The term written statement has not been defined under the code. But it can be defined as a pleading of the defendant wherein he deals with every material fact alleged by the plaintiff in the plaint and also states new facts and legal objections which are in his favour and against the claim of plaintiff.
In the case of Food Corporation of India v. Yadav Engineer & Contractor (1982) 2 SCC 499 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.
The written statement is filed by the defendant or his duly constituted agent. Where there are several defendants, they can either file different written statement individually or one written statement, signed by all of them. But it can be verified by one of them who is aware of the situation. A written statement filed by one defendant does not binds the other defendants.
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. (AIR 2005 SC 2441) 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 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 Anr. (1976) 1 SCC 719, 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. (1984) 3 SCC 46, the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to sub- serve 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.
2. 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 Scindia ( AIR 1976 SC 744)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. Rao (AIR 1963 SC 1150) it was held that whether plea raised in written statement is a or not is a matter of construction of written statement.
3. 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.
In the case of Badat & Co. v. East India Trading Co. (AIR 1964 SC 538) 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.
4. 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.
5. 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. (AIR 1964 SC 538) 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 Deo (AIR 1989 SC 162) 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.
6. 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.
7. Rule 8 provides for new grounds of defence. It states that any ground of defence 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.
8. 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.
9. 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.