plaint and written statement Flashcards
Plaint: Order ____
This in all contains ____ Rules, determining the provisions in relation to Plaint.
- Provisions to be contained in a plaint
- Return of the Plaint
- Rejection of the plaint
Order 7
18
Provisions to be contained in a plaint:
CPD
MCJ
RSV
- Name of the court in which sought is brought.
- The name, description and place of residence of the plaintiff
- The name, description and place of residence of the defendant, so far as they can be ascertained.
- Where the defendant or plaintiff is a person of unsound mind or minor, statement should be made to that effect.
- The facts containing the cause of action and when it arose.
- The facts showing that Court has jurisdiction.
- The relief which the plaintiff claims
- Where the plaintiff has allowed a set-off or relinquished a portion of his claim
- A statement of value of subject matter of the suit for purpose of jurisdiction, court fees etc.
Order 7 Rule 2
Money suits:
Where plaintiff seeks recovery of money, he should state the precised amount claimed. Where measne profit claimed even that should be stated in the plaint
Order 7 Rule 3
Subject matter of suit-immovable property
Full particulars and description of the immovable property should be given in the plaint
Order 7 Rule 4
When plaintiff sues as a representative-
The plaintiff should specify his qualification to sue in a representative capacity specifically in the plaint
Order 7 Rule 5
Defendant’s interest and liability should be shown
Defendant’s interest in the subject matter should be shown clearly
Order 7, Rule 6
Ground for exemption from limitation law
If suit is instituted after the expiry of limitation period, then plaintiff shall show the ground for exemption from law of limitation
Order 7 Rule 7
Relief to be specifically stated:
The plaintiff must specifically state the relief claimed either specifically or in the alternative
Order 7, Rule 8
Relief founded on separate grounds:
Several distinct claims or causes of actions must be specifically stated
Order 7 Rule 9
Procedure on admitting plaint.
The court directs summons to be served on the defendant within 7 days on admission of plaint, and plaintiff is required to produce the requisite copies for the same
Return of Plaint:
O ___, R____, R_____ and R____
The court where plaint is instituted has the power to return the plaint if it finds out that it does not have the jurisdiction to entertain it.
The error in jurisdiction can be on 3 lines:
TPS
On returning the plaint, court has to endorse the following particulars on the plaint:
PRPR
Order 7, Rule10, 10-A and 10-B
- Territorial,
- Pecuniary or
- over Subject-matter
- The date of presentation of the plaint
2.The date of return of the plaint - Name of the party which returned the plaint
4.Reasons for returning the plaint.
Rejection of plaint
The plaint shall be rejected in the following cases:
DUSBF9
Order 7, Rule 11
- Where it does not disclose a cause of action.
- Where the relief claimed is undervalued, and plaintiff fails to make correct valuation within the time specified by the court to do so.
- Where the plaintiff fails to sufficiently stamp the plaint
- Suit appears to be barred by law from the plaint itself
- Where it is not filed in duplicate.
- Where the plaintiff fails to comply with the provisions of Rule 9
Written Statement: Order____
Written statement is the “defense statement” of defendants. A ‘defense’ called the written statement, in general this is a reply of plaint, in which defendant denies or admits each and every allegation or facts given in the plaint. Denial or admission must be Para wise and clear.
In the written statement defendant can put his case also under the heading additional plea, and can states new facts or ground which is necessary to defeat the opponent. If defendant wants to put his own claim against the plaintiff, he can put it by way of set-off and counter-claim under Order ___, Rule ___ and ____ of C.P.C.
Order 8 ;
Order 8 Rule 6 and 6A
The facts which remain unanswered by the defendant, it will be presumed that the said fact was admitted by the defendant. In general, the fact which is taken to be admitted need not be proved. Pleading must be unambiguous clear and correct. Carelessly prepared pleading can spoil the suit
Rules for Written Statement:
Order VIII provides for the filing of a written-statement, the particulars to be contained therein and the manner of doing so. It requires what a written statement should contain.
After the thorough study of the plaint and supported documents a para wise answer of the plaint can be prepared. Order VIII of the Code of Civil Procedure deals with the ____, ______ and _____.
written statement, set off and counterclaim
Time for Filing of Written Statement: Order ____, Rule ____
- Written Statement: The defendant shall, within ______ from the date of service of summons on him, present a written statement of his defense:
Provided that where the defendant fails to file the written statement within the said period, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ____ from the date of service of summons”.
The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for.
Order VIII Rule 1
thirty days ; ninety days
The object of the provision is to avoid dilatory tactics met outby defendants and abusing the process of court of law
Duty of defendant to produce document upon which relief is claimed or relied upon by him:
Order ____, Rule _____
1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is
3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
4) Nothing in this rule shall apply to documents-
a) produced for the cross-examination of the plaintiff’s witnesses, or
b) handed over to a witness merely to refresh his memory
Order VIII Rule 1A
New Facts Must be Specially Pleaded:
Order ____, Rule ____
The rule requires that 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
Order VIII Rule 2
Denial to be Specific:
Order ____, Rule _____
The rule requires that 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.
Order VIII Rule 3
Evasive denial:
Order ____, Rule ____
This rule of C.P.C. says that where a defendant denies an allegation of fact in a 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. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If the denial of a fact is not specific but evasive, then the said fact is to be taken to have been admitted.
Order VIII Rule 4
Specific Denial:
Order ____, Rule ____
“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 person under disability.
