WRITTEN STATEMENT

In legal dictionary, the word written statement means a pleading for defence. However, the
expression ‘written statement’ has not been defined in the code and it is a term of specific
connotation ordinarily signifying a reply to the plaint which is filed by the plaintiff. In other
words, a written statement is the pleading of the defendant wherein he deals with every
material fact alleged by the plaintiff along with any new facts in his favour or that takes legal
objections against the claim of the plaintiff.

R.1. – Written statement- A defendant should, within 30 days from the service of summons
on him, present a written statement of his defence the period id extendable up to 90 days, but
for reasons to be recorded for such extension. A written statement should be drafted carefully
and artistically. All the general rules of pleading apply to a written statement also. Before
proceeding to draft a written statement it is absolutely necessary to examine the plaint
carefully. Like a plaintiff, a defendant may also take a number of defences, either simply or
in the alternative, even though they may be inconsistent, provided they are maintainable at
law and are not embarrassing.

R-1A provides for Duty of defendant to produce documents upon which relief is claimed or
relied upon by him

R.2. New facts must be specially pleaded.

The effect of the rule is, for reasons of practice and justice and convenience, to require the
party to tell his opponent what he is coming to the Court to prove. If he does not do that, the
Court will deal with it in one of two ways. It may say that it is not open to him, that he has
not raised it and will not be allowed to rely on it; or it may give leave to amend by raising it
and protect the other party.

R.3. Denial to be specific

The defendant must deny specifically with each allegation of fact of which he does not admit
the truth.

R.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 the allegation 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 else set out how much he received.

R.5. Specific denial

Rule 3 of Order VIII requires that the defendant must deal specifically with each allegation
effect 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.

Badat& Co. v. East India Trading Co.

The combined effect of Rules 3, 4 and 5 has been considered by Subba Rao ,J. (as he then
was) in the case of Badat & Co. v. East India Trading Co. said that the written statement must
deal specifically with each allegation of fact in the plaint and when a defendant denies any
such fact; he must not do so evasively, but answer the point of substance. If his denial of a
fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event,
the admission itself being proof, no other proof is necessary.”

R.7. Defence or set-o founder upon separate grounds

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

R.8. New ground of defence

The additional ground of defence must be taken before the commencement of trial. A plea
that the suit was liable to be stayed in view of an arbitration clause in the contract was held to
have been waived, although an additional written statement containing such plea was file and
accepted by the trial court.

R.9. Subsequent pleadings

Order VII, Rule 9, C.P.C. lays down an important rule of pleading that no pleading
subsequent to the written statement by a defendant other than by way of defence to a set-o
shall be presented except by leave of the Court. The rule requires leave of the Court before
any party can make a further pleading after written statement has been filed. Where a
defendant intends the file additional written statement, he must file an application showing
the circumstances as to why he failed to raise the plea in the original written statement, and
the other party must be given opportunity to meet the motion.

R.10. Procedure when party fails to present written statement called for by Court.

In Modula India v. Kamakshya Singh, explaining the ambit and scheme of Rules 1, 5 and 10
of Order 8, the Apex Court observed:

 Rule 1 merely requires that the defendant should present a written statement of his
defence within the time permitted by the Court.
 Under Rule 5(2), where the defendant has not tiled a pleading it shall be lawful for the
Court to pronounce judgment on the basis of the facts contained in the plaint except
against a person under disability but the court may at its discretion require any such
fact to be proved.
 Again under Rule 10 when any party from whom a written statement is required fails
to present the same within the time permitted or fixed by the Court, the Court ‘shall
pronounce judgment against him or make such order in relation to the suit as it thinks
fit`.

INTRODUCTION TO SET-OFF AND COUNTER-CLAIM

The law along with substantive law also provides for procedural law to define the procedure
which will lead towards the track of getting rights of the people so in pursuance of that, there
is a law under the Civil procedure Code (CPC) under which Order 8 rule 6 and rule 6-A
provides for the procedure of set-off and counter-claim which makes it easy for the court to
deal with the same cases in a single suit and provide adequate justice according to it.

