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Plaint, Written Statement, Set Off And Counter Claim Under Civil Procedure Code 1908

A plaint is a legal document which contains the written statement of the plaintiff's claim. A plaint is the first step towards the initiation of a suit. In fact, in the very plaint, the contents of the civil suit are laid out.

Through such a plaint, the grievances of the plaintiff are spelled out, as well as the possible causes of action that can arise out of the suit. A plaint which is presented to a civil court of appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects to obtain.

Although it hasn't been defined in the CPC, it is a comprehensive document, a pleading of the plaintiff, which outlines the essentials of a suit, and sets the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the essentials of a plaint implicit in itself are those only material facts, and not all facts or the law as such is to be stated, the facts should be concise and precise, and no evidence should be mentioned.

Particulars Of A Plaint:
  1. The name of the particular court where the suit is initiated.
  2. Name, place, and description of the plaintiff's residence
  3. Name, place, and description of the defendant's residence.
  4. A statement of unsoundness of mind or minority in case the plaintiff or the defendant belongs to either of the categories.
  5. The facts that led to the cause of action and when it arose.
  6. The facts that point out to the jurisdiction of the court.
  7. The plaintiff's claim for relief.
  8. The amount allowed or relinquished by the plaintiff if so
  9. A statement containing the value of the subject matter of the suit as admitted by the case.

Additional Particulars:
  1. Order VII, Rule 2 states that the plaintiff shall state the exact amount of money to be obtained from the defendant if the case is so. On the other hand, if the exact amount cannot be arrived at, as is then case with mesne profits, or claim for property from the defendant, an approximate figure must be mentioned by the plaintiff
  2. Order VII, Rule 3 states that when immovable property is the subject matter of the plaint, the property must be duly described, that is sufficient in the ordinary course to identify it.
  3. Order VII, Rule 3 states that when the plaintiff has initiated the suit in a representative capacity, it has to be shown that he/ she has sufficient interest in doing the same as well as has taken the required steps to ensure the same.
  4. The plaint should adequately show the involvement of the defendant, including his/ her interests in the same and thereby justifying the need to bring him/ her forward.
  5. If the plaintiff files the suit after the expiration of the period of limitation, he/ she must show the reason for which such an exemption from law is being claimed.

Procedure For Admission Of The Plaint:
When the court serves the summons for the defendant, according to Order V, Rule 9, the plaintiff must present copies of then plaint according to the number of defendants, and should also pay the summons fee, within seven days of such a summons.

The Particulars Of A Plaint Can Be Divided Into Three Important Parts Such As Heading And Title, Body Of The Plaint, And Relief Claimed.
Heading And Title:

Name Of The Court:
The name of the court should be written as the heading. It is not necessary to mention the presiding officer of the court. The name of the court would be sufficient. Eg. In the Court of District Judge, Kolkata.

Parties To The Suit:
There are two parties to every suit, the plaintiffs and the defendants. For the purpose of the suit, the name, place, and description of the residence of both the plaintiffs and the defendants have to be mentioned in the particular plaint.

When there are several plaintiffs, all of their names have to be mentioned and have to be categorically listed, according to their pleadings, or in the order in which their story is told by the plaintiff.

Minors cannot sue nor can be sued. So if one of the parties is a minor or of unsound mind, it will have to be mentioned in the cause title.

Title Of The Suit:
The title of the suit contains the reasons for approaching the court and the jurisdiction before which the plaint Is initiated.

Body Of The Plaint
This is the body of the plaint wherein the plaintiff describes his/ her concerns in an elaborative manner. This is divided into short paragraphs, with each paragraph containing one fact each. The body of the plaint is divided into two further parts which are:

Formal Portion:
The formal portion contains the following essentials:
  1. A statement regarding the date of cause of action. It is necessary for every plaint to contain the date when the cause of action arose. The primary objective behind this is to determine the period of limitation.
  2. There should be a statement regarding the jurisdiction of the court. The plaint must contain all facts that point out the pecuniary or territorial jurisdiction of the court.
  3. The value of the subject matter of the suit must be stated properly in this part of the plaint.
  4. Statement regarding minority.
  5. The representative character of the plaintiff
  6. The reasons why the plaintiff wants to claim exemptions under the law if the suit is initiated after the period of limitation.

