Pleadings Plaint & written statement Order 6,7 and 8 of civil procedure code, Pleadings- communicate contention plaint claim by presentation.
As Pleadings in general can be state as statement of parties to communicate their contention.
Pleading means plaint or written statement According to order 6 rule 1 of CPC. It is filed by each party to a case stating what his content will be at a trial.
And and giving all such details, Here the details as his opponent need to know for his defence.
Pleadings is nothing but statements in writing drawn up and file by each party before the court.
Plaint, Code of Civil Procedure
Statement of claim by presentation of which the suit is instituted the term plaint has not define in the Civil Procedure Code. Cpc order 7 laid down rules relating to plaint.
Essential of plaints order 7 of CPC
The following Essentials are required to be stated in a plaint:-
- Name of the court means the court before which the suit is bought.
- The plaintiff name, description and place of resident of plaintiff.
- In the same way The defendant name, description and place of resident of defendant.
- The fact constituting the case of action and when it roses.
- If plaintiff or dependent is minor or person of unsound mind a statement to that affect.
- The court jurisdiction.
- Statement of the value of subject matter of the suit of the purpose of Jurisdiction and courts fees.
- Relief claim by plaintiff simply are in alternatively.
- Rule 2, claim of amount in precise, where the suit is of recovery.
- Order 7 rule 3, The description oF the property where subjects matter is an immovable property.
- Rule 6 Ground of exemption from Limitation law.
- Relief to be specifically, states rule 7 of this order.
Return of Plaint order 7 rule 10 – 10B
- Rule 10 Return of plaint.
- 10A, Power of court to fix a date of appearance in the court where plaint is to be filed after its return.
- Rule 10B, power of appellant court to transfer suit to the proper Court.
Rule 10 Order 7
The plaint shall at any stage of the suit be return to be presented to court, in which the suit should have been instituted.
The rule 10 is saying that in case the court have no jurisdiction to try the suit at any stage, where pecuniary, territorial or subject matter. It return the suit to try the suit for its presentation to proper court.
Where plaint is to be filed after its return order 7 rule 10A cpc
The following procedure must be followed, before a plaint is return under rule 10. The judge returning the plaint should reason for returning.
Rule 10A power of Court to fix a date of appearance in the court where plaint is to be filed after its return. The code before returning the plaint shall intimate its decision to the plaintiff.
The plaintiff may make an application to the court, specify the proper court in which he proposes to present before, and fix a date for Appearance of Parties in the said court.
Where the application made by plaintiff is allowed by the court under sub rule 2 of order 10A. The plaintiff shall not be entitled to appeal against the order returning the plaint.
Power of appellate court to transfer suit to proper court order 7 rule 10B
In case ONGC V MODERN CONSTRUCTION CO. 2014 Supreme court held that It can not be said to be a continuation of the suit in the proper court after getting return from the wrong court.
Order 7 rule 10B where on an appeal against an order for the return of plaint the court hearing the appeal confirms such order.
The court of appeal direct the plaintiff to file the plaint in proper courts. And fix a date for appearance and notify the parties with summons for appearance in the suit.
Order 7 rule 11 Rejection of plaint
The plaint shall be rejected in the following ground:-
- Rule 11(a)Where it does not disclose a cause of action.
- Case ROOP LAL SATHI VERSUS NACHHATTER SINGH GILL 1982. IN this case SC held that a part of the plaint cannot be rejected and if rejected no cause of action is disclosed the plaint should be rejected as whole.
- (b) Where the relief claim is undervalued and the plaintiffs on being required by court to correct the valuation within a time to fixed by the court, fail to do so.
- Valuation is not corrected within time fixed, the plaint will be rejected.
Insufficient stamped rejection of Plaint
- (c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped. And the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court fail to do so. The plaint will be rejected.
In rule 11(b) and (c) no automatic rejection of plaint, the court is required to give sufficient time to plaintiff to correct.
- (d) Where the suit appear from the statement in the plaint to barred by any law, the court will reject it.
- (e) Where the plaint is not filed in duplicate. Order 4 Rule 1 Institution of suit the plaint is to be filed in duplicate.
Fails requisite fee rejection of plaint
- (f) The plaintiff fails to comply with the provision of rule 9.
- Means the plaintiff fails to present copies of the plaint of each dependents.
- And requisite fees for summons within 7 days, the plaint will be rejected.
- Case: Mayar H. K Ltd. Versus owners and parties, vessel M. V. Fortune Express AIR 2006 SC.
