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(..9..)

PLAINT AND WRITTEN STATEMENT

QUESTION BANK

1. Explain “Plaint”, “Return of Plaint”, and “Rejection of Plaint”.

2. Explain “written statement’, “set-off’ and “Counterclaim”.

3. What is meant by a ‘plant’? What are the contents of the plaint?

4. Under what circumstances can a plaint be rejected?

5. What is meant by ‘written statement’? Explain the contents of a written statement.

SHORT NOTES

1. Counter-claim

2. Set-off.

3. Plaint.

4. Written statement.

5. Cause of action.

6. Rejection of plaint.

SYNOPSIS

A] PLAINT

I. MEANING-

II. CONTENTS OF PLAINT (O. VII. R. 1 to 8)–

Meaning of ‘Cause of action’-

Relief-

III. ADMISSION OF PLAINT (R.9)-

IV. RETURN OF PLAINT (R. 10, 10A & 10B)-

V. REJECTION OF PLAINT (R. 11 & 13)-

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VI. PRODUCTION OF DOCUMENTS RELIED UPON BY PLAINTIFF (R. 14 TO 17)-

VII. FORM OF PLAINT.

B] WRITTEN STATEMENT (O. VIII)-

RULES AS TO WRITTEN STATEMENT-

1) Filing of the written statement within 30 days (R. 1)-

2) Applicability of rules of pleadings-

3) Duty of defendant to produce documents (R. 1 A)-

4) New facts must be specially pleaded (R. 2)-

5) Denial must be specific (R. 3, 5)-

6) Denial should not be evasive (R. 4)-

7) Counter Claim to be stated in a written statement (R. 6 B)-

8) Defence founded upon the separate ground (R. 7)-

9) New ground of defence (R. 8)-

10) Subsequent pleading (R. 9)-

11) When the defendant fails to produce a written statement (R. 10)-

12) Form of Written Statement.

NOTES

(1) SET-OFF (R. 6)-

I. MEANING-

II. EFFECT OF SET-OFF (R.6 SUB-RULE (2)-

III. EQUITABLE SET-OFF-

IV. DISTINCTION BETWEEN ‘LEGAL SET-OFF’ AND ‘EQUITABLE SET-OFF’-

1) Ascertained/ unascertained sum-

2) Claimed as of right-

3) Demand from the same transaction-

4) Legally recoverable amount-

(2) COUNTERCLAIM (R. 6A TO 6G)-

I. COUNTER CLAIM MEANING-

II. RULES RELATING TO COUNTER-CLAIM.-

1) Counter-claim to be stated (R. 6 B)-

2) Exclusion of counter-claim (R. 6 C)-

3) Effect of discontinuance of suit (R. 6 D)-

4) Default of plaintiff to reply to counter-claim (R. 6 E)-

5) Relief to the defendant where counter-claim succeeds (R. 6 F)-

6) Rules relating to a written statement to apply (R. 6 G)-

III. DISTINCTION BETWEEN SET-OFF AND COUNTER-CLAIM-

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(1) Out of the same transaction-

(2) As a defence-

3) Computation of limitation-

4) Amount claimed-

A] PLAINT-

I. MEANING-

Every civil suit starts with the presentation of a plaint to the Court. Plaint is the first

document upon which the suit is presented. The meaning of ‘Plaint’ is not defined in the

Code. However, ‘Plaint’ can be said to be a statement of claim, a document, by the

presentation of which the suit is instituted. Plaint is the pleading of the plaintiff. O. VII,

R. 1 to 18 of the Code deals with various provisions relating to the plant.

II. CONTENTS OF PLAINT (O. VII. R. 1 to 8)–

The plaint shall contain the following particulars-

1) The name of the Court in which the suit is brought¹.

2) The name, description and place of residence of the plaintiff.

3) The name, description and place of residence of the defendant.

4) Where the plaintiff or the defendant is a minor or a person of unsound mind, a

statement to that effect;

5) The facts constituting the cause of action and when it arose.

6) The facts show that the Court has jurisdiction.

7) A statement of the value of the subject matter of the suit for the purposes of

jurisdiction and of court fees, so far as the case admits.