Substantial Portion:
  1. This portion of the plaint must contain all the necessary and vital facts, which constitute the suit. If the plaintiff wishes to pursue a course of action on any other grounds, such grounds must be duly mentioned.
  2. It should be shown in the plaint that the defendant is interested in the subject matter and therefore must be called upon by the court.
  3. If there is more than one defendant, and if the liability is not joint, then the individual liability of each and every defendant must be shown separately.
  4. In the same way, if there is more than one plaintiff, and their cause of action is not joint, then too, the same has to be mentioned separately.

The last part of the plaint is the relief. The relief claimed must be worded properly and accurately. Every plaint must state specifically the kind of relief asked for, be it in the form of damages, specific performance or injunction or damages of any other kind. This has to be done with utmost carefulness because the claims in the plaint cannot be backed by oral pleadings.

Signature And Verification:
  1. The signature of the plaintiff is put towards the end of the plaint. In case the plaintiff is not present due to any legitimate reason, then the signature of an authorized representative would suffice.
  2. The plaint should also be duly verified by the plaintiff. In case the plaintiff is unable to do so, his/ her representative may do the same after informing the court.
  3. The plaintiff has to specify against the paragraphs in the pleadings, what all he/ she has verified by his/ her own awareness of the facts, and what has been verified as per information received, and subsequently believed to be true.
  4. The signature of the plaintiff/ verifier, a Where the language of the plaint is beyond the comprehension of the plaintiff, the same has to be translated, or made known to the plaintiff, and only after that can he/ she put his/her signature and get the plaint verified by the Oath Commissioner.

Return Of Plaint
Order VII, Rule 10 states that the plaint will have to be returned in such situations where the court is unable to entertain the plaint, or when it does not have the jurisdiction to entertain the plaint.

The courts can exercise the power of returning the plaint for presentation before the appropriate court if it feels that the trial court itself did not have the appropriate jurisdiction in the first place.

Once the appellate court finds out that the trial court decided on the civil suit without proper jurisdiction, such decision would be nullified.

Dismissal Of Suit
If the plaint is to be returned to the parties after its rejection, the court has to fix a date for the same where the parties can arrive for this purpose.

This was mentioned in Rule 10, inserted by the amendment act of 1976. If the court does not have the adequate jurisdiction, the proper course is to return the plaint and not to dismiss it.

When Can A Plaint Be Rejected?
  1. A plaint can be rejected under the following scenarios
  2. Where the cause of action is not disclosed
  3. When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after being instructed by the court to do so.
  4. When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not been stamped sufficiently and fails to do so even after the court's instruction.
  5. Where the suit stems from a statement which has been essentially barred by law

A plaint is important in the sense that it is the first and foremost step towards instituting the suit. Therefore, due care has to be taken to ensure that the procedure required for the initiation of plaint has been duly recognized.

It is mandatory to follow protocol by stating the relevant facts, the necessary details, refrain from providing evidence and mention the kind of relief envisaged so that the plaintiff is duly benefited.

Written statement order 8
First of all, we should know that what is written statement. Actually, it is a pleading of the defendant in the answer of the plaint led by the plainti against him. It is a reply statement of the defendant in a suit specically denying the allegations made against him by the plainti in his plaint. The provision regarding the written statement has provided in the Code of Civil Procedure, 1908.

The expression Written Statement has not been dened in this code. It is a term of specic meaning ordinarily signifying a reply to the plaint led by the plainti. In other words, it is the pleading of the defendant wherein he deals with the material fact alleged by the plainti in his plaint and also states any new fact in his favour or takes legal objections against the claim of the plainti.

Who may be written statement:
A written statement may be filed by the defendant or by his duly authorized agent. In the case of more than one defendants, the common written statement led by them must be signed by all of them. But it is sucient if it is veried by one of them who is aware of the facts of the case and is in a position to le an adavit. But a written statement led by one defendant does not bind other defendants.

Time limit for ling written statement:
A written statement should be led within thirty days from the service of the summons on him. The said period, however, can be extended up to ninety days,(Rule -1). A defendant should present a written statement of his defence in the said period.