- Shaukat hussain mohd. Patil v. Khatunben mohmmedbhai polzra 2019 SCC.
Written statement, set off and counter claim
Order 8 Of cpc Written statement, The defence shall, within 30 days from the date of service of summons on him, present a written statement of his defence.
Means the pleadings of the defendant, deals with the facts alleged in the plaint. The written statement is not defined in in this code of civil procedure.
The written statement is filed by defendant or his duly authorized agent.
In case of more than one defendant written statement
When there is more than one defendants a common written statement can be filed by them. The common written statement must be signed by all of them.
Order 8 rule 1 written statement time limit
The defendant shall within 30 days from date of service of summons file written statement. The order 8 rule 1 provides it, and its proviso provides that if within 30 days fail to file written statement.
Such other day as may be specified by the court, and the reason of such failed shall be recored.
Case: Kailash versus Nankhu 2005 SC, the supreme Court held that outer time limit of 90 days for filing the written statement is not mandatory. It held that it is directory not mandatory.
Failed to file written statement
He shall be allowed to file the same on such other day but it shall not be later than 120 days from date of service of summons.
If it again fails the defendant shall forfeits the right to file, and court shall not allow the written statement to be taken on record. Section 151 of this code Saving of inherent power of court to prevent abuse of the process of court.
Case: Salem Bar association versus Union of India 2005 Supreme Court held that the Court is empowered under order 8 rule 10 to allow the defendant. The defendant to file written statement even after expiry of 90 days.
But it also said that power can only be used in exceptional circumstances and routine order cannot be passed.
Rule 10: Procedure when party fails to prevent written statement called for by court. Where any party under rule 1 to rule 9 failed to file written statement.
Set-off and its essential cpc
Illustration b) of order 8 rule 6, A dies intestate and in debt to B. C takes out administration to A’s effect and B, buys part of effect from C. In a suit for purchase money by C against B. Latter Cannot set off the Debt against the price.
The price for C fills two different characters, one as the vendor to B, in which and other as representative to A.
The above illustration, It is essential that the parties with respect to claims should have same legal capital or legal capacity. In the present case in the original suit C as an administrator and Vendor, claim the purchase, money from B whose capacity as vendor.
The set off claim of B in his individual capacity as creditor and in set off claim is administrator and not as vendor. Therefore legal character is different in 2 claim, hence set off will not allowed.
Particulars of set off to be given in written statement cpc
Order 8 rule 6 set off it is a claim set up against another, a cross claim, it means a reciprocal acquittal of debts between 2 person.
It is doctrine of relating back, the set off even can be filed after expiration.
In case of set off claim, the claim relates back when the original suit was filed. Therefore it essential that for set off the cause of action should have arisen before the date of original suit otherwise an illegal situation will arise.
Essential of set off
- The suit must be for recovery of money.
- The sum of money must be ascertained.
- Such sum must be legally recoverable.
- It must not exceed the pecuniary jurisdiction of the court in which the suit is brought.
Equatable set off order 20 rule 9
- Case: clerk v. Ratna venu
- Bhupender narayan singh versus Bahadur singh 1952.
Order 20 Rule 19, Decree when set off or counter claims is allowed. Where the defendant has been allowed a set off or counter claim against the claim of plaintiff.
The degree shall state that amount is due to plaintiff and what amount is due to the defendant and shall be for the recovery of any sum which appear to be due to either party.
There are certain essential of equitable set off order 20 rule 9 are as follows:-
- The original suit shall be a money suit and shall be a certain amount.
- Set off Prem shall also be a money claim it may be a ascertain uncertain a like legal set off.
- The claim of set off should have arisen out of some transaction in which the original claim has arisen.
Counter claim Order 8 rule 6A cpc
The concept of Counter claim is broader than the set off and in counter claim any cause of action be it related to money claim or some other action can be claim.
It is also not necessary in counter claim that the two cause of action should have arisen and out of same transaction. Thus what cannot be claim under legal or equitable set off can be claimed in Counter claim.
Provided that the suit for Counter claim is filed in same court.
Case: Santi rani das divanji vs Dinesh chandra 1997 SC, it was held that the case of action for counter claim should have arisen follows:-
- Counter claim arose before original Suit filed.
- It arose after the original suit was filed, but before filing of written statement by the defendant within initial 30 days.
- If defended not able to file a written statement within 30 days pleaded and the period has been extended for him beyond 30 days. In cause of action should arise before expiry of the extended period.
Theory of relating back not apply in counter claim order 8 rule 6 civil procedure code.