shall apply to documents—
(a) Produced for the cross-examination of the plaintiff’s witnesses, or
(b) Handed over to a witness merely to refresh his memory.] (Order VIII, Rule 1-A).
Production of documents and list of documents:
Save as otherwise provided in Rule 8-A, where the defendant relies on any document (whether or not in his possession or power) in support of his defence or claim for set-off or counter-claim he shall enter such a document in a list, and shall: (a) if a written statement is presented, annex the list to the written statement (and where he claims a set-off or makes a counter-claim based on a document in his possession or power, he shall produce it in court at the time of presentation of the written statement and shall at the same time deliver the document or copy thereof to be filed with the written statement); and (b) if a written statement is not presented, present the list to the court at the hearing of the suit. [Order VIII, Rule 1(2)]. Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
If no such list is so annexed or presented, the defendant shall be allowed such further period for the purpose as the court may think fit. [Order VIII, Rule 1(1-4)]. A document which ought to be entered in the list and which is not so entered, shall not, without the leave of the court, be received in evidence on behalf of the defendant at the hearing of the suit. [Order VIII, Rule 1(5)].
Nothing in sub-rule (5) shall, however, apply to documents produced for the cross-examination of plaintiff’s witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness merely to refresh his memory. [Order VIII, Rule 1(6).]
Where the plaintiff in second appeal is allowed to amend his plaint, the defendant must also be given an opportunity to file an additional written statement before passing a decree or order.
A person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which title to the property was intended to be created upon.
Thus, the whole question would depend upon the pleadings of the parties, the evidence led by the parties in the suit and other attending circumstances. It would be open to the tenant in his capacity as defendant to assert, plead and prove that the deed was fictitious and collusive in nature and deed was only to evict him.
Court has power to condone non-filing of written statement within 90 days:
Though a defendant is required to file written statement within 30 days after receipt of summons and though the Court can extend the time till 90 days, the Court is not divested of power to fix further time for filing the written statement.
It is well settled that this cardinal principle of interpretation of law with an enactment has to be read as a whole and then the entire section has to be read and thereafter the Act has to be interpreted section by section. One Rule or one Section in the enactment cannot be a guiding factor for arriving at the intendment of the legislature.
The very fact that Rule 10 is re-introduced by Act 22 of 2002 by the Parliament would show that the Parliament never intended the Civil Court to pronounce judgment immediately after the failure on the part of the defendant to file written statement within 90 days.
Duty of defendant to produce documents upon which relief is claimed by him:
Where a defendant bases his defence upon a document in his possession or power, he shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document or copy thereof, to be filed with the written statement. [Order VIII, Rule 8-A],
The written statement must contain a statement in a concise form of the material facts on which the defendant relies for his defence, but not the evidence by which they are to be proved.
He must raise by his pleading all matters which show that the suit is not maintainable or that the transaction is either void or voidable in point of law, and all such grounds of defence must also be stated which, 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 fact showing illegality. (Order VIII, Rule 2).
The defendant must deal specifically with each allegation of fact of which he does not admit the truth. It shall not be sufficient for him in his written statement to deny generally the grounds alleged by the plaintiff.
There must be no evasive denial of fact, for 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.
Thus if it is alleged that the defendant 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. (Order VIII, Rules 4 and 5). If the allegations of fact made in the plaint have not been specifically denied, they should be deemed to have been admitted.
Specific Denial and deemed Admission:
Rule 3 of Order VIII requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant.
What this rule says is that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.
In election petition the allegations of corrupt practices were made on the basis of speeches of a speaker in presence of the candidate. The candidate denied that expressly or impliedly he had consented to the alleged offending speeches and he asserted that he was not connected with any act of the speaker or responsible for any of her actions and he has not invited her. The denial envisaged under Order VIII, Rule 5 was complete and no implied admission of averments in petition can be read by non-traverse.
Admission not sufficient:
Private contractor challenged after lapse of four years the Government order black listing him on the ground of non-service of order. Government pleaded that the order was communicated. High Court set aside the order of black-listing on the ground of non-traverse as the Government failed to deny the allegations of contractor.
