Report No. 27
Order VIII, rule 1
1. A provision regarding filing of a list of documents by the defendant with the written statement has been added. This carries out the recommendation made in the Fourteenth Report1, with an important modification, namely, no provision has been proposed for production of documents by the defendant with the written statement.
2. Such a provision was recommended by the Civil Justice Committee also2. Local Amendments on the subject3 may be seen. Where the list is not filed with the written statement, some time should be allowed by the court for filing. The exact time will be left to the court under the proposed rule4.
1. 14th Report, Vol. I.
2. Civil Justice Committee (1924-25) Report, p. 39.
3. See Allahabad, Punjab, Madhya Pradesh, Orissa and Kerala Amendments to Order 8, rule 1.
4. Punjab Amendment fixes 10 days.
Order VIII, rule 1 and failure to file written statement
1. In one decision1, the Madras High Court has pointed out one defect in relation to Order VIII, rule 1, namely, that while a person who fails to comply with an order under Order VIII, rule 9 suffers penalty under rule 10, the same penalty is not provided for on default under Order VIII, rule 1. The High Court observed, that this was a defect which should be set right, if necessary, by appropriate amendment.
2. Certain other points have also arisen as to effect of failure to file a written statement. It would therefore be convenient briefly to enumerate all those points:-
(i) If a person fails to file a written statement, when called upon to do so by the court under rule 1, does the provision in rule 10 of Order VIII apply? The Madras view2 is, that rule 10 does not apply, because the words "so required" in rule 10, refer back only to rule 9 and not to rule 1. On this view, the court has no jurisdiction to pronounce judgment against a defendant who has failed to file a written statement under rule 1. The contrary seems to have been assumed by the Allahabad High Court3.
(ii) Another question is, whether, if the defendant has not put in any written statement, does Order VIII, rule 5 apply? The Calcutta view is, that Order VIII, rule 5 does not apply where the defendant has not put in any written statement at all, and further, that the verification of the plaint is not evidence on which a suit should be decreed whether the defendant did or did not appear4. According to the Calcutta view, rule 5 is merely "a rule of construction of the defendant's pleading". (Woodroffe J.). This is also the Lahore view.5
The Patna High Court has also held,6 that a mere omission to file a written statement does not amount to admission of the facts stated in the plaint.
But the Bombay High Court has expressed emphatic dissent from the Calcutta view, and held7 that Order VIII, rule 5 which is similar in substance to R.S.C. Order XIX, rule 13 covers also a case where the defendant files no pleading. If there is no pleading of the defendant, the court observed, obviously "it could not contain any denial or non-admission.
The Bombay High Court8 has also held, that failure to file a written statement means that the defendant admits the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint, for instance that the plaint discloses no cause of action or that the claim is time-barred.
(iii) Another question that has arisen is whether, in case of failure to file a written statement, the court can proceed ex parte. One view is that it can9, while the Bombay view is that an order that the suit should proceed ex parte is not justified10.
The Fourteenth Report11 contemplates that if the written statement is not filed by the date fixed for the settlement of issues, the matter may be dealt with ex parte.
3. Since most High Courts have held that failure to file a written statement does not amount to admission of facts stated in the plaint, the choice is between two courses, namely, either the court may be permitted to proceed ex parte as suggested in the Fourteenth Report, or it may be empowered to proceed under rule 10-"the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit". The latter course has been adopted, as logical12.
1. Nagaratnam v. Kamalathammal, ILR 194 Mad 866: AIR 1945 Mad 299 (300) (King and Bell 11.).
2. Nagaratnam v. Kamalathammal, ILR 194 Mad 866: AIR 1945 Mad 299 (300) (King and Bell JJ.).
3. Gopi Charan v. Ram Prasad, AIR 195 All 283 (284).
4. J.B. Ross and Co. v. C.R. Striven, 1916 ILR 43 Cal 1001 (1010): AIR 1917 Cal 269 (Sanderson C. J., Woodroffe and Mookerjee JJ.).
5. Narendra Singh v. C.M. King, AIR 1928 Lah 769.
6. Sonavati v. Kirtyanand, AIR 1935 Pat 306 (331), (Fazl Ali and Saunders JJ.).
7. Shriram v. Shriram, ILR 60 Bom 788: AIR 1936 Bom 285 (Beaumont C.J. and Rangnekar J.) explained in AIR 1943 Born 387.
8. Vinayak v. Chintaman, AIR 1938 Bom 470 (471) (Beaumont C.J. and Wassodew J.).
9. This seems to have been assumed in AIR 1957 All 283.
10. Vinayak v. Chintaman, AIR 1938 Born 470.
11. 14th Report, Vol. I.
12. See the amendment proposed to Order 8, rule 10.
Order VIII, rule 2, and joint promisors
A recommendation has been made in an earlier report of the Law Commission1 to the effect that the question whether a joint promisor can, when sued for contribution by his co-promisor, resist the suit, on the ground that in the creditor's suit the co-promisor suing for contribution did not (negligently or otherwise) set up defences which could have been legitimately raised to defeat the claim, has been considered. This, it is felt, is a matter of substantive law, and need not be dealt with in a Code dealing with procedure.
2. 13th Report (Contract Act), para. 70.
Order VIII, rule 5
Order VIII, rule 5 provides (roughly) that an allegation of fact in the plaint, if not denied, etc., or stated to be not admitted in the pleading of the defendant, is to be taken as admitted. Whether this rule applies in a case where the defendant has not filed a pleading at all, is a question that has arisen1. No amendment to the rule is, however, proposed, as it is felt that on the language of the rule, it should not apply to such cases.
3. See notes under Order 8, rule 1.
Order VIII, rules 6A to 6G
These are new. The object is to provide for counter-claim by the defendant1.
The rules have been drafted mainly on the lines of rules 137 to 146 of the Rules of the Bombay High Court (Original Side), 1957, pages 38-39. Those rules embody many points which have been clarified by case-law on the corresponding rules in the R.S.C. See also Order VIII, rules 13 to 22 inserted for Bombay City Civil Court.
The provision that even after judgment in the suit is given, the counter-claim can be proceeded with, has been taken from the Revised R.S.C.2.
Counter-claim against a person who is not a party to the suit, has been excluded, to avoid complications.
It is considered unnecessary to say anything about "same character". Rule 6A(3) has been inserted for comprehensiveness, and will enable the court to apply the rules regarding court-fees (Order VII, rule 11), etc.
1. See also the body of the Report.
2. R.S.C. (Revision) 1962, Order 15, rule 2(3).
Order VIII, rule 7
This is consequential1.
1. See Order 8, rule 6A-6G (counter-claim).
Order VIII, rule 8
This is consequential1.
1. See Order 8, rule 6A-6G (counter-claim).
Order VIII, rule 9
This is consequential1.
1. See Order 8, rule 6A-6G (counter-claim).
Order VIII, rule 10
Order VIII rule 10 deals with the procedure to be followed when a party fails to present a written statement called for by the court, and begins thus:-
"Where any party from whom a written statement is so required, fails to present the same...." Now, the word "so" has been construed as limiting the operation of the rule to failure to file a written statement that was demanded under Order VIII, rule 9, and not as covering the more frequent case of a written statement demanded under Order VIII, rule 1. This is a lacuna1. The object of the proposed amendment is to remove this lacuna.
1. See notes to Order 8, rule 1.
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