ORDER VIII WRITTEN STATEMENT, SET OFF AND COUNTER CLAIM - RULE 6, 6A, 6B, 6C, 6D, 6E, 6F, 6G, 7, 8, 8A, 9, 10 OF CODE OF CIVIL PROCEDURE 1908

What are the Particulars of set-off to be given in written statement? What is Counter-claim by defendant? How Counter-claim to be stated? What is Exclusion of counter-claim? What is the Effect of discontinuance of suit? What is Default of plaintiff to reply to counter-claim? What is Relief to defendant where counter claim succeeds? What are Rules relating to written statement to apply? What is Defence or set-off founded upon separate grounds? What is New ground of defence? What is the Duty of defendant to produce documents upon which relief is claimed by him? What is Subsequent pleadings? What is the Procedure when party fails to present written statement called for by Court? Rule 6, 6A, 6B, 6C, 6D, 6E, 6F, 6G, 7, 8, 8A, 9 and 10 of Order VIII of Code of Civil Procedure 1908

Particulars of set-off to be given in written statement, Counter-claim by defendant, Counter-claim to be stated, Exclusion of counter-claim, Effect of discontinuance of suit, Default of plaintiff to reply to counter-claim, Relief to defendant where counter claim succeeds, Rules relating to written statement to apply, Defence or set-off founded upon separate grounds, New ground of defence, Duty of defendant to produce documents upon which relief is claimed by him, Subsequent pleadings, Procedure when party fails to present written statement called for by Court are defined under Rule 6, 6A, 6B, 6C, 6D, 6E, 6F, 6G, 7, 8, 8A, 9 and 10 of Order VIII of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 6 Order VIII of Code of Civil Procedure 1908 "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 lithe jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first heating 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 pronounced 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 affects, 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 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 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 are definite pecuniary demands.

(f) A and B sues 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. 1000. 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 6A Order VIII of Code of Civil Procedure 1908 "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.

Rule 6B Order VIII of Code of Civil Procedure 1908 "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.

Rule 6C Order VIII of Code of Civil Procedure 1908 "Exclusion of counter-claim"

Where a defendant sets up a counterclaims arid the plaintiff contends 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 counterclaim, 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.

Rule 6D Order VIII of Code of Civil Procedure 1908 "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 counterclaim may nevertheless be proceeded with.

Rule 6E Order VIII of Code of Civil Procedure 1908 "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.

Rule 6F Order VIII of Code of Civil Procedure 1908 "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.

Rule 6G Order VIII of Code of Civil Procedure 1908 "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.

Rule 7 Order VIII of Code of Civil Procedure 1908 "Defence or set-off founded upon separate grounds"

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

Rule 8 Order VIII of Code of Civil Procedure 1908 "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 or counter-claim may be raised by the defendant or plaintiff as the case may be, in his written statement.

Rule 8A Order VIII of Code of Civil Procedure 1908 "Duty of defendant to produce documents upon which relief is claimed by him"

(1) Where a defendant bases his defence upon a document in his possession or power, he shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement.

(2) 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.

(3) Nothing In this rule shall apply to documents produced,-

(a) for the cross-examination of the plaintiff's witnesses, or

(b) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or

(c) handed over to a witness merely to refresh him memory.

Rule 9 Order VIII of Code of Civil Procedure 1908 "Subsequent pleadings"

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

Rule 10 Order VIII of Code of Civil Procedure 1908 "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.

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