• Written statement is the defense of the defendant.

Drafting Written Statement

Dr. Zeba Azmat

Definition:

• Written statement is the defense of the defendant.

• a para wise reply of the plaint, in which the defendant either denies or admits each and every claim and

allegation , drawn up and filed by the plaintiff against

him in the plaint.

• Order VIII, Rule 1: Written Statement should be submitted within 30 days f rom the date of service of summons on him,

but if defendant is unable to than

he shall be allowed to file the same on such other day, as may be specified by the Court, but which shall not be later than ninety days from the date of service of summons“

(

.)

•

Order VIII Rule 1A ,1908 0f C.P.C:

Duty of defendant to produce document upon which relief is claimed or relied upon by him

• “Where the defendant bases his defence upon a document, in support of his defense or claim, he shall enter such

document in a list, and shall produce it in Court when the written statement is presented by him…”

• 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 2.):-New Facts Must be Specially Pleaded

• Provision of Additional Pleas in the Written Statement, whereby defendant can bring all such facts into the knowledge of the court which are kept hidden by the plaintiff, or which can make the plaint void or voidable

• Written statement should give para wise reply to each and every fact because the facts which remain unanswered by the defendant, it will be presumed that such facts are admitted by the defendant. In general the fact which is taken to be admitted need not to be proved.

(Order VIII Rule 3, 4 and 5 1908 of CPC contain the provision regarding denial):-

• Order VIII Rule 3. (Denial to be Specific) requires that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages,

• Otherwise, the Court is entitled to draw an inference that the same has been admitted.

• Rule 4: denial should not be evasive

• Denial should be clear and specific without any ambiguity

• Rule 5

Except

• It will not be not be applicable to person under disability. (presumption of constructive admission)

• Instead of having implied admission of the unanswered fact, the court may require the

plaintiff to prove the allegation made in the plaint by sufficient and reliable evidence. (upon discretion and satisfaction of the court)

• (2) Where the defendant has not filed a pleading, (Written Statement) it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

• (3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

• (4) Whenever a judgment is pronounced under this

rule, a decree shall be drawn up in accordance with

such judgment and such decree shall bear the date on

which the judgment was pronounced.

• Provision of order 8 Rule 6 (Set-Off) and 6A (counter- claim)of C.P.C 1908, gives the way of set-off and counterclaim to the defendant.

• Rule 6A : 1. A defendant may, if he so require, can bring counter claim against the claim of the plaintiff and may claim for set-off portion (money).

• Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

2. Can be made in the same pleading so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

3. The plaintiff (respondent) shall be at liberty to file a written statement in answer to the counterclaim of the defendant (petitioner) within such period as may be fixed by the Court.

4. The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaint.

• 7. (Order VIII Rule 7):

Defence or set off founded on separate grounds-

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

• Rule 8:

New ground of defence (Order VIII Rule 8):

• 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 or plaintiff, as the case may be, (in separate application, with due permission of the court)

• Subsequent pleadings (Order VIII Rule 9):

• No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit: but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same

• Under Order VIII Rule 10 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, 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. This rule gives a discretion to the Court either to pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit.“

• (Balraj Taneja & Another v. Sunil Madan & Another [(1999) 8 SCC 396) held …that merely because written statement is not filed, the Court should not proceed to pass judgment blindly and observed:

"The court has not to act blindly upon the admission of a fact made by the Plaintiff in his plaint nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant. It is a matter of the courts satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement."

• Order VIII, 1908 of CPC, laid down the particulars/Essentials of written statement:

• a) the name of the court in which the suit is brought; (Same as in plaint)

• b) the name , description and place of residence of the plaintiff;

(Same as in Plaint)

• c) the name , description and place of residence of the defendant, so far as they can be ascertained; (Same as in Plaint)

• d) where the defendant is a minor or a person of unsound mind , a statement to that effect; (a description of guardian ad litem )

• in case of minor or unsound mind person,

• A B, son of……aged about………r/o………, a minor, by C D, son of……aged about…………Ocuu………r/o…………his next friend

………Plaintiff’

versus

E F, son of……aged about………r/o…… , a minor, through his guardian GH, son of………aged about………r/o…………..., appointed by the order of the court (name of the court ) ………..Defendant’

• e) para-wise reply of the plaint as admitted or denied, so far as the case admits, (denial should be specific and not evasive);

• f) Prayer

• g) additional pleas;

• h) signing and Verification .

• Order VI, Rule 14, CPC 1908 Deals with Signing of Pleading

• Order VI, Rule 15, CPC 1908 Deals with verification of Pleading

PLAINT

IN THE COURT OF CIVIL JUDGE (JUNIOR DIVISION) , AT KANPUR Suit No. ……/2017

Rohit Kumar S/o Mohit Kumar , aged about 45 years, Occupation: hotel keeper, R/O, A5, Skyhigh Residency, GG Road, Kanpur

...Plaintiff Versus

Raj Kumar, s/o___ , aged about____, occupation:landlord, R/o______

...Defendant

Suit for the recovery of Rs.500000/- (Five Lakh) as Compensation for wrongful seizure of Plaintiff’s goods

The abovementioned Plaintiff humbly submits as under:

1. That the Plaintiff was carrying on business as hotel-keeper and was running a restaurant at Kanpur, for more than four years past, under the name and style of “Paradise Hotel and Restaurant”.