Supreme Court held that the order of High Court was not justified. When the black listing order was challenged after lapse of four years, the High Court should have asked the proof of receipt or non-receipt of order other than the alleged admission.
Against suit of recovery one defendant denied his signatures on vakalatnama and written statement. In such case instead of going protracted trial, court should have decreed the suit of the plaintiff against the defendant denying signatures on written statement and vakalatnama.
Limitation period of suit for redemption of mortgage:
Where document of mortgage had been duly proved and there was no specific denial of defendant about plea of date of mortgage. Plaintiffs’ witnesses were not cross-examined regarding the date of execution of mortgage deed. Held, that suit filed within period of five years next after commencement of Limitation Act of 1963 was within the period of limitation.
Effect of non-filing of defence—pronouncement of Judgment on plaint:
Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of 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. In exercising its discretion the court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
Where the defendant relies upon several distinct grounds of defence founded upon separate and distinct facts, they must be stated separately and distinctly. (Order VIII, Rule 7).
The defendant may also in a suit for recovery of money file the particulars of the debt sought to be set off in the written statement, which shall have the same effect as a plaint in a cross suit.
No pleading subsequent to the written statement of a defendant other than by way of defence to a 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. (Order VIII, Rule 9).
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.”] (Order VIII, Rule 10).
Merely because the amendment sought is alleged to be inconsistent with the previous case of the defendant, it is not a good reason for rejecting the application of the defendant for amendment. The general rule applicable to a case of this nature is that leave to amend ought to be granted unless the party applying is acting mala fide or by his blunder has done some injury to his opponent which cannot be compensated by award of costs; otherwise whether the original omission arose from negligence, carelessness, or accidental error, the defect may be allowed to be remedied if no injustice is done to the other side.
Money suit—Recovery of rent and other charges for three years:
Where the claim portion also includes words “rent pendente lite and future rents”, held that there was no scope for consideration of money suit claiming future and pendente lite interest. Such claim was not considered by Court and judgment was silent on it. Therefore claim not being legally maintainable, silence must be construed that the same had been rejected by the trial Judge.
Jurisdiction to grant alternative relief:
Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief. Order VII, Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted.
Cause of action—Meaning of:
Cause of action as understood in the civil proceedings means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. To put it in a different way, it is bundle of facts which taken with law applicable to them, gives the plaintiffs a right to relief against the defendant.
Set off is reciprocal acquittal of debts. In an action to recover money, set-off is a cross-claim for money by the defendant, for which he might maintain an action against the plaintiff, and which has the effect of extinguishing the plaintiff’s claim pro tanto.
Particulars of set-off:
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, present a written statement containing the particulars of the debt sought to be set-off.
Effect of set-off:
The written statement shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of both the original claim and of the set-off. (Order VIII, Rule 6).
In a suit for injunction, the counter claim for possession by defendant can be entertained under Order VIII, Rule 6 (A) (l).
Legal set-off may be explained by few illustrations.
(a) A suit is brought by a Hindu son as the heir and representative of his father to recover from B certain debt due to the father. B claims to set-off a debt due to him by A’s father. B may do so, for both the parties fill the same character. But the amount due as manager cannot be set-off against a personal liability, for both parties do not fill the same character.
(b) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B’s effects. C pays Rs. 1,000 as security for D; then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of Rs. 1,000.
(c) A dies intestate and in debt to B. C takes out administration to A’s effects and B buys part of the effects from C. In a suit for the purchase money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B in which he sues B, and the other as representative to A.
(d) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B’s goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.
(e) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite, pecuniary demands may be set-off.
(f) A sues B for compensation on account of trespass. B holds a promissory note for Rs. 1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for as soon as A recovers, both sums are definite pecuniary demands.
(g) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone.
(h) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.
(i) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.
The set-off mentioned above is a legal set-off. It is apparent from a reading of the above provisions that in order to constitute legal set-off, the following conditions must be fulfilled, viz.,
(a) The suit must be for recovery of money.
(b) The defendant must claim an ascertained sum of money. A sum of money due in respect of a disputed transaction cannot constitute an ascertained sum.