Defences in written statement:

In written statement defendant can specically deny the allegations made in the plaint by the plainti against him. Besides this, he also can claim to set-o any sums of money payable by the plainti to him as a counter defence (Order 8 Rule 6). Further, if the defendant has any claim against the plainti relating to any matter in the issue raised in the plaint, then he can separately le a counter-claim along with his written statement. It is provided in Order 8 Rule 6A to 6G of the code.

Particulars: Rules 1-5 and 7-10
Drafting a written statement is an art so it should be drafted carefully and artistically. Before proceeding to draft a written statement it is absolutely necessary for the defendant to examine the plaint carefully.

Special rules of defence:
Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of a written statement:
  1. New facts, such as the suit is not maintainable, or that the transaction is either void or voidable in law, and all such grounds of defence as, if not raised, would take the plainti by surprise, or would raise issues of fact not arising out of the plaint, such as fraud, limitation, release, payment, performance or facts showing illegality, etc. must be raised. (Order 8 Rule 2)
  2. The denial must be specie. It is not succinct for a defendant in his written statement to deny generally the grounds alleged by the plainti, but he must deal specially with each allegation of fact which he does not admit, except damages.
  3. 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, specially and explicitly and not evasively or generally.
  4. Where every allegation of fact in the plaint, if not denied specically or by necessary implication, or stated to be not admitted except as against a person under disability. The court may, however, require proof of any such fact otherwise than by such admission.
  5. Where the defendant relies upon several distinct grounds of defence or set-o or counterclaim founded upon separate and distinct facts, they should be stated separately and distinctly.
  6. Any new ground of defense which has arisen after the institution of the suit is a presentation of a written statement claiming a set-o or counterclaim may be raised by the defendant or plainti in his written statement as the case may be.
  7. If the defendant fails to present his written statement within the time permitted or relaxed by the court, the court will pronounce the judgment against him or pass such order in relation to the suit as it thinks t and a decree will be drawn up according to the said judgment.
  8. No pleading after the written statement of the defendant other than by way of defense to set-o or counterclaim can be led.

Set off (Order VIII, Rule 6]
Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a claim of some amount against the plaintiff what he do is he can claim a set-off in respect of the said amount. This right of the defendant to claim set off has been recognized under Order 8, Rule 6 of the Code.

Essential Conditions:
  1. A defendant may claim a set-off, if:
  2. The suit is for the Recovery of money;
  3. The sum of money must be ascertained;
  4. Such sum must be legally recoverable;
  5. It must be recoverable by the defendant or by all the defendants, if not more than one;
  6. It must be recoverable by the defendant from the plaintiff(s);
  7. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
  8. Both the parties must fill in the defendant's claim to set-off, the same character as they fill in the plaintiff's

When a defendant claims set-off, he is put in the position of the plaintiff as regards the amount claimed by him. Where the plaintiff doesn't appear and his suit is dismissed or he withdraws, it does not affect the claim for a set-off by the defendant and a decree may be passed in his favor if he is able to prove his claim.

X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to insure Y's goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.

P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs. 1,000. The two claims being both definite, it may be set-off.

Types of Set Off
Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks of legal set-off only. In contrast to legal set-off, an equitable set-of, can be claimed for unascertained money but it must arise from the same transaction. For example, where a servant sues his master for recovery of amount of salary, the master can claim set-off for loss sustained by him due to negligence of servant since it arises out of same relationship.

Legal Set Off
It is apparent from a reading of the above provisions that in order to constitute legal set-off, the following conditions must be fulfilled, viz.,
  1. The suit must be for recovery of money.
  2. The defendant must claim an ascertained sum of money. A sum of money due in respect of a disputed transaction cannot constitute an ascertained sum.
  3. That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred by the law of limitation.
  4. The plaintiff's claim and the set-off must be claimed in the same character. The amount must be recoverable by the defendant and if there are more than one defendant, then by all the defendants. Again, the amount must be recoverable by the defendant from the plaintiff and if there are more than one plaintiff, then from all the plaintiffs.
  5. The set-off should be within the pecuniary jurisdiction of the Court.

