DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW
2023-2024

WRITTEN STATEMENT: DEFENDANT’S RESPONSE TO PLAINTIFF’S CLAIMS

DRAFTING OF PLEADINGS AND CONVEYANCING

SUBMITTED BY:
SUMYYA
210101151
SECTION B

SUBMITTED TO:
DR. MANOJ KUMAR
DECLARATION

I herewith declare that the project work entitled “Written Statement: Defendant’s Response to
Plaintiff’s Claims under CPC” submitted to Dr. Ram Manohar Lohiya National Law University,
Lucknow is a record of an original work done by me under the guidance of Dr. (Mr.) Manoj Kumar,
Assistant Professor of Law. This project work is submitted as an end-term project of Drafting of
Pleadings and Conveyancing for the sixth semester of B.A. LL.B. (Hons.) course. I assert the statements
made and conclusions drawn are an outcome of my research work. All the information and data
analysed; and used from various sources has been duly cited and accredited.

Sumyya
En. No. 210101151
ACKNOWLEDGEMENT

I like to use this opportunity to extend my heartiest gratitude to all the people who have helped me

develop this project. First and foremost, I would like to thank my Property Law Professor, Dr. (Mr.)

Manoj Kumar; he had been supporting me constantly, guiding me, and helping me with all my queries

and difficulties regarding this project since its fledging state. Without his enthusiasm, inspiration, and

efforts to explain even the toughest jargon most-lucidly, the successful inception of this project would

have been a Herculean task.

Next, I would like to thank the librarians of Madhu Limaye (library) for helping me find the required

resources for my research and helping me enrich my knowledge.

Finally, I would like to extend my gratitude to my batch mates and seniors who provided me; with some

unique ideas and insights which helped me make this project even better. I know that despite my

sincerest efforts, some discrepancies might have crept in. And I hope and believe; I will be forgiven for

the same.

Thanking you!

Sumyya
CONTENTS
INTRODUCTION ..................................................................................................................... 5

RULE-1 WRITTEN STATEMENT ........................................................................................... 6

PARTICULARS OF A WRITTEN STATEMENT: RULE 1A-5 & 7-10 .................................. 7

SET-OFF ORDER VIII, RULE 6 ............................................................................................ 10

1. The suit is for recovery of money ................................................................................. 11

2. The defendant’s claim must be for an ascertained sum of money ................................ 11

3. The money must be legally recoverable.. ..................................................................... 11

4. Both plaintiff and defendant must fill the same character as they fill in the plaintiffs
claim ..................................................................................................................................... 12

5. The sum claimed by way of set-off must not exceed the pecuniary limits of the court..
12

COUNTER CLAIM [ORDER VIII, RULES 6-A TO 6-G]

Object of Counter Claim- ..................................................................................................... 14

Mode of setting up counter-claim ........................................................................................ 16

DRAFT .................................................................................................................................... 16
INTRODUCTION

Written statement is actually a pleading of the defendant in the answer of the plaint filed by the
plaintiff against him. It is a reply statement of the defendant in a suit specifically denying the
allegations made against him by the plaintiff in his plaint. The provision regarding the written
statement has been provided in the Code of Civil Procedure, 1908. A written statement is a
document filed by a defendant to a suit against the plaint filed by the plaintiff. According to the
basic procedure, after the plaintiff has filed the plaint, s/he is supposed to issue summons upon
the defendant to allow him/her to file the written statement.

The expression "Written Statement" has not been defined in this code. It is a term of specific
meaning ordinarily signifying a reply to the plaint filed by the plaintiff. In other words, it is the
pleading of the defendant wherein he deals with the material fact alleged by the plaintiff in his
plaint and also states any new fact in his favour or takes legal objections against the claim of
the plaintiff. However, an additional written statement is different from a written statement. As
filing the written statement is the right of the defendant but the additional statement is based
on the discretion of the court. Further, in written statement defendant can put his case also
under the heading additional plea, and can state new facts or ground which is necessary to
defeat the opponent. If the defendant wants to put his own claim against the plaintiff he can put
it by way of set-off and counterclaim u/o 8 Rule 6 and 6A of C.P.C.