(c) That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred by the law of limitation.
(d) The plaintiff’s claim and the set-off must be claimed in the same character. The amount must be recoverable by the defendant and if there are more than one defendant then by all the defendants. Again, the amount must be recoverable by the defendant from the plaintiff and if there are more than one plaintiff then from all the plaintiffs.
(e) The set-off should be within the pecuniary jurisdiction of the court.
The above provisions further establish that the court must treat the claim of the defendant exactly as if the defendant had filed a plaint and the court must pass a decree in favour of the defendant, if his claim is established.
It is only in a written statement that a plea of set-off can be raised. The rule further confines only to set-off and does not provide for a counter-claim, which is allowed by way of equitable set-off, and is not expressly provided in rule 6-A of Order VIII, by C.P.C. (Amendment) Act, 1976.
By equitable set-off we mean that form of set-off which the Court of Equity in England allowed when cross-demands arose out of the same transaction, even if the money claimed by way of set-off was an unascertained sum of money. The Common Law Courts refused to take notice of equitable claims for they were not ascertained sums.
The Courts of Equity, however, held that it would be inequitable to drive the defendant to a separate cross-suit and that he might be allowed to plead a set-off though the amount might be unascertained. Such a set-off is called an equitable set-off.
English law Principle of Equity Applicability in India:
The Courts in India have, apart from and independent of the provisions contained in the Code, followed the principle adopted by the Courts of Equity and allowed a set-off even in respect of an unascertained sum in the nature of cross-demands arising out of the same transaction, or if they are so connected in their nature and circumstances that they can be looked upon as one transaction.
But it is necessary that the claim to set-off must be within limitation on the date on which the written statement was presented. An equitable set-off cannot be claimed as of right and the court has a discretion to refuse to allow it.
If a protracted enquiry is necessary for determination of the sum due, it may be ground for refusing it. In allowing such a claim to be raised the court is entitled to put the defendant on such terms as it thinks reasonable and proper.
Discretion of Court and Damages:
In the case of damages, set-off can be allowed by way of equity and is in the discretion of the court. It is essential for a party claiming an equitable set-off that the cross-demands should arise out of the same transaction.
Where the plaintiff bases his case on a contract and the defendant’s claim is for damages not arising from the same transaction nor connected with it, the defendant is not entitled to claim an equitable set-off. Claim of damages by way of a set-off being in the nature of an equitable set-off, court-fee is payable thereon.
Legal set-off—Order VIII, Rule 6:
In India the distinction between legal and equitable set-off remains. The provisions as to legal set-off are contained in Order VIII, Rule 6, C.P.C. The same has now been enlarged by insertion of Rule 6-A with regard to counter-claim by the defendant. So far as equitable set-off is concerned it is provided in Order XX, Rule 19(3), C.P.C., which states that “the provisions of this rule (relating to a decree for set-off or counter-claim and an appeal there from) shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise.” The provisions of Order VIII, Rule 6, and Rule 6-A are, therefore, not exhaustive because apart from a legal set-off an equitable set-off can be pleaded independently of the specific provision of the Code.
Principles governing equitable set-off:
As a result of a series of decisions of the Courts in India there emerge the following propositions of law with regard to equitable set-off:
1. As equitable right of set-off exists in this country when both the claim of the plaintiff and that of the defendant arise out of the same transaction.
2. The law of equitable set-off applies where the cross-claims, though not arising out of the same transaction, were closely connected together.
3. In order that a claim for equitable set-off may arise, it is not sufficient that there are cross-demands; it is further necessary
1. Gulla v. Premsukhdas, 1954 RLW 749.
2. Narsing Rao Ramkrishnayya v. Veerayya Rajanna, ILR 1952 Hyd 104.
that there should be a connection between them which makes it inequitable to drive the defendant to a separate suit—as when the demands arise out of the same transaction or when there is on each side knowledge of and confidence in one debt discharging the other.