Equitable set-off
Court of Equity in England allowed set-off when cross-demands arose out of the same transaction, even if the money claimed by way of set-off was an unascertained sum of money. The Common Law Courts refused to take notice of equitable claims for they were not ascertained sums. The Courts of Equity, however, held that it would be inequitable to drive the defendant to a separate cross-suit and that he might be allowed to plead a set-off though the amount might be unascertained. Such a set-off is called an equitable set-off.

In India, the distinction between legal and equitable set-off remains. The provisions as to legal set-off are contained in Order VIII, Rule 6, C.P.C. The same has now been enlarged by insertion of Rule 6-A with regard to counter-claim by the defendant. So far as equitable set-off is concerned it is provided in Order XX, Rule 19(3), C.P.C., which states that:
The provisions of this rule (relating to a decree for set-off or counter-claim and an appeal therefrom) shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise.

The provisions of Order VIII, Rule 6, and Rule 6-A are, therefore, not exhaustive because apart from a legal set-off an equitable set-off can be pleaded independently of the specific provision of the Code.

Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a suit against the plaintiff. It is a claim independent of and separable from plaintiff's claim which can be enforced by a cross section. Counter-claim can be set up in respect of action accruing to the defendant either before or after the filing of the suit but before the defendant has delivered his defense or before the time fixed for delivery of his defense has expired.

Such claim should not exceed the pecuniary limits of the jurisdiction of the concerned court. The counter-claim is to be treated as a plaint and the plaintiff can file a written statement in answer to it. Counter-claim can be filed after filing of written statement.

In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a counter claim is referable to the date of accrual of cause of action. If the cause of and such action had arisen before or after filing of the suit, cause of action continued up to the date of filing of the suit and such cause of action continued up to the date of filing written statement or extended date of filing plaintiff statement, then such counter claim can be filed even after filing the written statement.

Who may file counterclaim?
Normally, it is the defendant who may file a counterclaim against the plaintiff. But incidentally and along with the plaintiff, the defendant may also claim relief against the co-defendants in the suit. But a counterclaim solely against co-defendants is not maintainable.

When counterclaim may be set up?
A counterclaim may be set up by a defendant against a plaintiff in respect of cause of action accruing either before or after filing of the suit, provided such claim is not barred by limitation.

Effect of counterclaim Such counterclaim has the effect of a cross-suit and the court can pronounce a final judgment both on the original claim and the counterclaim. The counterclaim of the defendant will be treated as a plaint and the plaintiff has a right to file a written statement in answer to the counterclaim of the defendant.

The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, the counterclaim will be decided on merits and the defendant will have a right to get a decree for a counterclaim as claimed in the written statement. If the plaintiff does not file any reply to the counterclaim made by the defendant, the court may pronounce the judgment against the plaintiff in relation to the counterclaim made against him or make such order in relation to the counterclaim as it thinks fit.268 The counterclaim shall be treated as a plaint and will be governed by the rules applicable to plaints. Similarly, a reply filed in answer to a counterclaim shall be treated as a written statement and governed by rules applicable to written statements.

Set Off & Counter Claim
The distinction between set-off and counter-claim may now be noted:
  • Set-off is a statutory defence to a plaintiff's action, whereas a counterclaim is substantially a cross-action.
  • Set-off must be for an ascertained sum or must arise out of the same transaction as the plaintiff's claim. A counter-claim need not arise out of the same transaction.
  • Set-off is a statutory ground of defence and has to be pleaded in the written statement. It can be sued as a shield and not as a sword. Counter-claim, on the other hand, does not afford any defence to the plaintiff's claim. It is a weapon of offence which enables the defendant to enforce his claim against the plaintiff as effectually as in an independent action. It is a sort of cross-action.
  • If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish his plea has to prove that set-off was barred when the plaintiff commenced the action. It is not enough to prove that it was barred at the time when it was pleaded. In the case of a counter-claim, it is enough for the plaintiff to prove that the counter-claim was barred when it was pleaded.
  • An equitable set-off is a claim by the defendant in defence, which generally cannot exceed the plaintiff's claim. A counter-claim the defendant may, however, exceed the plaintiff's claim, being in nature of the cross action. Under the provision rule 6-F of Order 6, if in any suit a set off or counter claim is established as a defence against plaintiffs claim and any balance is found due to the defendant as the case may be the court may give judgment to the party entitled to such balance.

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