In the case of Food Corporation of India v. Yadav Engineer & Contractor1 it was held that the
expression ‘written statement’ is a term of specific connotation ordinarily signifying a reply to
the plaint filed by the plaintiff.

A written statement should be drafted carefully and artistically. All the general rules of pleading
apply to written statement also. Before proceeding to draft a written statement, it is absolutely
necessary to examine the plaint carefully. Like the plaintiff the defendant can also take number
of defences, either simply or in the alternative, even though they may be inconsistent, provided
they are maintainable at law and not embarrassing.

A written statement may be filed by the defendant or by his duly authorized agent. In the case
of more than one defendant, the common written statement filed by them must be signed by all
A written statement may be filed by the defendant or by his duly authorized agent. In the case
of more than one defendant, the common written statement filed by them must be signed by all

1
Food Corporation of India v Yadav Engineer & Contractor 1982 AIR 1302.
of them. But it is sufficient if it is verified by one of them who is aware of the facts of the case
and is in a position to file an affidavit. But a written statement filed by one defendant does not
bind other defendants.

According to Rule 1, a written statement should be filed within thirty days from the service of
the summons on him. The said period, however, according to the proviso to rule 1, can be
extended up to ninety days from the date of service of summons but the reasons for such delay
have to be recorded in writing. A defendant should present a written statement of his defence
in the said period.

RULE-1 WRITTEN STATEMENT

The defendant within 30 days from the service of summons has to file the written statement of
his defence. In case the defendant fails to file his written statement within 30 days he can file
the same on any other day as the court permits with reasons to be recorded in writing, but it
shall not be later than 90 days from the date of service of summons.

In the case of Kailash vs Nanhku & Ors.2 the Supreme court considered the question whether
the outer time limit of 90 days mentioned in order 8 Rule 1 is obligatory or directory? It was
held that Three things are clear. Firstly, a careful reading of the language in which Order VIII,
Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written
statement within 30 days from the date of service of summons on him and within the extended
time falling within 90 days. The provision does not deal with the power of the court and also
does not specifically take away the power of the court to take the written statement on record
though filed beyond the time as provided for. Secondly, the nature of the provision contained
in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object
behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of
unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the
chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the
serious inconvenience of the court faced with frequent prayers for adjournments. The object is
to expedite the hearing and not to scuttle the same. The process of justice may be speeded up
and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

It was further held that all the rules of procedure are the handmaid of justice. The language
employed by the draftsman of processual law may be liberal or stringent, but the fact remains

2
Kailash v Nanhku & Ors 2005 (4) SCC 480.
that the object of prescribing procedure is to advance the cause of justice. In an adversarial
system, no party should ordinarily be denied the opportunity of participating in the process of
justice dispensation. Unless compelled by express and specific language of the Statute, the
provisions of the CPC or any other procedural enactment ought not to be construed in a manner
which would leave the court helpless to meet extraordinary situations in the ends of justice.

In the State of Punjab and Anr. v. Shamlal Murari and Anr3, the Court approved in no
unmistakable terms the approach of moderating into wholesome directions what is regarded as
mandatory on the principle that “Processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress,
a lubricant, not a resistant in the administration of justice.

In Ghanshyam Dass and Ors. v. Dominion of India and Ors.,4 the Court reiterated the need for
interpreting a part of the adjective law dealing with procedure alone in such a manner as to
subserve and advance the cause of justice rather than to defeat it as all the laws of procedure
are based on this principle.