8) The relief that the plaintiff claims simply or in alternative²

10) In special cases (mentioned below), the following particulars shall be added to the

content of the plant-

a) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the

amount so allowed or relinquished and

b) Where the suit is for recovery of money, the precise amount claimed³.

c) Where the suit is for accounts or mesne profits or movables in possession of the

defendant or for debts which cannot be determined, the approximate amount or value

thereof⁴.

d) Where the subject matter of the suit is immovable property, a description of the

1

Following points- number 1 to 8 and point (10) (a) are mentioned in R. 1 sub- rule (a) to (i).

²R. 1 (g) and R. 6.

³R. 2.

⁴Latter part of R. 2.

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property sufficient to identify it, e.g. boundaries, survey numbers, etc⁵.

e) Where the plaintiff sues in a representative character, the plaintiff shall show the plaintiff

has an actual existing interest in the subject matter and he has taken the steps (if any)

necessary to enable him to institute a suit⁶.

e) Where the suit is time-barred, the exception upon which the exemption from the law of

limitation is claimed⁷.

⁵R. 3.

⁶R. 4.

⁷R. 6.

IN THE COURT OF CIVIL JUDGE Jr. DIVISION PUNE AT PUNE.

Regular Civil Suit No- 27/2016

Ramrao Bajirao Pawar

Age- 60. Years. Occup- Farmer.

R/o- Chinchwad, Pune.

Vs.

……. Plaintiff

Ashok Sahebrao Jadhav.

Age- 55 Years. Occup- Farmer.

R/o- Chinchwad, Pune.

………Defendant

Above named Plaintiff most respectfully states as follows-

1) Plaintiff and defendant are good friends since last 10 years.

2) On the 30^thApril of 2014, Plaintiff lent the defendant Rs. 50,000/- (Rupees fifty thousand only), repayable on the

30^thApril 2015.

3) The defendant has not paid the same, except Rupees 10,000/- (Rupees ten thousand only), paid on 24 January.

2015.

4) Defendant did not pay remaining amount of Rs. 40,000/ (Rupees fourth thousand only) till date.

5) Value of the subject-matter of the suit for the purpose of jurisdiction is Rs. 40,000/ (Rupees fourth thousand only)

and for the purpose of Court-fees is Rs. 40,000/ (Rupees fourth thousand only).

6) Jurisdiction- Both the parties reside in the Chinchawad Pune, and the subject-matter and value of the suit is Rs.

40,000/- therefore, this court has jurisdiction to try the suit.

7) Cause of action- Defendant had assured to pay the amount on or before 30^thApril 2015. However, defendant did

not pay the amount within agreed time. Therefore, cause of action arose on 30^thApril 2015 to file this suit.

8) Limitation- The suit is for the recovery of money lent, the cause of action arose on 30^thApril 2015, the suit is

filed on 02/07/2015. Therefore, the suit is well within limitation period. (The limitation period for recovery of

money let is of 3 years).

9) Plaintiff therefore, prays that-

a) Defendant be ordered to pay to the plaintiff Rs. 40,000/- (Rupees forty thousand only) with interest of 7%

thereon till realization of the suit amount.

b) Plaintiff be allowed to amend plaint as and when necessary.

c) Any other just orders may time to time be passed in favour of the plaintiff.

Place-Pune.

Date- 02/03/2016

Advocate for Plaintiff

Plaintiff

VERIFICATION

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Meaning of ‘Cause of action’-

Every suit must have a cause of action. Without the cause of action, the suit is liable

to be rejected. The Code does not define the concept of ‘cause of action. However, it may

be described as-

(1) ‘Cause of action’ means the cause of action for which the suit has been brought.

(2) ‘Cause of action is ‘a bundle of essential facts, which it is necessary for the plaintiff to

prove before he can succeed.

(3) ‘Cause of action’ means ‘every fact, which it is necessary to establish to support a right

or obtain a judgment⁸’.

O. VII R. 1 (e) makes it mandatory for the plaintiff to state specifically the

particulars about the facts constituting the cause of action and when it arose. The purpose

of the requirement is to help the Court ascertain whether the suit is within limitation or not.

Relief-

Every plant must state specifically the relief that the plaintiff claims either simply

or in the alternative. Plaintiff can ask for alternative relief, e.g. specific performance of

contract or compensation for breach of contract alternative. It is not necessary to ask for

general or other reliefs because Court usually grants them. For example, Plaintiff need not

pray that “he prays for such further or other reliefs as the nature of the case may require”;

similarly, prayer for costs of the suit is understood and need not be prayed. The court is at

liberty to grant such relief as the plaintiff is entitled from the facts and evidence of the

case⁹. However, in several judgments, it is also held that the Court cannot grant a larger

relief to the plaintiff than that claimed by him, even if he is entitled to it unless he gets his

plaint amended with the leave of the Court.

