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Report No. 163

2.16. Clause 18 of the Amendment Bill.-

(i) The proposed/substituted rule 1 in Order VIII provides that the defendant shall at or before the first hearing or within such time as the Court may permit, which shall not be beyond 30 days from the date of service of summons on the defendant, present a written statement of his defence. This aspect has been discussed and dealt with when dealing with Order V, hereinabove. For the reasons mentioned earlier, the periods prescribed for filing the written statement should be as suggested by the Law Commission while discussing the proposed amendments in Order V.

(ii) Rule 1A sought to be inserted in Order VIII is on the same lines as the proposed/substituted rule 14 of Order VII. Therefore, whatever we have said with respect to proposed rule 14 of Order VII applies in all respects to this proposal as well.

(iii) The proposed deletion of rule 8A is consistent with proposed rule 1A and is, therefore, unobjectionable except to the extent that the power of the court to permit the defendant to produce a document, which he did not produce with the written statement, should be retained with the rider that such power could be exercised only for special reasons to be recorded.

(iv) The proposed deletion of rule 9 appears to be rather inadvisable. It is one thing to say that no pleading subsequent to the written statement of a defendant shall be allowed to be presented and it is a different thing to delete rule 9 altogether. By deleting rule 9, the opportunity to file a subsequent pleading by way of defence to a set off or counter-claim would also be taken away which is a very serious thing to do. Such an opportunity available to the defendant ought not to be taken away. Neither the objects and reasons appended to the Bill nor the notes on clauses appended to the Bill furnish any reasons for the deletion of rule 9. In Smt. Shanti Rani Das Dewanjee v. Dinesh Chandra Pay (Dead) By LRs., 1937 (6) SCALE 260, it was held while referring to 1987 (3) SCC 265:

"2. It has been held by this court that right to file a counter-claim under Order VIII, rule 6A, of the Code of Civil Procedure is referable to the date of accrual of the cause of action. If the cause of action had arisen before or after the filing of the suit, and such cause of action continued upto the date of filing written statement, or extended date of filing written statement, such counter-claim can be filed even after filing the written statement."

In Shri Jag Mohan Chawla v. Dera Radha Swami Satsang, 1996 (4) SCALE 585 (567), it was observed regarding the limitations under rule 6A:-

"5. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit.

The Law Commission is, therefore, of the opinion that either the proposal to delete rule 9 may be dropped or it should be so worded that a pleading subsequent to the written statement of a defendant shall be permitted only by way of defence to a set off or by way of a counter-claim.

(v) The proposal to delete rule 10 of Order VIII means that the court is now free to make such order as it thinks fit on the failure of the defendant to file a written statement. Probably, the idea behind the deletion is that rule 10 is superfluous since it states the obvious. May be, rule 10 is more in the nature of guidance to the court. On the failure of the defendant to file the written statement, it is open to the court either to pronounce judgment against the defendant or to make such appropriate order as it thinks fit in the facts and circumstances of the case. Indeed, rule 10 does not contribute in any manner to the delay in disposal of suits. May be, it would be more appropriate to retain the rule than to delete it.



The Code of Civil Procedure (Amendment) Bill, 1997 Back




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