PARTICULARS OF A WRITTEN STATEMENT: RULE 1A-5 & 7-10

Rule 1A casts a duty on defendant to produce documents upon which he relies upon. Like a
plaintiff, a defendant is also bound to produce the documents which are in his possession and
which are in favour of his defence. If the defendant fails to produce these documents along-
with written statement then they shall not be received as evidence except without the
permission of the court. However nothing in this rule is applicable to documents reserved for
cross examination of plaintiff’s witnesses or documents handed over to witness merely to
refresh his memory. Further, this period can be extended by the court at its discretion and for
reasons which the court must provide in writing. However, the period cannot be extended
beyond 90 days.

Now, this provision and the limitation to file written statement has been a matter of debate for
a very long time and has also been subjected to several amendments. Before 1999, it was
observed by courts that the defendants do not file their written statements for more than 120
days or even sometimes for 6 months and the courts kept extending the time limit in the absence

3
State of Punjab and Anr. v. Shamlal Murari and Anr (1976) 1 SCC 719.
4
Ghanshyam Dass and Ors v Dominion of India and Ors 1984 SCR (3) 229.
of any strict provision to curtail the same. This resulted in injustice to the plaintiff, delay in
proceedings and piling up of a huge number of cases before the courts.

Hence, in 1999, an amendment was brought to the Civil Procedure Code and Rule 1 was
amended. After the amendment of 1999, the statute required the defendants to file written
statements within a period of 30 days from the receipt of summons. Though the provision was
the need of the hour, it was not very successful because of the extremely stern requirement.
There were genuine reasons for defendants to not be able to file a written statement within 30
days, so the courts were helpless. In 2000, a major amendment was brought to the Code and
the present provision was enacted as it stands today. Through the amendment of 2000, the
period of 30 days was left unchanged but the courts were provided discretion to increase the
time for a maximum period of 90 days and also record the reasons for doing the same. This
enabled sufficient time to defendants who genuinely require more time.

Rule 2 provides for new facts to be specifically pleaded. The defendant must state all the new
facts regarding the maintainability and validity of the transaction and all such other grounds of
defence, which if not raised, would take the plaintiff to surprise or would raise issues of facts
not arising out of the plaint such as fraud, limitation, release, payment, performance or facts
showing illegality.

In the case of Udhav Singh v. Madhav Singh Scindia5 it was held that Rule 2 of Order 8 of
C.P.C. is a rule of practice and convenience and justice. This procedural rule is to sub serve and
not to enslave the cause of justice. It lays down broad guidelines and not cast iron traps for the
defendant in the matter of drawing up his statement of defence. In the case of C. Abdul Shukoor
v. A.P. Rao6 it was held that whether plea raised in written statement is a or not is a matter of
construction of written statement.

Rule 3 provides that denial to be specific. The rule casts a duty on the defendant that he has to
deny the averments of the plaintiff specifically. It shall not be sufficient for a defendant in his
written statement to generally deny the grounds as alleged by the plaintiff. The defendant must
specifically deal with each and every allegation of fact which he does not admit as truth, except
damages.

5
Udhav Singh v Madhav Singh Scindia 1976 SCR (2) 246.
6
Shukoor v AP Rao 1963 AIR 1150.
In the case of Badat & Co. v. East India Trading Co.7 It was held 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.

Rule 4 deals with evasive denial. The rule states that 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.

Rule 5 provides for specific denial. It provides that every allegation of the plaint if not denied
specifically or by necessary implication or stated not to be admitted shall be considered to be
admitted except against a person with disability. The proviso of this rule casts a discretion on
the court that it may require any fact so admitted to be proved other than the admission made
by the defendant in the written statement.

In the case of Badat & Co. v. East India Trading Co. It was held that les 3, 4 and 5 of the Order
VIII of the Code of Civil- Procedure form an integrated code dealing with the manner in ,which
the allegations of fact made in a plaint has to be traversed and the legal consequences that
follow from its non-compliance. The written statement must deal specifically with each
allegation of fact made in the plaint and if the defendant denies any such fact, such denial must
not be evasive, he must answer the point of substance and if he fails to do so the said fact must
be take to be admitted.

