Written Statement : How to draft it ?
A written statement is the pleading of the defendant wherein he deals with every material fact alleged by the plaintiff along with any ne facts in his favour or takes legal objections against the claim of the plaintiff.
Pleading consists of Plaint and Written statement.
Written statement is the pleading of the defendant , It is a para-wise reply to the plaint of the plaintiff. In the written statement, the defendant deals with every material fact alleged by the plaintiff in his plaint. He also states any new facts which are in his favour and state his objections against the claim of the plaintiff.
Importance of filing a written statement cannot be underestimated. The reason is that as per settled law, a case different than the one pleaded in the written statement cannot be set up at trial.
A written statement may be filed by the defendant or by his duly constituted agent. Where there are several defendants and a common written statement is filed by them, it must be signed by all of them. It is, however, 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. Every defendant has a right to file a written statement. This is in accordance with the doctrine of natural justice. But a written statement filed by one defendant does not bind other defendants.
Order 8 of the Civil procedure code contemplates the rules regarding written statements, which are as follows :-
Rule 1 , Order 8: This rules states that a defendant should within thirty days from the service of summons on him, present a written statement of his defence. The said period under the proviso to the said rule, can be extended up to 90 days. It has, however, been held that the proviso to Rule 1 is discretionary in nature and the court has discretion to allow the defendant to file a written statement beyond that period by recording reasons.
A proviso was introduced vide Act No.4 of 2016 as follows:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.
Case Laws
Kailash v. Nankhu 2005: The Supreme Court was called upon to consider whether the time-limit of 90 days prescribed by the proviso to Rule I of Order 8 for filing written statement by the defendant was mandatory or merely directory.
Mohammad Yusuf vs Faij Mohammad & Ors 2009 3 SCC 513 :In this case Supreme Court held that allowing time to the defendant to file written statement without assigning reasons cannot be justified.
Atcom Technologies Ltd vs Y.A. Chunawla and Company 2018 6 SCC 639:It was held by the Hon’ble Supreme Court that the proviso to Rule I is discretionary in nature and the court has discretion to allow the defendant to file a written statement beyond that period by recording reasons.
SCG Contracts (India) Private Limited v. K.S. Chamankar Infrastructure Private Limited and Ors, 2019,12 SCC 210: It was held that the Commercial Court had no power to extend the time beyond the period of 120 days.
- Formal Portion of Written Statement:Written statement of the defendant shall bear the same name of the court, number of the suit and the parties as it is in the plaint. In other words, the heading and title of the written statement shall remain the same as it is in the plaint except in case of more than one party to the plaint or the written statement.? In such cases, the name of only one may be written with the addition of "and another", or "and others", as the case may be. After names of the parties, some words must be added by the defendant to show on whose behalf this written statement has been filed like "Written Statement on behalf of all the defendants" or "Written Statement on behalf of defendant no. 1" or "Written Statement on behalf of the plaintiff in reply to defendant's claim for a set off" This is followed by the words "the defendant states as follows" or "respectfully showeth."
- Body of Written Statement:The body of the written statement constitutes all the defences which may be taken up by the defendant. Some special rules with respect to defences are:
A. Preliminary objections : As per Rule 2 of Order 8 , A defendant must state by his pleading all the matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defences as, 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 the facts showing illegality.
Other preliminary objections which can raise the defendant are :
- Plaint doesn’t disclose a cause of action
- Plaintiff has concealed material facts from the Court
- Suit of plaintiff is barred under limitation act
- Suit of plaintiff is barred by Res Judicata
On all the aforementioned grounds defendant can raise the points and request the court to dismiss the Suit.
B. Admissions and Denials:After raising the preliminary objections in point of law, the defendant should take up each and every para of the plaint. Every allegation of the fact in the plaint should be either admitted or denied by the defendant. In legal language such admission or denial is called "traverse". With regard to admissions and denials, there are certain rules which are as follows:
- Denial to be specific Rule 3 Order 8 : It shall not be sufficient for the 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.It is a basic concept of pleadings that a defendant has to deny specifically every averment made in the plaint if he chose to dispute the same. A non-specific or evasive denial in written statement may be taken as an admission of plaint facts.