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”
Order VIII Rule 5
The main concrete substance of the written statement which later helps in determining the issues and taking evidence on rests in specific denials made.
Procedure Where Written Statement by the Defendant is not Filed:
Order ___, Rule _____
- The Rule provides that where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint and after pronouncing the judgment a decree is required to be drawn up in accordance with such judgment.
- Under _____, where any party from whom a written statement is required under Rule ___ or Rule ____ fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
This rule gives a discretion to the Court either to pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit
Order 8 Rule 5(2)(4) ;
Order VIII Rule 10 ;
Rule 1 or Rule 9
Set-Off Particular of Set-of to be given in Written Statement _____ CPC-
A reading of the Rule of Order VIII CPC would show that following conditions have to be satisfied before a defendant is entitled to set-off under that Rule: -
“A defendant may claim a set-off under this rule if the following conditions are satisfied, but not otherwise
I. The suit must be one for the recovery of money.
II. As regards the amount claimed to be set-off [6]:
ARDPES
Order 8 Rule 6 ;
a) it must be an ascertained sum of money
b) such sum must be legally recoverable
c) it must be recoverable by the defendant or by all the defendants if more than one;
d) it must be recoverable by the defendant from the plaintiff or all the plaintiffs if more than one.
e) it must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is brought; and
f) both parties must fill, in the defendant’s claim to set-off the same, character as they fill in the plaintiff’s suit.”
Note: The right of set-off is a ground of defense and is required Rule 6, of the Civil Procedure Code to be pleaded as a part of the written statement of the defendant. If established it is an answer to the plaintiff’s claim wholly or in parts as the case might be
____ set-off
- The essence of such a claim is that there must be some connection between the plaintiff claim for a debt and the defendant’s claim to set-off, which will make it equitable to dry up the defendant to a separate suit.
- In these cases where cross demands arise out of the same transaction or are so connected in their nature and circumstances that can be looked upon as part of one transaction, equitable set-off is permissible.
Equitable
This principle is made applicable even in those cases where the claim of the defendant is for an unascertained sum like that of damages but arising out of same transaction
Counter-Claim: Order ___, Rule ____
A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court. The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints
Order 8 Rule 6-A
Counter claim to be stated: Order ___, Rule ___
Where any defendant seeks to rely upon any ground as supporting a right of counter claim, he shall, in his written statement, state specifically that he does so by way of counter claim
Order 8, Rule 6B
Order ___, Rule ____
Exclusion of counter claim
Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter claim, apply to the court for an Order that such counter claim may be excluded, and the court may, on the hearing of such application make such Order as it thinks fit
Order 8, Rule 6C
Order ____, Rule ____
Effect of discontinuance of suit -
If in any case in which the defendant sets up a counter claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter claim may nevertheless be proceeded with
Order 8, Rule 6D
O___, R___
Default of plaintiff to reply to counter claim
If the plaintiff makes default in putting in a reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter claim made against him, or make such Order in relation to the counter claim as it thinks fit.
Order 8, Rule 6E.
O___, R___
Relief to defendant where counter claim succeeds
Where in any suit a set off or counter Claim is established as a defence against the plaintiffs claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the court may give judgment to the party entitled to such balance.
Order 8, Rule 6F
O___, R___
Rules relating to written statement to apply
The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter claim
Order 8, Rule 6G.
O___, R___
Defence or set off founded on separate grounds-
Where the defendant relies upon several distinct grounds of defence or set off or counter claim founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly
Order 8, Rule 7
Order ____: Provisions of Appearance of Parties and Consequences of Non-Appearance
Order ___, Rule ___
“Parties to appear on day fixed in summons for defendant to appear and answer” On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.
It is necessary for both the parties to appear on the day fixed in summons and failing which there are Rules prescribed for the consequences to be faced by both parties. Such consequences can be Dismissal in Default and Ex parte.
Dismissal of suit:
The court may dismiss the suit on the day of hearing if
1. Summons has not been served to the defendant for failure at the part of plaintiff of not paying process fee or postal charges, Or does not present copies of plaint etc.
2. The plaintiff has failed to comply with the rules for filing the copy of the plaint and other documents.
3. When neither party appear if the suit is called on for hearing.
Dismissal of suit can also take place if plaintiff fails to apply for fresh summons.
ORDER 9 ;
Order 9, Rule 1
Ex parte procedure and dismissal in default
1.Procedure when only plaintiff appears.-
The most important aspect here is, if it is proved that the summons was duly served on the defendant, still defendant fails to appear, the court may pass an ex parte order.-If the summons isnot served on defendant on account of process fee not paid by plaintiff, the court may dismiss the suit.
- Procedure when only defendant appears.-
If the defendant appears but, plaintiff does not appear the court may dismiss the suit in default of plaintiff. Provided that the defendant does not admit the claim made by plaintiff. - As a consequence, the plaintiff may file a fresh suit on same cause of action or may file for restoration of suit.
- Procedure when both parties are absent. The court may dismiss the suit. The plaintiff may then file an application for setting aside the order or for restoration of suit.
Remedies against Ex parte order: It may be set aside by the appellate court. The defendant must show to the court that notice was not served on him and he was prevented by sufficient cause from not appearing in the court.
Restoration of suit dismissed for default of plaintiff: If plaintiff shows sufficient cause for his non-appearance, suit may be restored. The plaintiff has to make a fresh application for restoration before the court passing order of dismissal.