In the case of Modula India v. Kamakshya Singh Deo8 It was held that under Order 8 Rule 5 of
the C.P.C., when there is no written statement, the averments in the plaint are to be taken as
correct and, if they are sufficient under the terms of the statute, a decree has to follow as a
matter of course. Rule 7 provides for defence founded upon separate grounds. It states that
where the defendant relies upon several distinct grounds of defence or set-off or counter-claim
founded separate and distinct facts, they shall be stated, as far as may be, separately and
distinctly. Rule 8 provides for new grounds of defence. It states that any ground of defence

8
Modula India v Kamakshya Singh Deo 1988 SCC (4) 619.
which has arisen after the institution of the suit or the presentation of a written statement
claiming a set-off or counter-claim may be raised by the defendant in his written statement.

Rule 9 deals with subsequent pleadings. It states that 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 without the permission 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 deals with procedure when a party fails to present written statement called for by court.
In case the defendant fails to present his written statement in time permitted or fixed by the
court, the court will pronounce against him or pass any such other as it thinks fit and decree
shall be drawn upon the said judgment.

SET-OFF ORDER VIII, RULE 6

Set off is reciprocal acquittal of debts. “Set-off” means a claim set up against another. It is a
crossclaim which partly offsets the original claim. It is an extinction of debts of which two
persons are reciprocally debtors to one another by the credits of which they are reciprocally
creditors to one another. Where there are mutual debts between the plaintiff and the defendant,
one debt may be settled against the other. It is a plea in defence, available to the defendant. By
adjustment, set-off either wipes out or reduces the plaintiff’s claim in a suit for recovery of
money.

In a suit for recovery of money, a defendant can stake his claim to any ascertained sum of
money legally recoverable by him from the plaintiff as a set-off against the plaintiff’s demand
if:
(a) the ascertained sum does not exceed the pecuniary jurisdiction of the court; and
(b) both parties fill the same character as they fill in the plaintiff’s case 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.

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) (1).
Where in a suit for recovery of money by the plaintiff, the defendant finds that he has also a
claim of some amount against the plaintiff, he can claim a set-off in respect of the said amount.
The doctrine of set-off may be defined as “the extinction of debts of which two persons are
reciprocally debtors to one another by the credits of which they are reciprocally creditors to
one another”. A plea of set-off is “a plea whereby a defendant acknowledges the justice of the
plaintiff’s demand, but sets up another demand of his own, to counterbalance that of the
plaintiff; either in whole or in part”. Thus, it is a “reciprocal acquittal of debts between two
persons”. The right of a defendant to claim set-off has been recognized under Rule 6. It obviates
the necessity of filing a fresh suit by the defendant.

However, the defendant is entitled to raise the plea of set-off only when following conditions
exist:

1. The suit is for recovery of money.—The plea of set-off shall be available to the
defendant only in a suit instituted against him for recovery of money. If the suit is not
a money-suit, the defendant cannot raise this plea. For instance, in a suit tor dissolution
of partnership, the defendant cannot claim set-off because it not a money-suit. But, in a
suit for ejectment of tenant on the ground of non-payment of rent, in which arrears of
rent have also been claimed, the defendant-tenant may plead set-off. However, in case
where ejectment of tenant has been prayed for but amount of unpaid rent is not
demanded, the defendant-tenant cannot raise the plea of set-off since it is no more a
money-suit. Thus, what is necessary is that one of the reliefs sought in the suit against
the defendant must be for recovery of money. In such a suit, the defendant is entitled to
raise the plea of set-off.
2. The defendant’s claim must be for an ascertained sum of money-‘It means that the
amount which the defendant claims against the plaintiff tiff to be set-off must be fixed,
definite and known. Such amount may not by the plaintiff but if it is ascertained, then
the defendant may plead set-off. For unascertained sums, the plea of set-off is not
available to the defendant under Rule 6. However, such unascertained sums may be
effectually set-off by consent of parties if the suit is compromised.
3. The money must be legally recoverable.—The term ‘legally recoverable” means that
the debtor is liable to pay the sum under any law. The defendant shall be entitled to
claim set-off in respect of such dues only which the plaintiff is bound to pay under any
law. A time-barred debt is not legally recoverable and hence set-off cannot be pleaded
for such amount.
 4. Both plaintiff and defendant must fill the same character as they fill in the
plaintiffs claim.—The defendant may plead for set-off only when both the parties i.e.,
plaintiff and defendant fill may same character as they fill in the suit. It means that the
amount in respect of which the defendant pleads set-off must be claimable from plaintiff
in the same capacity as in the suit. If the amount payable by the plaintiff to the defendant
is in the capacity of a “manager’, but the plaintiff has filed the present suit in his
personal capacity, then the defendant cannot raise the plea of set-off in respect of such
amount.
5. The sum claimed by way of set-off must not exceed the pecuniary limits of the
court.—It is necessary that the amount claimed to be set-off by the defendant is within
the pecuniary limits of the court in which the suit has been instituted.