Case Law
Makhan Lal Bangal vs Manas Bhunia &Ors 2001 AIR SCW 90 :When there is no specific denial, it will be inferred that there is an admission by necessary implication and there is no need of framing an issue and there is no need for recording of evidence on those issues.
- Denial not to be evasive (Rule 4 Order 8 ): Where the defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Allegation of facts in the plaint should be denied very clearly, specifically and explicitly, e.g., it would not be sufficient for the defendant to say that "he denies that he received Rs. 1000 from the plaintiff." Here he must state that "the defendant denies that he received Rs 1000 or any part thereof from the plaintiff." In the same way, if the plaintiff alleges that the defendant offered to his manager a bribe of Rs. 15,000 on 15 July, 2011 and defendant in his written statement states that he did not offer to the plaintiff s manager a bribe of Rs.15, 000 on 15th July, 2011, the denial is evasive, because it may imply that he offered the bribe on any other date or a bribe of different amount. The point of substance here is not the precise amount of bribe or the day when it was offered. Since the point of substance is offer of bribe, it must be specifically denied and defendant should state that he never offered a bribe of Rs 15,000 or of any other sum, on any day, at any place, to the plaintiff's manager as alleged.
- Constructive admission: As discussed earlier, defendant is bound to admit or deny each and every material fact alleged by the plaintiff. If the defendant fails to deny any allegation of fact in the plaint either specifically or by implication or he does not say that he does not admit this fact, then it shall taken to be admitted except as against a person under disability. But even in such a case court may require the fact to be proved otherwise than by such admission. If one does not make it clear in his written statement that he does not admit a particular fact, he runs the risk of being taken to have admitted it. This is known as the rule of constructive admission. This rule further requires that every compound sentence in the plaint must be singled out by the defendant and denied separately, e.g., the allegation in the plaint is, "the defendant took possession of the plaintiff's house." Here, it would not be sufficient to state that, "the defendant denies that he took possession of the plaintiff's house." If he wants to deny both the facts of having taken the possession of the house as well as the plaintiff's ownership of the house, he must expressly state:
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-
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- the defendant never took possession of the said house and
- the said house is not of the plaintiff.
C. Dilatory Pleas:Dilatory pleas are pleas involving time and these pleas must be taken at the earliest possible opportunity before the pleas on merits are taken e.g the pleas regarding minority of the plaintiff or the defendant or the plea that a certain person is necessary party to the suit and should be joined as a party or plea regarding insufficiency of court fee paid by the plaintiff are all dilatory pleas.It is in the interest of justice that these questions should be decided first before proceeding with the trial of the case on merits.
D. Special Defences :
- Limitation: Plea of limitation is a complete defence and should be raised prominently in the written statement. A plea of limitation should be raised in the following form, "The suit is barred by article--of the second schedule to Limitation Act, 1963."
- Jurisdiction: The plea of jurisdiction should be raised in the written statement and the facts on which such plea is based should also be specifically set forth like "The defendant denies that he resides within the jurisdiction of this court, hence this court has no jurisdiction to try the suit".
- Confession and avoidance: Plea of confession and avoidance is taken up by the defendant when he admits a particular fact alleged by the plaintiff but at the same time tries to avoid his liability by setting up certain facts like he was induced to enter into contract either by coercion, undue influence or fraud.
The written Statement on Behalf of the Defendant’s format is given below.
IN THE COURT _____________OF CIVIL JUDGE
(DISTRICT __________), ____________
SUIT NO. __________ OF 20XX
X_______________ …. PLAINTIFF
VERSUS
Y_________________ ….. DEFENDANT
WRITTEN STATEMENT OF BEHALF OF THE DEFENDANT
MOST RESPECTFULLY SHOWETH:
PRELIMINARY OBJECTIONS:
1. That the suit is barred by limitation under Article _________ of the Limitation Act and is liable to be dismissed on this short ground alone.
2. That this Hon’ble Court has no jurisdiction to entertain and try this suit because ______________
3. That the suit has not been properly valued for the purpose of court fees and jurisdiction and is therefore liable to be rejected outrightly.