Where the plaintiff seeks relief with respect to several distinct claims or causes of

action founded upon separate and distinct grounds, they shall be stated as far as may be

separately and distinctly (R. 8).

III. ADMISSION OF PLAINT (R.9)-

If the plant is not returned or rejected, it is presumed that the Court has admitted it.

R. 9 provides the procedure for admission to a plant. It requires the filing of copies of the

plaint by the plaintiff and paying requisite Court fees for the service of summons, etc.

I Shri Ramrao Bajirao Pawar (the Plaintiff), Age- 60. Years. Occup- Farmer. R/o- Chinchwad, Pune. Do state

on solemn affirmation that all the facts mentioned in above plaint are true and correct to the best of my knowledge

and understanding and for the genuineness of which I am signing hereunder.

Place- Pune.

Date- 02/03/2016.

Plaintiff

⁸Cooke v. Gill (1873) 8 CP 107.

⁹Jankirama Iyher v. Nilakant Iyer AIR 1962 SC 633.

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IV. RETURN OF PLAINT (R. 10, 10A & 10B)-

R. 10 provides for the return of the plant in all such cases where a court is unable to

entertain it for want of jurisdiction, whether pecuniary, territorial or any other type. The

power of directing the plaint to be returned for presentation before the appropriate Court

can also be exercised by the Court of Appeal or revision if it finds that the trial Court lacked

jurisdiction to entertain the suit (R. 10 B).

R. 10 (A) prescribes the procedure to be followed by the Court before the plant is

ordered to be returned to be presented to the proper Court. It provides for the endorsement

of the judge regarding the date of presentation and return of the plaint, the name of the

party presenting the plaint and the reasons for return.

However, when the complaint is filed in the proper Court after being returned from

the wrong court, it cannot be said to be a continuation of the same suit. In other words, the

suit needs to be commenced when a complaint is filed in the proper Court.

V. REJECTION OF PLAIT (R. 11 & 13)-

R. 11 provides that the plaint shall be rejected in the following cases-

a) where it does not disclose a cause of action.

b) where the relief claimed is undervalued, and the plaintiff fails to be required by the Court

to correct the valuation within a time fixed by the Court.

c) where the relief claimed is properly valued, but the plaint is written upon paper

insufficiently stamped, and the plaintiff fails on being required by the Court to supply

the requisite stamp paper within a time to be fixed by the Court, fails to do so.

d) where the suit appears from the statement in the plaint to be barred by any law.

However, the plaintiff is not restricted from filing a fresh suit on the same cause of

action (R. 13).

VI. PRODUCTION OF DOCUMENTS RELIED UPON BY PLAINTIFF (R. 14 TO

17)-

The documents which are relied upon by the plaintiff in support of his claim should

be entered in a list of documents, and the same should be produced in the court along with

the plaint. If such documents are not within the possession of the plaintiff, he shall submit

with the plaint a list of such documents, stating in whose possession they are¹⁰.

If such documents are not produced, they will not be admissible in evidence unless

allowed by the Court¹¹.

However, according to R. 14 (4), the following documents may be allowed in evidence

even without filing at the time of plaint (or before hearing), viz.

¹⁰R. 14.

¹¹R. 17.

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(i) documents reserved for the purpose of cross-examination of the plaintiff’s witnesses, or

(ii) documents were handed over to a witness to refresh his memory.

VII. FORM OF PLAINT (as shown in footnote no. 7).

B] WRITTEN STATEMENT (O. VIII)-

Pleading includes plaint and written statements. Plaint is the pleading of the

plaintiff, whereas written statement is the pleading of the defendant, wherein he states

every material fact alleged by the plaintiff in his plaint and also states any new facts in his

favour or takes legal objection against the plaintiff's claim. The written statement is a reply

in defence by a defendant to the plaint.

RULES AS TO WRITTEN STATEMENT-

1) Filing of the written statement within 30 days (R. 1)-

The defendant should, within 30 days from the service of summons on him, present

a written statement of his defence. Provided the period of 30 days may be extended up to

ninety days by the Court.

2) Applicability of rules of pleading-

The rules of pleading, as discussed earlier (in the topic of pleading), also apply to

the written statement.