2. That the building in which the said business was being carried on by the Plaintiff belonged to the Defendant under whom the Plaintiff was a tenant at Rs.5000 per mensem.

3. That all the goods, like, crockery, utensils, almirah, refrigerator, furniture, etc. used for running the said business belonged to the Plaintiff and not to the defendant.

4. That in order to injure the Plaintiff, and to extort more rent from the Plaintiff, the Defendant started misbehaving with the plaintiff.

5. That inspite of the protests of the Plaintiff, the Defendant forcefully dispossessed the Plaintiff from the said premises and seized Plaintiff’s abovementioned goods.

6. That on account of the wrongful seizure of Plaintiff’s goods in the circumstances mentioned above, the Plaintiff has suffered a pecuniary loss of Rs.500000/- which the Defendant is liable to pay to the Plaintiff but the Defendant has refused to pay the same.

7. That the cause of action arose on 05.09.2017(Fifth day of September 2017), when the goods of the Plaintiff were seized by the Defendant, at the note of its execution at Kanpur, hence the court has jurisdiction.

8. That the value of the suit for the purpose of court-fee and jurisdiction is Rs.500000/-, hence the court has jurisdiction.

4. Plaintiff prays for the following reliefs:

a) that a decree for the payment of Rs.500000, be passed in

favour of the plaintiff and against defendant with costs of the suit

b) any other relief which the court deems fit in the interest of justice.

Place_________ Sd- Sd-

Date_________ Counsel Plaintiff

Verification

I Mr. Rohit Kumar, S/o Mr. Mohit Kumar, the above mentioned plaintiff, do hereby verify that the contents of Para 1 to 6 are true and correct to the best of my knowledge and belief and the contents of the remaining paras are on the basis of information and legal advice from my counsel which I believe to be true, and verify on this the Fifth day of November, 2017 at Kanpur.

PLAINTIFF

WRITTEN STATEMENT

IN THE COURT OF CIVIL JUDGE ( JUNIOR DIVISION), AT KANPUR Suit No. ……/2017

Rohit Kumar S/o Mohit Kumar , aged about 45 years, Occupation: hotel keeper, R/O, A5, Skyhigh Residency, GG Road, Kanpur

...Plaintiff Versus

Raj Kumar, s/o___ , aged about____, occupation:landlord, R/o______

...Defendant

Suit for the recovery of Rs.500000/- (Five Lakh) as Compensation for wrongful seizure of Plaintiff’s goods

• The abovementioned Defendant humbly submits as under:

• 1) that the contents of Para 1 are admitted;

• 2) that the contents of Para 2 are admitted;

• 3) that the contents of para 3 are denied. The goods mentioned in para 3 , used for running the said business, belonged and entirely belonged to the defendant and not to the plaintiff and not any part of the goods in question. Plaintiff may be put to proof;

• 4) that the contents of para 4 are strongly denied; as these are false, fictitious and frivolous. The plaintiff may be put to proof;

• 5) that para 5 is accepted to the fact that the Plaintiff was dispossessed by the Defendant from the said premises, but rest of the contents of para5 are denied as they are the distortion of facts;

• 6) that the contents of para 6 are denied vehemently.

These are just a pack of lies and plaintiff is not entitled for any compensation as plaintiff has not suffered any pecuniary loss. Plaintiff may be put to proof.

• 7 Para 6 is denied. The jurisdiction of the court is however admitted.

• 8 Para 8 is legal and hence needs no reply, however the jurisdiction of the court is admitted.

• 9 The plaintiff is not entitled for any relief. It is therefore

prayed that the suit may be dismissed with cost.

• Additional Pleas

• The abovementioned Defendant do submits the additional pleas as under:

• 1) that the defendant was himself carrying on the business of Hotel and Restaurant in the said premises;

2) that because of certain health reasons the defendant handed over

the business with building as well as the goods in questions on rent of Rs.5000 per mensum to the plaintiff;

3) that A deed of such rent was executed between Plaintiff and Defendant on 1^st day of May 2017;

4) that the Plaintiff has stop paying the rent from August 2017, for which notice was served to the plaintiff;

5) that on 5^th Day of September 2017, the defendant asked the Plaintiff, without using any force, to evict the said building

Place_________ Sd- Sd-

Date_________ Counsel Plaintiff

Verification

I Mr._______, S/o Mr.______, the above mentioned defendant, do hereby verify that the contents of Para 1 to 6 and Additional Pleas are true and correct to the best of my knowledge and belief and the contents of the para no. 7-9 are on the basis of information and legal advice from my counsel which I believe to be true, and verify this on this 15th day of December, 2017 at Kanpur.

sd-

Defendant