PROVISIONS-

Rule 6 Order 8 Of Civil Procedure Code defines the term “Set off” whereas Rule 6A-6G of
Order 8 defines the term Counterclaim.

There was no provision in the Code (Before Amended Act, 104 of 1976) about counter-claim.
The provision for filing counter-claim by a defendant was introduced, for the first time, by
the 1976 Amendment to the Code of Civil Procedure, 1908 and consequently, Order 8, Rule
6-A to Order 8, Rule 6-G came to be inserted by which now the counter-claims can be set up
by the defendant. What the law contemplates is treating the counter-claim as a cross-suit.
Recognizing that a counter-claim is a cross-suit and not a separate suit, there is first, no
registration of a counter-claim as a separate suit.1

Rule 6B Counterclaim should be in a written form

Rule 6C Court on the hearing of plaintiff’s application can exclude such counter-claim

Rule 6D If the suit of the plaintiff is stayed, discontinued or dismissed will not affect the
counter-claim

Rule 6E Court can make a judgment against the plaintiff if didn’t reply for the counter-claim

Rule 6F Relief to the defendant where counter-claim succeeds.

Rule 6G Rules of written statement applies to the reply of counter-claim.

MEANING OF SET-OFF-

The term set off can be interpreted as setting of the claim or a counter-claim which must arise
out of the same transaction as the plaintiffs claim, so when a defendant has any claim which
he wants to set along with the present claim then he files the set off as a written statement
within 30 days of the period.

Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has
a claim of some amount against the plaintiff what he do is he can claim a set-o in respect of
the said amount. This right of the defendant to claim set o has been recognized under Order 8,
Rule 6 of the Code.

Essential Conditions:

 A defendant may claim a set-off, if:

 The suit is for the Recovery of money;
 The sum of money must be ascertained;
 Such sum must be legally recoverable;
 It must be recoverable by the defendant or by all the defendants, if not more than one;

1
Ashok Kumar Singh Sengar vs Om Prakash Chaturvedi And 4 Others on 16 March 2016
  It must be recoverable by the defendant from the plaintiff(s);
 It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
 Both the parties must fill in the defendant’s claim to set-o, the same character as they
fill in the plaintiff’s

Effects:

When a defendant claims set-off, he is put in the position of the plaintiff as regards the
amount claimed by him. Where the plaintiff doesn’t appear and his suit is dismissed or he
withdraws, it does not affect the claim for a set-o by the defendant and a decree may be
passed in his favour if he is able to prove his claim.

Illustrations:

 X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to insure

Y’s goods and is liable to him in compensation which he claims to set-o. The amount
not being ascertained cannot be setoff.
 P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs.
1,000. The two claims being both definite, it may be set-off.

For instance, A has filed the suit against B for claiming 15000 Rs. For which court has asked
B to send his reply within 30 days, then within 30 days B came up with another claim of
20,000 Rs. and asked the court to set the same with the present suit, so here the court will
consider this claim from B as another plain, instead of a written statement, within the same
suit, and will give their judgment conjointly.

MEANING OF COUNTERCLAIM-

The term counterclaim can be understood as cross-action which can arise before the suit gets
filed, after the suit files or before the defended has presented his written statement, and is
considered as a weapon in law.

For instance, A has filed the suit against B asking for an injunction so that B is not able to
enter into his property for which court has asked the B to send his reply within 30 days, B
came up with another claim that the property against which A had filed complaint is actually
under belongs to A and in under him so here this claim which is given in the form of the
written statement will consider as a plaint and instead of filing a separate suit court will deal
with that in the same suit.