The effect of raising the plea of set-off is that the defendant steps into the shoes of plaintiff in
respect of amount claimed by him. Thus, there are virtually two suits under the same suit-
number viz., a suit by plaintiff again: the defendant for recovery of money and a suit by
defendant against the t plaintiff claiming the amount of set-off. Both the suits are tried together.
The court pronounces final judgment in respect, both, the original claim and the set-off. The
two suits are considered to be independent of each other. Even if the suit instituted by plaintiff
is dismissed or is withdrawn, it makes no difference. The claim of defendant for amount of set-
off does not go with the suit and the court may pass a decree in favour of defendant in respect
of that sum.

COUNTER CLAIM [ORDER VIII, RULES 6-A TO 6-G]

“Counterclaim” may be defined as “a claim made by the defendant in a against the plaintiff”.
It is a claim independent of, and separable from, suit plaintiff’s claim which can be enforced
by a cross-action. It is a cause of action in favour of the defendant against the plaintiff.

In addition to pleading a set-off in a suit, the defendant may also set-up a counter-claim. The
term “counter-claim” means a claim raised by the defendant against the claim of plaintiff in a
suit. It is essentially and substantially a cross-action of the defendant. It may be described as a
cause of action accruing to defendant against the plaintiff. However, such cause of action must
accrue before filing of written statement by the defendant. As such, the defendant may set-up
a counterclaim only in respect of a claim for which the defendant can file an independent suit.
However, the defendant must specifically state in his written statement that he is setting-up a
counter-claim. Such counter-claim shall not exceed the pecuniary jurisdiction of the court.
The defendant must set-up his counter-claim as early as possible because the no counter-claim
can be raised after framing of issues and closure evidence.

One of the pleas open to a defendant to defeat the relief sought by the plaintiff against him is a
counterclaim. Counterclaim may be defined as “a claim made by the defendant in a suit against
the plaintiff”. Therefore, defendant in a suit may, in addition to his right to plead a set-off , a
counterclaim. It may be set up only in respect of a claim for which the defendant can file a
separate suit.”.” Thus, a counterclaim is substantially a cross-action.

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. A defendant in a suit may, in addition to his right of
pleading a set-off under Rule 6, also 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 his defence has expired, whether such counter-claim is
in the nature of f a claim for damages or not : provided that such counter-claim shall not exceed
the pecuniary limits of the jurisdiction of the Court. (Order V111, 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).

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 counterclaim.