3) Duty of defendant to produce documents (R. 1 A)-

Like the plaintiff, the defendant is also duty-bound to produce all those documents

upon which he bases his defence (if they are in his possession). If any of such documents

are not in his possession, he should name in whose possession the document is. If he does

not produce any document in his possession at the time of filing a written statement, he

cannot produce it at the time of the hearing unless the court permits. However, the

following documents may be filed at the time of the hearing, viz-

(a) document produced for the cross-examination of the plaintiff’s witness, or

(b) the document handed over to a witness merely to refresh his memory.

4) New facts must be specially pleaded (R. 2)-

The defendant must raise by his pleading all matters which show (i) that the suit is

not maintainable, or (ii) that the transaction is either void or voidable in point of law and

(iii) all such grounds of defences as if not raised would be likely to take the opposite party

by surprise, or (iv) would raise issues of facts not arising out of the plant, as for instance,

fraud, limitation, release, payment, performances or facts showing illegality.

5) Denial must be specific (R. 3, 5)-

A defendant should deny specifically an allegation of fact in the plaint. In his written

statement, it is not sufficient for a defendant to deny allegations in plaint generally.

An allegation of a fact made in the plaint, if not denied nor stated to be not admitted

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in the written statement, is to be taken as admitted except for the person under disability

(R. 5). Where the defendant has not filed a written statement the Court may either

pronounce the judgment on the basis of the facts stated in the plaint or may require any

such fact to be proved.

6) Denial should not be evasive (R. 4)-

The denial should not be vague or evasive. Where a defendant wants to deny any

allegation of fact in the plaint, he must do so clearly, specifically and explicitly. Thus, if it

is alleged that he received a certain sum of money, it shall not be sufficient to deny that he

received that sum or any part thereof or else set out how much he received.

7) Counter Claim to be stated in a written statement (R. 6 B)-

If the defendant seeks to rely upon the right of counter-claim, he shall state it

specifically in a written statement (R. 6 B).

8) Defence founded upon the separate ground (R. 7)-

Where the defendant relies upon several distinct grounds of defence, set-off, or

counterclaims founded upon separate and distinct facts, they should be stated separately

and distinctly.

9) New ground of defence (R. 8)-

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.

10) Subsequent pleading (R. 9)-

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 permission of the

Court.

11) When a defendant fails to produce a written statement (R. 10)-

Where the defendant fails to present his written statement within the time permitted

or fixed by the Court, the Court will pronounce the judgment against him or pass such order

in relation to the suit as it thinks fit. A decree will be drawn up according to the said

judgment.

12) Form of Written Statement.

NOTES

(1) SET-OFF (R. 6)-

I. MEANING-

Set-off can be pleaded as a defence in a money suit. Set-off is a claim set up against

another. In an action to recover money, Set-off is a cross-claim by the defendant, for

which he might maintain an action against the plaintiff.

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R. 6, sub-rule (1) provides that-

(i) where in a suit for the recovery of money,

(ii) the defendant claims to Set-off,

(iii) against the plaintiff’s demand (in plaint),

(iv) any ascertained sum of money legally `recoverable by him (defendant) from the

plaintiff,

(v) not exceeding the pecuniary limits of the jurisdiction of the Court, and

(vi) both parties fill the same character as they fill in the plaintiff’s suit,

(vii) the defendant may, at the first hearing of the suit, but not afterwards (unless

permitted by the Court),

(viii) present a written statement containing the particulars of the debt sought to be 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.

II. EFFECT OF SET-OFF-

When a defendant pleads set-off, he becomes a plaintiff regarding the amount he

claimed. There are two suits when the defendant claims Set-off, one by the plaintiff against

the defendant and the other by the defendant against the plaintiff. Both these suits are tried

together. When the defendant claims set-off in his written statement plaintiff (now becomes

defendant for that amount) will have to file a written statement in answer in defence of the

claim of set-off. Rules for filing written statements equally apply to the filing of written

statements against set-off.

III. EQUITABLE SET-OFF-

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R. 6 deals with legal set-off only and not with equitable set-off. The essential

ingredient of legal set-off is an ascertained sum of money. Therefore, under R. 6, to claim

set-off amount claimed should be ascertained. However, the Court of Equity in England

has evolved the concept of equitable set-off wherein the defendant may be allowed to

claim set-off even in respect of an unascertained sum of money. To claim equitable set-

off, both the cross demands should arise out of one and the same transaction or are so

connected that they can be looked upon as parts of one transaction. The principle of

equitable set-off evolved with the object of avoiding unnecessarily compelling the

defendant to file a new suit. In other words, avoiding a multiplicity of suits is an object of

the principle of equitable set-off.

