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Report No. 54

Chapter 8

Written Statement and Set-Off

Introductory

8.1. The reply of the defendant, to the plaint, which is called "written statement of his defence", is dealt with in Order 8. A written statement may be filed; but, if the court so requires, it must be filed within the time permitted by the court. Order 8, rule 1 so provides.

8.2. The mode of denial of allegations in the plaint occupies rules 2 to 5 of this Order; set-off is dealt with in rules 6 and 7, and rule 8 permits the defendant to take any new ground of defence at a later stage. Ordinarily, the plaint and the statement of defence are the only pleadings allowed; but relaxation of this rule is permissible under rule 9. The procedure to be adopted when a party fails to present a written statement before the court, is dealt in rule 10-a rule which has created some controversy.

Order 8, rule 1 and obligatory written statements

8.3. It was noted in the earlier Report1 that a recommendation had been made in the Report on the reform of judicial administration to make the filing of the written statement obligatory. The Commission, however, thought that this might work hardship.

1. 27th Report, note on Order 8, rule 1 and obligatory written statement.

Recommendation

8.4. We have re-examined the matter, and are of the view that such a provision should be inserted. In the absence of a proper pleading by the defendant, it is difficult to proceed with the suit, and in fact, the whole scheme of the Code postulates that there should be a written statement which constitutes the foundation of the defence, if the defendant chooses to participate in the proceedings. The time has now come when a written statement should be obligatory, and we recommend accordingly, that Order 8, rule 1, should be revised as follows:

"The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence."

Order 8, rule 5

8.5. Under Order 8, rule 5, an allegation of a fact made in the plaint, if not denied, or not 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 was considered in the earlier Reports1. No amendment to the rule was, however, proposed, as it was felt that on the language of the rule, it should not apply to such cases.

1. 27the Report, Notes on Order 8, rule 5.

8.6. However, we are taking a different view on the subject, and are of opinion that such a provision should be made. If the defendant does not file a pleading, the court should have a discretion to treat the allegations in the plaint as admitted. This is necessary in the interests of expedition, and should not in our view, cause any serious hardship. Since the present position1 is that Order 8, rule 5, does not apply, where there is no written statement, an amendment is necessary if effect is to be given to our view. At the same time, we would like to emphasise that the court should, in exercising its discretion, consider whether the defendant has engaged counsel or could have engaged counsel.

1. Hardayal Chaman Lal v. Union of India, AIR 1969 Punj 329 (review cases).

Recommendation

8.7. We, therefore, recommend that Order 8, rule 5, should be re-numbered as sub-rule (1), and the following sub-rules should be added in Order 8, rule 5:-

"(2) Where the defendant has not filed a pleading, it shall be lawful for the court to pass a judgment on the basis of the allegations of fact in the plaint, except as against a person under disability; but the court may, in its discretion, require any such allegations of 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 bearing the same date as the day on which the judgment was pronounced".



The Code of Civil Procedure, 1908 Back




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