Before the Amendment Act of 1976, there was no specific provision for counterclaim in the
Code. The Supreme Court, however, held the right to make a counterclaim statutory.'” It was
held that the court has power to treat the counterclaim as a cross-suit and hear the original suit
and counterclaim together if the counterclaim is properly stamped.
In the leading case of Laxmidas v. Nanabhai9, the Supreme Court observed, “The question has
therefore to be considered on principle as to whether there is anything in law—statutory or
otherwise—which precludes a court from treating a counterclaim as a plaint in a cross-suit. It
is difficult to see any. No doubt, the Code of Civil Procedure prescribes the contents of a plaint
and it might very well be that a counterclaim which is to be treated as a cross-suit might not
conform to all these requirements but this by itself is not sufficient to deny to the court the
power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for
instance, what is really a plaint in a cross-suit is made part of a written statement either by
being made an annexure to it or as part and parcel thereof, though described as a counterclaim,
there could be no legal Objection to the counter treating the same as a plaint and granting such
relief to the defendant as would have been open if the pleading had taken relief of a plaint. To
hold otherwise would be to erect what in substance is a mere defect in a form of pleading into
an instrument for denying what justice manifestly demands.”, (emphasis supplied)

Object of Counter Claim-

Before the Amendment Act of 1976, no counterclaim or set-off could be claimed except in
money suits. The Law Commission of India, however, recommended to avoid multiplicity of
proceedings, right to the defend-ant to raise a plea of set-off in addition to a counterclaim in
the same suit. The provisions relating to counterclaim thus seek to save time of courts, exclude
inconvenience to the parties to litigation, decide all disputes between the same parties avoiding
unnecessary multiplicity of judicial proceedings and prolong trials. 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.’ The purpose of the provision
enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings, save the
Court’s time and exclude the inconvenience to the parties by enabling decision in all disputes
between them in the course of the same proceedings. If the counter-claim prolongs the trial,
causes delays or complicate the otherwise smooth flow of proceedings, the court would be
justified in exercising its discretion not in favour of permitting a belated counter-claim. Usually
if the issues have already been framed and the trial has already commenced or concluded, a
counter-claim not contained in the original written statement may be refused to be taken on
record.

9
Laxmidas v Nanabhai 1964 SCR (2) 567.
The right to make a counter claim is statutory and a counter claim is not admissible in a case
which is admittedly not within the statutory provisions.

The counter-claim is treated as a plaint. Hence, the plaintiff is entitled to file a written statement
to answer the counter-claim of the defendant. If, the plaintiff prefers not to reply, the court may
pronounce judgment against him in respect of such counter-claim. If, the plaintiff contends that
the claim raised by defendant by way of counter-claim ought to be raised in an independent
suit, he may accordingly apply to the court before settlement of issues.

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
counterclaim 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.

An application for counter claim under Order VIII, Rule 6-A is not exfacie barred after filing
of written statement.’ In a suit for declaration of title and possession, defendant sought to the
WS filed, subsequently amend claiming recovery of possession, amendment alleged to be
necessitated because of tresspass by plaintiff. It was held that subsequent filing of counter claim
on basis of tresspass is not tenable. Tresspass as cause of action for filing counter claim cannot
be said to have arisen prior to filing of WS.

Similarly in Rohit Singh v. State of Bihar,’10 it was held that counter claim cannot be raised
after issues are framed and evidence is closed, further, counter-claim directed solely against
co-defendants cannot be maintained. Court cannot proceed and grant decree in favour of said

10
Rohit Singh v State of Bihar (2006) 12 SCC 734.
co-defendants only on basis that no answer has been filed to their counter-claim by other
defendants.

A counter claim was filed claiming damages for wrongful detention of goods by locking room
in her possession, 5 years after alleged locking of room. Defendant filing counter claim had
knowledge of detention of goods right from first day. It was held that counter claim was barred,
even if not Art. 91 but residuary article of Limitation Act is applied. Merely because in another
suit inventory of goods in said room was prepared that would not give rise to fresh cause of
action for respondent. Suit for damages for wrongful detention of goods is based on different
footing visa-vis a continuing wrong. Thus, limitation would run from time when property is
wrongfully taken.

