Code of Civil Procedure, 1908 (CPC)
Order VIII CPC: Written Statement, Set-Off and Counterclaim
Order VIII of the Code of Civil Procedure, 1908 governs the defendant's side of the pleadings. It prescribes the written statement and the time for filing it, lays down the rules of denial that decide what is admitted and what is in issue, and gives the defendant two affirmative devices: the set-off, by which he reduces the plaintiff's money claim, and the counterclaim, by which he sues the plaintiff within the plaintiff's own suit. These notes cover the whole Order, with the 120-day rule in commercial suits, the consequences of failing to deny, and the leading cases.
1. The Written Statement and the Time for Filing
§ Order VIII Rule 1, CPC 1908 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. |
The time limit is therefore thirty days from service, extendable by the court, for reasons recorded in writing, to a maximum of ninety days. The question that dominated the litigation after 2002 was whether that outer limit is absolute, and the answer differs between ordinary and commercial suits, a contrast that examiners set repeatedly.
📖 Kailash v. Nanhku, (2005) 4 SCC 480 In an election petition tried under the Code, a written statement was filed beyond ninety days, and the question was whether the amended Order VIII Rule 1 left the court power to receive it. The Supreme Court held the provision directory and not mandatory: it is part of procedural law, its language is negative but carries no penal consequence, and the court retains power, in exceptional circumstances and for reasons recorded in writing, to take a written statement on record after ninety days. The Court emphasised that the limit remains the rule and the extension a sparing exception, to be exercised in the interests of justice and not as routine indulgence, since the object of the amendment was to curb delay. Rule: in ordinary civil suits the ninety-day limit is directory. The handmaid principle survived the 2002 amendment. |
§ The 120-day rule in commercial suits For commercial disputes of a Specified Value, the Schedule to the Commercial Courts Act, 2015 amends Order V Rule 1 and Order VIII Rules 1 and 10 as they apply to such suits. The defendant must file his written statement within thirty days, and the court may extend the time for recorded reasons, but not beyond one hundred and twenty days from the date of service of summons. On the expiry of that period, the defendant forfeits the right to file the written statement and the court shall not allow it to be taken on record. In SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure, (2019) 12 SCC 210, the Supreme Court held this limit mandatory, precisely because the consequence is enacted in terms, and held further that the inherent power under Section 151 cannot be used against such an express prohibition. The contrast to remember: Kailash for ordinary suits, directory; SCG Contracts for commercial suits, mandatory. The difference lies in the language of each provision, not in the general spirit of the Code. |
2. The Rules of Denial: Rules 3, 4 and 5
i. Rule 3: specific denial. It is not sufficient for a defendant to deny generally the grounds alleged by the plaintiff; he must deal specifically with each allegation of fact which he does not admit to be true, except damages.
ii. Rule 4: evasive denial. Where a defendant denies an allegation of fact, he must not do so evasively, but must answer the point of substance. If it is alleged that he received a certain sum of money, it is not enough to deny that he received that particular amount, but he must deny that he received that sum or any part of it, or else set out how much he received.
iii. Rule 5: effect of failure to deny. 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. The proviso preserves the court's power to require any fact so admitted to be proved otherwise than by such admission.
§ The consequence of a bad denial A general or evasive denial is treated as no denial at all, so the allegation stands admitted under Rule 5, and the plaintiff is relieved of the burden of proving it. Careless drafting of a written statement therefore loses the case before evidence begins. Two safeguards limit the severity. Rule 5(1) excepts persons under disability, against whom admissions are not so taken. And the proviso allows the court, notwithstanding an admission, to require the fact to be proved otherwise, which the court does where the admission appears inadvertent or the matter is of public importance. Rule 5(2) completes the scheme: where the defendant has not filed a pleading, the court may pronounce judgment on the basis of the facts contained in the plaint, except against a person under disability. |
Rule 2 requires the defendant to raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is void or voidable in law, and all such grounds of defence as, if not raised, would take the opposite party by surprise or raise issues of fact not arising out of the plaint, such as fraud, limitation, release, payment, performance or facts showing illegality. These are the affirmative defences, and the rule against departure in Order VI Rule 7 means that a defence not pleaded cannot be proved.
3. New Facts, Additional Written Statement and Replication
i. New facts. Facts arising after the filing of the written statement, or discovered afterwards, are brought on record by amendment under Order VI Rule 17, subject to the due diligence proviso where trial has commenced.
ii. Additional written statement. By Order VIII Rule 9, no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counterclaim 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, not exceeding thirty days, for presenting it.
iii. Replication. A replication, or rejoinder, is the plaintiff's answer to the written statement. It is not a pleading the Code contemplates as of right: it may be filed only with the leave of the court under Rule 9, and it cannot be used to introduce a new case or to depart from the plaint, since Order VI Rule 7 forbids departure. Its legitimate function is to answer new facts raised in the defence, above all a set-off or counterclaim, to which the plaintiff may file a written statement as of right under Rule 6A(3).
4. Failure to File a Written Statement: Rule 10
§ Order VIII Rule 10, CPC 1908 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. |
Rule 10 gives the court two courses and one caution. The court may pronounce judgment against the defaulting party, or make such order in relation to the suit as it thinks fit, which includes granting further time, requiring the plaintiff to prove his case, or fixing the suit for ex parte hearing. The caution, settled by the case law, is that judgment under Rule 10 is not automatic: the court must apply its mind, and where the plaint raises questions that require proof, or the claim is not one that can be decreed on the pleadings alone, the court should require the plaintiff to prove his case rather than decree it mechanically. In commercial suits the position is stricter, since the amended Rule 10 records the forfeiture of the right to file the written statement after one hundred and twenty days.
