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[Written statement, set-off and counter-claim]
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[1. Written Statement.
The Defendant shall, within thirty days from the date of service of summons on him,
present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, 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 ninety days from the date of service of summons.]
*[Provided that where the defendant fails to file the written statement within the said period of thirty days, he
shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be
recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one
hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date
of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow
the written statement to be taken on record.]
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[1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.
(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.
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[(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.]
2. New facts must be specially pleaded.
The defendant must raise by his pleading all matters which show the
suit not 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.
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.
*[3A. Denial by the defendant in suits before the Commercial Division of the High Court or the
Commercial Court.—
(1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule.
(2) The defendant in his written statement shall state which of the allegations in the particulars of plaint he
denies, which allegations he is unable to admit or deny, but which he requires the plaintiff to prove, and which
allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his reasons for doing so and if he
intends to put forward a different version of events from that given by the plaintiff, he must state his own version.
(4) If the defendant disputes the jurisdiction of the Court he must state the reasons for doing so, and if he is able,
give his own statement as to which Court ought to have jurisdiction.
(5) If the defendant disputes the plaintiff’s valuation of the suit, he must state his reasons for doing so, and if he
is able, give his own statement of the value of the suit.]
1. Subs. by Act 104 of 1976, s. 58, for the former heading (w.e.f. 1-2-1977).
2. Subs. by Act 22 of 2002, s. 9, for rule 1 (w.e.f 1-7-2002).
3. Ins. by Act 46 of 1999, s.18 (w.e.f. 1-7-2002).
4. Subs. by Act 22 of 2002, s. 9, for sub-rule (3) (w.e.f. 1-7-2002).
*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-2015).
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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.
5. Specific denial.
1[(1)] 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:
*[Provided further that every allegation of fact in the plaint, if not denied in the manner provided
under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability.]
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[(2) Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce
judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but
the Court may, in its discretion, require any such 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 and such decree shall bear the date on which the judgment was pronounced.]
6. Particulars 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, presents 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 judgment 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 effects, 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.
1. Rule 5 renumbered as sub-rule (I) by Act 104 of 1976, s. 58 (w.e.f. 1-2-1977).
2. Ins. by s. 58, ibid. (w.e.f. 1-2-1977).
*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Schedule (w.e.f. 23-10-2015).
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(e) A sues B for compensation on account of trespass. B hold 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 are 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 for Rs. 1,500 due in his
separate character. C may set-off the debt of Rs. 1,000.
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[6A. Counter-claim by defendant.
(1) 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.
(2) 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.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the
defendant within such period as may be fixed by the court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.
6B. Counter-claim to be stated.
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.
6C. 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.
6D. Effect of discontinuance of suit.
If in any case in which the defendant sets up a counterclaim,
the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be
proceeded with.
6E. 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.
6F. Relief to defendant where counter-claim succeeds.
Where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s 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.
6G. 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.]
7. Defence or set-off founded upon separate grounds.
Where the defendant relies upon several
distinct grounds of defence or set-off 1[or counter-claim] founded upon separate and distinct facts, they
shall be stated, as far as may be, separately and distinctly.
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 1[or counter-claim] may be raised by the
defendant or plaintiff, as the case may be, in his written statement.
1. Ins. by Act 104 of 1976, s. 58 (w.e.f. 1-2-1977).
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8A. [Duty of defendant to produce documents upon which relief is claimed by him.] omitted by Act
46 of 1999, s. 18 (w.e.f. 1-7-2002).
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[9. Subsequent pleadings.
No pleading subsequent to the written statement of a defendant other
than by way of defence to set-off or counter-claim 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 of not more than thirty days for
presenting the same.
10. Procedure when party fails to present written statement called for by Court.
Where any
party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the
time permitted or fixed by the Court, as the case may be, 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:]
*[Provided further that no Court shall make an order to extend the time provided under Rule 1 of this
Order for filing of the written statement.]