Legal and Equitable Set-Off:
The distinction between legal and equitable set-off may now be noted:
1. In a legal set-off the amount claimed must be an ascertained sum of money, but in an equitable set-off the claim must be allowed even with respect to an unascertained sum of money.
2. In a legal set-off the court is bound to entertain and adjudicate upon the plea when raised. In the case of an equitable set-off, however, it is not obligatory on the court to adjudicate upon it and the defendant cannot claim it as a matter of right. The court has the discretion to refuse to take notice of the equitable set-off if the investigation into the equitable claim is likely to result in delay.
3. In a legal set-off it is not necessary that the cross-demands arise out of the same transaction, but an equitable set-off is allowed only when the cross-demands arise out of the same transaction as the plaintiff’s claim.
4. In a legal set-off the amount claimed to be set off must be legally recoverable and not barred by limitation at the date of the suit, but a claim by way of equitable set-off can be allowed even if it is barred at the date of the suit where there is fiduciary relationship between the plaintiff and the defendant.
5. If the defendant’s claim is barred at the date of the written statement but not barred at the date of the suit, the defendant can get an equitable set-off to the extent of the plaintiff’s claim only but not for the balance found due to him. In a legal set-off the whole claim is admissible and the defendant can even get a decree for the balance.
6. A legal set-off requires a court-fee because it is a claim that might be established by a separate suit in which a court-fee would have to be paid. But there is no such fee required in an equitable set-off which is for an amount that may equitably be deducted from the claim of the plaintiff where a court-fee has been paid on the gross amount.
Counter-claim by defendant:
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. (Order VIII, Rule 6-A).
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. 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. The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. [Order VIII, Rule 6-A (2-4)].
Object of Counter-claim—to reduce pendency of cases:
Rule 6-A contemplates counter-claim in any suit. The scheme of the new rule is to permit the defendants to set up counter-claims, which arise between the parties and which are cognizable by the court where the suit is pending. The object appears to be to reduce pendency of cases so that cause of action and cross-claim similar in nature could be clubbed together and disposed of by a common judgment.
Starting time of right to file counter-claim:
A pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter-claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement.
Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired, then neither the written statement can be filed as of right nor a counter-claim can be allowed to be raised, for the counter-claim under Rule 6-A must find its place in the written statement.
The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counter-claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts, and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the Court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time.
Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. (Order VIII, Rule 6-B).
Under Order VIII, Rule 6-A of the amended Code, made by the Act of 1976 of the Code of Civil Procedure, pending suits would be governed by the provisions of the new Code. Nobody has any vested interest in procedural law.
Nature and Effect of Counter-claim—cross-suit:
A written statement making a counter-claim has the same effect as a cross-suit. When an application for permission to sue for counter-claim in forma pauperis is filed, the court is bound to consider that application and dispose it of according to law.
The Hon’ble Chief Justice of the Allahabad High Court Sri Satish Chandra held in Civil Revision No. 2697 of 1978 (Mahendra Jung Rana v. Pan Singh Negi, on 8th February, 1980) that the cause of action for the counter-claim should accrue to the defendant either before or after the filing of the suit but before the defendant has delivered his defence or before the time for delivering his defence has expired.
The limitation of time is clearly in respect of the cause of action on which the counter-claim is usually made in the written statement. The provision would become unworkable if it is so construed as to provide a time limit for filing a counter-claim.
Since the counter-claim can, in law, validly be filed as part of the written statement, the limitation of time that it should be filed before the defendant has delivered his defence would make it unworkable. That also would go to suggest that the limitation of time is in respect of the accrual of the cause of action for the counter-claim and not for its actually being raised in the suit.
An application for counter-claim under Order VIII, Rule 6-A is not exfacie barred after filing of written statement.
Rule 6-B of Order VIII provides that where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. That rule does not apply where specifically a counter-claim is raised, but confines itself to a ground mentioned in the written statement as supporting a right to counter-claim.
The plaintiff may object to disposal of the claim by way of counter-claim by pleading for its disposal by an independent suit, and he may, at any time before issues are settled in relation to the counter-claim apply to the Court for an order that such counter-claim may be excluded, and the court may, on the hearing of such application, make such order as it thinks fit. (Order VIII, Rule 6-C).