Illustrations

i) A servant has brought suit against his master for recovery of salary of Rs. 10,000. Master

can claim a set-off of Rs. 2000 for the loss he has suffered due to negligence of servant if

any article of Rs. 2000 had been damaged by the servant.

ii) If X, a contractor, claims Rs. 20000 for work done by him for Y. Y can claim set-off for

breach of contract by X.

IV. DISTINCTION BETWEEN ‘LEGAL SET-OFF’ AND ‘EQUITABLE SET-

OFF’-

1) Ascertained/ unascertained sum-

Legal set-off is claimed if the amount is ascertained. However, equitable set-off can

be allowed even though the amount is not ascertained.

2) Claimed as of right-

Legal set-off can be claimed as right, and the Court is duty-bound to adjudicate upon

it. However, equitable set-off cannot be claimed as a right, and the Court is not duty-bound

to adjudicate upon it.

3) Demand from the same transaction-

In a legal set-off, the cross-demand does not need to arise from the same transaction

but is necessary for an equitable set-off.

4) Legally recoverable amount-

In legal set-off, the amount claimed must be legally recoverable, whereas, through

equitable set-off, even a time-barred amount can be claimed if the parties are in a fiduciary

relationship.

(2) COUNTERCLAIM (R. 6 A TO 6 G)-

I. COUNTER CLAIM MEANING-

The defendant may in addition to a set-off (under R. 6) set up by way of counter-

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claim against the plaintiff’s claim, 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 the time for filing defence has

expired). However, a counter-claim cannot, in any case, exceed the pecuniary limits of the

court’s jurisdiction (R. 6 A).

A counter-claim is like a cross-suit, and the Court can pronounce a final judgment

in that suit, both on the original claim and on the counter-claim. Thus, the counter-claim is

to be treated as a plaint, and the rules governing a plaint equally apply to it. Similarly, the

plaintiff is also given the opportunity to file a written statement in answer to the defendant’s

counter-claim.

II. RULES RELATING TO COUNTER-CLAIM.-

1) Counter-claim to be stated (R. 6 B)-

If the defendant seeks to rely upon any ground as supporting a right of counter-claim

in his written statement, he must specifically state that he does so by way of counter-claim.

2) Exclusion of counter-claim (R. 6 C)-

In case of counter-claim, the plaintiff can argue that the defendant’s claim ought not

to be disposed of by way of a counter-claim but by an independent suit, and the Court may,

if so satisfied, pass an order to that effect.

3) Effect of discontinuance of suit (R. 6 D)-

Even if the plaintiff’s suit is stayed or dismissed, the Court may proceed with the

defendant’s counter-claim.

4) Default of plaintiff to reply to counter-claim (R. 6 E)-

If the plaintiff commits a default in reply to the defendant’s counter-claim, the Court

may pronounce a judgment against the plaintiff in respect of such counter-claim or pass

any other order as it may deem fit.

5) Relief to the defendant where counter-claim succeeds (R. 6 F)-

Where in any suit, a set-off or counter-claim 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.

6) Rules relating to a written statement to apply (R. 6 G)-

The rules relating to the written statement by a defendant shall also apply to the

written statement filed in answer to a counter-claim.

III. DISTINCTION BETWEEN SET-OFF AND COUNTER-CLAIM-

There are the following differences between set-off and counter-claim, viz.

(1) Out of the same transaction-

Set-off must be for an ascertained sum or must arise out of the same transaction as

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the plaintiff’s claim, whereas counter-claim need not arise out of the same transaction.

(2) As a defence-

Set-off is a good ground of defence, and it should be pleaded in the written

statement; counter-claim does not afford any defence to the plaintiff’s claim. It is a sort of

cross-action.

3) Computation of limitation-

In a case of legal set-off, the amount must be recoverable at the date of the suit,

while in the case of a counter-claim, the amount must be recoverable at the date of the

filing of the written statement.

4) Amount claimed-

Set-off is the claim by the defendant in defence, which cannot exceed the plaintiff’s

claim, while a counter-claim may exceed the plaintiff’s claim. Therefore, when the

defendant demands an amount below or up to the suit claim in a plaintiff's suit, it is a set-

of; however, when the claim is for a larger amount, the claim for an excess amount is a

counter-claim.

*****