Mode of setting up counter-claim

There are three modes of pleading or setting up a counter-claim in a civil suit:

(1) First, the written statement filed under Rule 1 may itself contain a counter-claim which
in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of
the plaintiff preferred in exercise of legal right conferred by Rule 6-A.
(2) Secondly, a counter-claim may be preferred by way of amendment incorporated subject
to the leave of the Court in a written statement already filed.
(3) Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9.

DRAFT

WRITTEN STATEMENT BY HUSBAND IN MAINTENANCE SUIT

IN THE COURT OF THE JUDICIAL MAGISTRATE. FIRST CLASS, _______

Maintenance Application No. ___/ 20____

_______________________________ - Applicant
- Vs.-
_______________________________ - Opponent

A WTITTEN STATEMENT ON BEHALF OF THE OPPONENT

The opponent above named submits this statement, praying to state as follows:

1. That the contents of para 1 of the application are true and correct, and hence admitted by
this opponent.

2. That the contents of para 2of the application are likewise true and correct, and hence, call
for no comments.

3. That the contents of para 3 of the application are false, baseless, frivolous, and hence,
denied by this opponent, and this opponent submits that the applicant right from the beginning
was in the habit of staying with her parents, and she practically cohabited with this opponent
hardly for a fortnight or so after the marriage, and since then, she has always had been residing
at her parents' till this date.

4. That the contents of para 4 of the application are a sheer piece of fabrication on the part of
the applicant, and this opponent submits that since the applicant, in fact, cohabited with this
opponent only for a few days, the question of begetting a child or making such wild allegations
against the opponent does not arise, and the so-called medical check-up is a false and imaginary
story.

5. That the contents of para 5 of the application are likewise totally false, and while denying
the same, this opponent does hereby reiterate that when the applicant did not cohabit with this
opponent anytime during the existence of their marriage, except and save those few days in the
beginning after the marriage, the alleged ill- treatment could not be meted out to her, and such
allegations are far away from any truth therein and do not hold water at all.

6. That the contents of para 6 of the application to the effect that the applicant had tried to go
to this opponent for cohabitation are not only totally false but also misleading, and hence,
denied by this opponent in toto and categorically, and the opponent requests this Hon'ble Court
to take this fact into consideration.
7. That the contents of para 7 of the application alleging that this opponent has contracted a
second marriage with the so-called staff nurse are vertex on the part of the applicant, and it
shows that the applicant is at a loose end to make such dirty, totally false and illegal allegations
against the opponent, and while denying the same, the opponent requests this Hon'ble Court to
put the applicant to the strict proof of the same.

8. That the contents of para 8 of the application are baseless and denied by this opponent
specifically, and what the applicant says is just perverse and exaggeration, and this opponent
says and submits that he is working as Compounder, and not as a Doctor, at _________(Name
of Place), and he is drawing a salary of Rs. 8,000/- per month, and not Rs. _____/- per month.

9. That the contents of para 9 are also totally false, baseless, frivolous, and hence, denied by
this opponent.

10. That the opponent respectfully submits for the kind and sympathetic consideration of this
Hon'ble Court that the opponent was always and is still ready and willing to maintain the
applicant, and he has never refused or neglected to maintain her, and there was no cause I of
action for the applicant to file the present application.

11. That the opponent, therefore, prays that –

(a) The application of the applicant be dismissed, and

(b) Any other orders in the interest of justice may kindly be passed.

Place

Date

Sd/-

OPPONENT

Sd/-

ADVOCATE FOR OPPONENT

 VERIFICATION

I, Shri the present opponent, do hereby state on solemn affirmation that the contents of
this statement in paras 1 to 11 are true and correct to the best of my knowledge and belief, so
I have signed here under.

Sd/-

OPPONENT

BIBLIOGRAPHY

• The Code of Civil Procedure, 1908.

• M.R. Mallick, Ganguly’s, “Civil Court: Practice and Procedure.”
• C. K. Takwani, Code of Civil Procedure.