5. Set-Off: Rule 6
Legal set-off, equitable set-off and counterclaim: the defendant's three devices compared
§ Order VIII Rule 6(1), CPC 1908 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, present a written statement containing the particulars of the debt sought to be set-off. |
A set-off is a reciprocal acquittal of debts: the defendant asks the court to extinguish or reduce the plaintiff's claim by a cross-debt owed to him. The five essentials of a legal set-off under Rule 6, and the distinct requirements of an equitable set-off developed by the courts, are treated in full in the companion topic in this series. The essential contrast to carry into this Order is that a set-off operates only up to the amount of the plaintiff's claim: it is a shield, not a sword, and the defendant recovers nothing beyond extinguishing what he owes.
6. Counterclaim: Rules 6A to 6G
§ Order VIII Rule 6A(1), CPC 1908 A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counterclaim 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 counterclaim is in the nature of a claim for damages or not: Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court. |
The counterclaim was introduced into the Code by the Amendment Act of 1976, and it gave the defendant something the set-off never offered: the right to obtain a decree against the plaintiff in the plaintiff's own suit. By Rule 6A(2) the counterclaim has the same effect as a cross-suit, so the court may pronounce a final judgment both on the claim and on the counterclaim; by Rule 6A(3) the plaintiff may file a written statement in answer to it; and by Rule 6A(4) the counterclaim is treated as a plaint and governed by the rules applicable to plaints. Rule 6D then supplies the feature that proves its independence: if the plaintiff's suit is stayed, discontinued or dismissed, the counterclaim nevertheless proceeds to judgment. The scope, the cause of action requirement, the grounds of exclusion and the comparisons with set-off and with a cross-suit are developed in the companion topic.
7. Set-Off and Counterclaim Compared
Basis | Set-off (legal), Rule 6 | Counterclaim, Rules 6A to 6G |
|---|---|---|
Nature | A defence: it answers and reduces the plaintiff's claim | A cross-action: it asserts an independent claim within the same suit |
Kind of suit | Available only in a suit for the recovery of money | Available in any suit, and the claim need not be for money |
Amount | Cannot exceed the plaintiff's claim; nothing is recovered beyond extinguishing it | May exceed the plaintiff's claim; the defendant may obtain a decree for the excess |
Cause of action | Must be an ascertained sum legally recoverable when the suit was filed | Must accrue before the defendant delivers his defence, whether before or after the suit was filed |
Effect of dismissal or withdrawal of the suit | Falls with the suit, since it exists only as an answer to the claim | Survives: Rule 6D provides that it proceeds to judgment notwithstanding |
Court fee | Payable on the amount set off | Payable as on a plaint, since Rule 6A(4) treats it as one |
8. Landmark Judgments on Order VIII
- Kailash v. Nanhku, (2005) 4 SCC 480. The ninety-day limit in Order VIII Rule 1 is directory in ordinary suits; a later written statement may be received in exceptional circumstances for recorded reasons.
- SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure, (2019) 12 SCC 210. In commercial suits the 120-day limit is mandatory; the right to file is forfeited and Section 151 cannot relax it.
- Salem Advocate Bar Association v. Union of India (II), (2005) 6 SCC 344. The working of the amended Order VIII settled, including the courts' power over time limits and the object of the delay-reduction amendments.
- Order VIII Rules 3, 4 and 5. Specific denial required; evasive denial impermissible; allegations not denied are taken to be admitted, subject to the disability exception and the court's power to require proof.
- Order VIII Rule 6D. A counterclaim proceeds to judgment even where the plaintiff's suit is stayed, discontinued or dismissed.
9. Frequently Asked Questions on Order VIII
What is the time limit for filing a written statement?
Thirty days from the date of service of summons, extendable by the court for reasons recorded in writing to a maximum of ninety days. In commercial suits of a Specified Value the outer limit is one hundred and twenty days, on the expiry of which the right to file is forfeited.
Is the 90-day limit for a written statement mandatory?
In ordinary suits, no. Kailash v. Nanhku holds Order VIII Rule 1 directory, so a court may in exceptional circumstances and for recorded reasons take a later written statement. In commercial suits the 120-day limit is mandatory under SCG Contracts.
What is the effect of failing to deny an allegation in the written statement?
Under Order VIII Rule 5, an allegation of fact not denied specifically or by necessary implication, or stated to be not admitted, is taken to be admitted, except as against a person under disability. The court may nevertheless require the fact so admitted to be proved otherwise.
What is an evasive denial?
A denial that answers the form of the allegation but not its substance, which Order VIII Rule 4 forbids. Where it is alleged that the defendant received a sum of money, he must deny receiving that sum or any part of it, or state how much he received; a bare denial of the precise figure is evasive and amounts to no denial.
Can a plaintiff file a replication?
Only with the leave of the court under Order VIII Rule 9, except that he may file a written statement in answer to a set-off or counterclaim as of right. A replication cannot introduce a new case or depart from the plaint.
What happens if a defendant does not file a written statement?
Under Order VIII Rule 10 the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. Judgment is not automatic: where the claim requires proof, the court should put the plaintiff to proof rather than decree the suit mechanically.
What is the difference between a set-off and a counterclaim?
A set-off is a defence available only in a money suit and only up to the amount of the plaintiff's claim. A counterclaim is a cross-action available in any suit, may exceed the plaintiff's claim, entitles the defendant to a decree for the excess, and survives the dismissal or withdrawal of the plaintiff's suit under Rule 6D.
10. Related Topics in This CPC Series
- Set-Off under Order VIII Rule 6: Legal and Equitable
- Counterclaim under Order VIII Rules 6A to 6G
- Order VII: The Plaint, Return and Rejection
- Pleadings under Order VI and Amendment under Rule 17