4. That there is absolutely no cause of action in favour of the Plaintiff and against the Defendant. The suit is therefore liable to be rejected on this ground also.
5. That the suit is bad for non-joinder of necessary parties, namely _________________
6. That the suit is bad for mis-joinder of Z.
7. That the suit is barred by the decree dated _____________ passed in suit No. __________ titled Y Versus X by Sh. _______________, Sub-Judge, ________, The present suit is therefore barred by the principle of res-judicata and therefore liable to be dismissed on this short ground alone.
8. That the suit is liable to be stayed as a previously instituted suit between the parties bearing No. ________ is pending in the Court of Sh. _____________, Sub-Judge, _________
9. That the suit has not been properly verified in accordance with law.
10. That the Plaintiff’s suit for permanent injunction is barred by Section 41 (h) of the Specific Relief Act since a more efficacious remedy is available to the Plaintiff. The Plaintiff has alleged breach of contract by the Defendant. Assuming, though not admitting, that Defendant has committed any alleged breach, the remedy available to Plaintiff is by way of the suit for specific performance and not sent for specific performance.
11. That the Plaintiff’s suit for a permanent injunction is also barred by Section 41 (i) of the Specific Relief Act because he has not approached this Hon’ble Court with clean hands and his conduct has been most unfair, dishonest and tainted with illegality.
12. That the Plaintiff’s suit for declaration is barred by Section 34 of the Special Relief Act as the plaintiff has omitted to claim further consequential relief available to him.
13. That the suit is barred by Section 14 of the Specific Relief Act as the contract of personal service cannot be enforced.
14. That the suit is liable to be dismissed outrightly as the Plaintiff has not given the mandatory notice under Section 80 of the Code of Civil Procedure/Section 14 (1) (a).
15. That the suit is liable to be dismissed as the Plaintiff firm is not registered under Section 69 of the Indian Partnership Act and as such is not competent to institute this suit.
16. That the present suit is barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988 and is therefore liable to be dismissed outrightly.
ON MERITS: Without prejudice to the preliminary objections stated above, the reply on merits, which is without prejudice to one another, is as under-
1. That para 1 of the plaint is correct and is admitted.
2. That the contents of para 2 of the plaint are denied for want of knowledge. The Plaintiff is put to the strict proof of each and every allegation made in the para under reply.
3. That the contents of para 3 of the plaint are absolutely incorrect and are denied. It is specifically denied that the Plaintiff is the owner of the suit properly. As a matter of fact, Mr. N is the owner of the suit properly.
4. That with respect to para 4 of the plaint, it is correct that the Defendant is in possession of the suit properly. However, the remaining contents of the para under reply are absolutely incorrect and are denied. It is specifically denied that ___________ 5-10. (Each and every allegation must be replied to specifically depending upon the facts of each case. The above reply on merits is therefore only illustrative in nature.)
5. That para 11 of the plaint is incorrect and is denied. There is no cause of action in favour of the Plaintiff and against the Defendant because ____________ The Plaintiff is therefore liable to be rejected outrightly.
6. That para 21 is not admitted. This Hon’ble Court has no jurisdiction to entertain this suit because the subject matter of this suit exceeds the pecuniary jurisdiction of this Hon’ble Court.
7. The para 13 is not admitted. The suit has not been properly valued for the purpose of court fees and jurisdiction. According to the Defendant, the correct valuation of the suit is Rs ____________
PRAYER: It is, therefore most respectfully prayed that this Hon’ble Court may be pleased to:
a) Dismiss the suit of the plaintiff.
b) Award costs to the defendant.
c) Pass any other just and equitable order as deemed fit in the interest of justice.
DEFENDANT THROUGH COUNSEL
Place________
DATE_________
ADVOCATE VERIFICATION:
Verification at _______ on _______ day ________ of, 20XX that the contents of paras 1 to ____ Of the preliminary objection and para ____to _____ of reply on merits are true to my personal knowledge and those of paras _____ to _____ of preliminary objection and para _____to _____ of reply on merits are true & correct on the basis of legal advice received and believed to be true.
DEFENDANT
Anil Sharma |
2024-05-17 01:27:52 |