Any right or claim in respect of a cause of action accruing with the defendant:
A defendant can file counter-claim in respect of a cause of action which is independent of cause of action averred by the plaintiff. It need not confine to money claim or to cause of action of the same nature as of the plaintiff or related to or be connected with the original cause of action or matter pleaded by the plaintiff. In a suit for injunction, counter claim for injunction in respect of the same or different property can be made under Order VIII, Rule 6-C.
If the plaintiff makes default in putting in a reply to the counter-claim 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. (Order VIII, Rule 6-E).
Where in any suit a set-off or counter-claim is established as a defence against the plaintiff’s claim, and any balance is found due to the plaintiff or defendant, as the case may be, the court may give judgment to the party entitled to such balance. The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim. (Order VIII, Rules 6-F and 6-G).
Set-Off and Counter-Claim:
The distinction between set-off and counter-claim may now be noted:
(1) Set-off must be for an ascertained sum or must arise out of the same transaction as the plaintiff’s claim; a counter-claim, however, need not arise out of the same transaction.
(2) Set-off is a statutory ground of defence and has to be pleaded in the written statement. It can, however, be sued as a shield and not as a sword. Counter-claim, on the other hand, does not afford any defence to the plaintiff’s claim; it is a weapon of offence which enables the defendant to enforce his claim against the plaintiff as effectually as in an independent action. It is a sort of cross-action.
(3) If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish his plea has to prove that set-off was barred when the plaintiff commenced the action; it is not enough to prove that it was barred at the time when it was pleaded. In the case, however, of a counter-claim it is enough for the plaintiff to prove that the counter-claim was barred when it was pleaded.
(4) An equitable set-off is a claim by the defendant in defence, which generally cannot exceed the plaintiff’s claim. A counter-claim by the defendant may, however, exceed the plaintiff’s claim, being in the nature of the cross-action. Under the provision of Rule 6-F of Order VIII, if in any suit a set-off or counter-claim is established as a defence against the plaintiff’s claim, and any balance is found due to the defendant, as the case may be, the court may give judgment to the party entitled to such balance.
Subsequent pleadings and new ground of defence:
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 for presenting the same.
But any ground of defence which has arisen after the institution of the suit or the representation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be, in his written statement or additional written statement. [Order VIII, Rules 8 and 9].
Minor Defendant attaining majority—right to file written statement:
When a minor defendant attains majority and wishes to file a written statement, he may do so either with the leave of the court under Order VIII, Rule 9, C.P.C. but he must satisfy the court that the leave, on the facts of the case, should be given to him.
He has, of course, a right to apply for amendment of the written statement within the limits specified by judicial interpretation of Order VI, Rule 17, C.P.C. He has no absolute right to get the earlier written statement filed by the guardian-ad-litem superseded.
Where a defendant bases his defence upon a document in his possession or power, he shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement. A document which ought to be produced in court by the defendant under this rule, but if not so produced, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.
Object of enactment of new Code by Parliament:
It cannot be forgotten that the new Code was enacted by the Parliament in order to cut short delays at various levels. These statutory provisions were introduced in the new Code for speedy disposal of cases in consonance with fair play and justice. Therefore, Trial Courts must be extremely cautious in exercising powers under Order VIII, Rule 9.
Failure to present written statement called for by court:
Where any party from whom a written statement is so required fails to present the same within the time fixed 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. (Order VIII, Rule 10).
Procedure to be followed for necessity of plaintiff proving his case in ex parte proceedings:
Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order VIII, Rule 10 of the C.P.C. is attracted and the Courts act there under, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy.
A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX, Rule 5. Yet the trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the ‘points for determination’ and proceed to construct the ex parte judgment dealing with the points at issue one by one.
Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.
The above rule in terms applies only to a written statement and a set-off, and the plaintiff cannot be called upon to file a counter written statement. The policy of the law is not to dispose of a case on mere technicalities and the discretion allowed under this rule must be exercised.
An appeal lies against an order passed under this rule. [Order XLIII, Rule 1(b).]