ORDER 8, RULE 1-13

ORDER VIII:   WRITTEN STATEMENT AND SET-OFF

Rule 1. Written statement.

The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence [--] [Provided that the period allowed for filing the written statement shall not ordinarily exceed  [thirty] days.]

Rule 2. New facts must be specially pleaded.

The defendant must raise by his pleading all 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 defence 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 facts showing illegality.

Rule 3. Denial to be specific.

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.

Rule 4. Evasive denial.

Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

Rule 5. Specific denial.

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. 6. Particular of set-off to be given in written statement.

(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

(2) Effect of Set-off. The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

Illustrations

• (a) A bequeaths Rs.2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B's effect. C pays Rs.1,000 as surety for D: then D sues C for the legacy. C cannot set-off the debt of Rs.1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs.1,000.
• (b) A dies intestate and in debt to B.C takes out administration to A's effects and B buys part of the effects from C. In a suit for the purchase- money by C against B, the latter cannot set- off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A 
• (c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B’s goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.
• (d) A sues B on a bill of exchange for Rs.500, B holds a judgment against A for Rs.1,000. The two claims being both definite pecuniary demands may be set-off.
• (e) A sues B for compensation on account of trespass. B holds a promissory note for Rs.1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so for, as soon as A recovers, both sums as definite pecuniary demands.
• (f) A and B sue C for Rs.1,000, C cannot set-off a debt due to him by A alone.
• (g) A sues B and C for Rs.1,000. B cannot set-off a debt due to him alone by A.
• (h) A owes the partnership firm of B and C Rs.1,000. B dies, leaving C surviving. A sues C for a debt of Rs.1,500 due in his separate character. C may set-off the debt of Rs.1,000.

Rule 7. Defence or set-off founded on separate grounds.

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

Rule 8. New ground of defence.

Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be, in his written statement.

Rule 9. Subsequent Pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off 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 for presenting the same.

Rule 10. Procedure when party fails to present written statement called for by Court.

Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. 

[Rule 11. Address for service.

(1) Every party, whether original, added or substituted, who appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service.

(2) Such address shall be entered in the Register of suits to be maintained under Order IV, rule 2. (3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under this rule.

Rule 12. Consequences of failure to file address.

(1) Where a party fails to file an address for service as provided in the preceding rule,  [the court may direct him to file such address and if he fails to do so after giving him opportunity to file the address] he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended.

(2) The Court may pass an order under sub-rule (1) suo moto or on the application of any party.

Rule 13. List of legal representatives of defendant.

(1) In every suit of the nature referred to in rule 4, Order XXII, the written statement shall be accompanied by a statement giving

• (a) the names and addresses of the persons who, in the event of the death of the defendant, may be made a party as his legal representatives;
• (b) the name and address of the person, who in the event of the death of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representatives to be made a party.

(2) A defendant may at any time

• (a) file in the Court an amended list of his presumptive legal representatives.
• (b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub- rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision or review.]