WHAT MAKES THE SET OFF DIFFERENT FROM COUNTER-CLAIM-

The distinction between a set–off and a counter-claim must be borne in mind. In one sense
both are cross-actions, but a set–off is also a ground of defence. If established, it affords an
answer to the plaintiffs’ claim either wholly or pro tanto, for set–off is a debt claimed by a
defendant against the plaintiff balancing a debt claimed by the plaintiff against the defendant.
A counter-claim, on the other hand, is a weapon of offence and enables a defendant to
enforce a claim against the plaintiff as effectually as in an independent action.[3] In the same
way there many more things which makes the identity of set-off different from counter-claim,
as-

NATURE-

Both the set-off and counter-claim follow procedural nature where they provide the way to
short out the two claims in a single suit, they are enabling provision which gives a right to the
defendant that instead of filing an independent action, he can seek that relief in a suit filed by
the plaintiff against him.[4]

OBLIGATIONS IMPOSED BY THE PROVISIONS-

Under Order 8, Rule 6-A (2) of the C.P.C. 1908, it is provided that a counter-claim shall have
the same effect as a cross-suit to enable the Court to pronounce a final judgment in the same
suit, both on the original claim and the counter-claim and Order 8 Rule 6-A entitles the
plaintiff to file a written statement in answer to the counter-claim while Order 8 Rule 6-A
provides that the counter-claim shall be treated as a plaint and governed by the rules
applicable to plaints.

The Kerala High Court in Pampara Philip Vs. Koorithottiyil Kinhimohammed; observed that
in a suit where the counterclaim is made, there may be cases where plaint is dismissed and
the counterclaim is allowed, the plaintiff needs to challenge only the counterclaim.

It is substantially a cross-action by the defendant against the plaintiff and secures to the
defendant the full relief which a separate action at law, a bill in chancery or a cross bill would
have secured him on the same state of facts.2
2
Cofex Exports Ltd. vs Canara Bank on 29 May 1997
Whereas Sub-rule (1) of Rule 6 of Order VIII of CPC imposes two restrictions upon the
defendant’s right to claim set–off. These two restrictions are (i) that the claim should relate to
any ascertained sum of money; and (ii) that it must be legally recoverable by the defendant
from the plaintiff. 3

So, set off also get followed on the same principles as counter-claim but the difference is that
the claim under it needs to be arising from the same action as filed by the plaintiff.

MUTUALITY BETWEEN CLAIMS AND PARTIES-

Order 8, Rule 6-A, C.P.C. does not say as to who shall be parties to the counter–claim. It does
not enable the participation of persons who are not already parties to the suit is difficult to
accept.

The counterclaim need not necessarily be confined to the claim made against the plaintiff,
and if for its effective adjudication- besides the plaintiff, other interested persons should be
made parties, they should be impleaded, if the Court is satisfied that without them the
adjudication will be incomplete.4

Whereas in set off the law does not permit counter-parties to use third party debt to set off
against an un-related liability.[8]All forms of set-off require mutuality between claim and
cross-claim.

TYPES-

The term set off is divided into two types- Legal set off and Equitable set off, whereas there
is no such division of counter-claim exists.

The set off as per order 8 Rule 6 CPC may be claimed for an ascertained sum of money
which is legally recoverable from the plaintiff. This is known as a legal set-off. And for an
unascertained sum of money, and equitable set-off may be claimed, but not as of right. It is
the only legal set off for which the procedure is laid down in Civil ProcedureCode, but none
of the rules bar the defendant to claim equitable set-off.[9] In Jeetendra Kumar Khan v. the
Peerless General Finance & Investment Co. Ltd.7, it gets that the principle of equitable set-
off is founded on the fundamental principles of equity, justice, and good conscience.

3
M.V. Ramana Rao vs N Subash on 10 April 2019
4
Teofilo Barreto vs Sadashiva G. Nasnodkar And Ors. on 5 March 2007
Also, in Bhagwati Prasad V. Hukamchand Mills Ltd 1961 In Bhagwati Prasad’s case, the
High Court of Madhya Pradesh has held: “In case of an equitable set–off the principle
contained in Order 8 rule 6 applies not strictly but only by analogy. Therefore, the Court’s
discretion in this regard is wider than in a case falling within the terms of that rule. That does
not mean that the? The court can do what it likes. If for example, the claim of the defendant’s
inequitable set–off relates to transactions that can be suitably investigated in the suit itself,
and then even if it is a claim for the unliquidated sum it should be taken up. If on the other
hand, the defendant’s version would involve an elaborate and complicated inquiry
unconnected with and over a period different from the version of the plaintiff, the matter
should be left to a fresh suit by the defendant. The question is not one of the party’s rights or
the court’s jurisdiction. It is ultimately one regarding the convenience and of the mechanics
of the litigation.5

CONCLUSION-

The provisions of Set-off and counter-claim get introduced in the CPC to make things
convenient for the judiciary as well as general people so that they need not waste their
precious time and resources with the burden of a variety of separate suits as it provides an
opportunity to file another plaint in the form of a written statement with the already existing
suit. It could be concluded that this weapon and defence is providing the judiciary with an
opportunistic way to give speed to their actions toward providing justice.

Appearance and Non-appearance of Parties in the Civil Suit

Introduction

Every proceeding as far as possible must be carried on in the presence of parties as a general
principle of law. Order IX of the Code of Civil Procedure lays the laws regarding the
appearance of parties and what are the consequences of the non-appearance of parties.

The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are
required to attend the court either in person or by their pleaders on the day which has been
fixed in the summons. If the plaintiff or a defendant, when ordered to appear in person, do not

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Vediammal And Ors. vs M. Kandasamy And Ors. on 7 February 1997
appear before the court and neither show the sufficient cause for his non-appearance, the
court is empowered under Rule 12 of Order IX as follows.

1. If the plaintiff does not appear, dismiss the suit.

2. If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is called
for hearing, then the court is empowered to dismiss the suit under Rule 3 of Order IX. The
dismissal of the suit under this rule does not put a bar on filing a fresh suit on the same cause
of action as per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that
there was sufficient behind his non-appearance. If the court is satisfied with the cause of non-
appearance then it may set aside the order of dismissal and schedule a day for the hearing of
the suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can
be passed against the defendant. But, the plaintiff has to prove that the summon was served to
the defendant. 

If service of the summons is proved then only the court can proceed for an ex-parte against
the defendant and the court may pass a decree in favour of the plaintiff. This provision
applies only for the first hearing and not for the subsequent hearings of the matter and the
same has been held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of justice
even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been
held by the Supreme Court that -It is the duty of the court to ensure that statements in the
plaint stand proven and the prayers asked before the court are worthy of being granted. This
provision of passing ex parte order cannot be passed when there are more than one
defendants in the case and any of them appears.

Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant has been laid
down from rule 7-11 of Order IX. When the defendant appears but there is non-appearance of
the plaintiff, then there can be two situations:

1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.

2. The defendant admits the plaintiff claim.

If the defendant does not admit the claim of the plaintiff, then the court shall order for
dismissal of the suit. But, when the defendant admits completely or any part of the claim
made by the plaintiff then the court is empowered to pass a decree against the defendant on
the ground of such admission and for rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not
be adopted unless the court gets satisfied that in the interest of justice such dismissal is
required, as cited by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.

Do the same provision applies to the non-appearance of the plaintiff due to death?

When the plaintiff does not appear because of death, the court has no power to dismiss the
suit. Even if such order is passed it will amount to a nullity as held in the case of P.M.M.
Pillayathiri Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the plaintiff then he
can make an application to set aside the order of dismissal. If the court is satisfied with the
reason of non-appearance as a sufficient cause then the court can set aside the order
dismissing the suit and fix a day for the proceeding of the suit. 

Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the main point to be
considered is whether the plaintiff really tried to appear on the day which was fixed for
hearing or not. When sufficient cause is shown by the plaintiff for his non-appearance, then it
is mandatory for the court to reopen the suit. In absence of sufficient cause, it is upon the
discretion of the court to set aside the dismissal or not as held in the case of P.K.P.R.M.
Raman Chettyar v. K.A.P. Arunachalam Chettyar. Sufficient cause depends upon the facts
and circumstances of each and every case.
In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the
party arrives late and find its suit dismissed due to his non-appearance then he is entitled to
have his suit or application restored with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not
served to the defendant. One of the fundamental law of procedural law is that a party must be
given a fair opportunity to represent his case. And, for this, a notice of the legal proceedings
initiated against him is obligatory. Therefore, service summons to the defendant is mandatory
and it is a conditional precedent. 

When there is no service of summons or it does not give him sufficient time for effective
presentation of the case then a decree cannot be passed against him as held in the case
of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of
summons to the defendant then the suit may be dismissed. But, no dismissal can be made
even in the presence of such failure if the defendant appears on the day of hearing either in
person or through his pleader. However, the plaintiff is entitled to file a fresh suit when the
suit is dismissed under this rule. and, if the court is satisfied that there is a reasonable reason
behind such failure to pay costs then the court may set aside the order of dismissal.

When the summon is returned unserved and the plaintiff does not apply for fresh summons
for 7 days from which the summon is returned unserved by the defendant or any of the
defendants, then the court can dismiss the suit against the defendant or such defendants

When the summon was not duly served to the defendant is not proved then the court can
direct to issue a fresh summon to the defendant for service. When the service of the summons
is proved before the court but the time prescribed in the summon is not sufficient for him to
answer on the day which has been fixed, then the hearing can be postponed by the court to a
future date and notice will be given to the defendant.

Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte
decree can be passed. The ex-parte order is passed when the plaintiff appears before the court
on the day of the hearing but the defendant does not even after the summon has been duly
served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless
it is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree
and it has all the forces as a valid decree as held in the case of Panduranga Ramchandra v.
Shantibai Ramchandra.

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following remedies are
available to him.

1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte
decree passed by the court.

2. He can appeal against that decree under section 96(2) of the Code or, prefer revision
under section 115 of the code when no appeal lies.

3. He can apply for a review under Order 47 Rule 1.

4. A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the defendant. An
application to set aside decree can be made to the court passing that decree. There are certain
rules to be followed for setting aside an ex-parte decree and if the defendant satisfies the
court with sufficient reason, then only the ex-parte decree which has been passed can be set
aside.

The limitation period for making an application for setting aside an ex-parte decree is
of 30 days.

The grounds on which an ex-parte decree can be set aside are:

1. When the summons has not been duly served.

2. Due to any “sufficient cause”, he could not appear on the day of the hearing.

Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case of UCO
Bank v. Iyengar Consultancy, it is a question which is determined upon the facts and
circumstances of the cases. The test to be applied for this is whether or not the party actually
and honestly intended to be present at the hearing and tried his best to do so. There are
several instances which have been considered as sufficient cause such as late arrival of the
train, sickness of the council, the strike of advocates, death of a relative of party etc. 

The burden of proof that there was a sufficient cause of non-appearance is upon the
defendant 

Conclusion

The appearance and non-appearance of parties have an effect on the case and whether it will
be carried on for the next hearing, dismissed or an ex-parte decree will be given. When none
of the parties appears then the suit can be dismissed by the court. The suit is carried on for the
next hearing only when both parties appear before the court.

If the plaintiff appears before the court but no defendant appears on the day of hearing then
the court may pass an ex-parte decree against the defendant. The situations when there is non-
appearance on the behalf of the plaintiff then the suit can be dismissed if the defendant denies
the claim of the plaintiff and if he admits to any claim the court can pass an order against him
on the ground of his admission.

When any suit is dismissed or an ex-parte order is passed then it can also be set aside if there
is sufficient reason behind the absence of a party. If the court is satisfied with the reason of
absence then it may set aside the order of dismissal or an ex-parte order. During all these
procedures the court must keep in mind that nowhere any miscarriage of justice is done
during the dismissal or while passing an ex-parte order.