ORDER VIII – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER VIII. WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM

 

ORDER VIII
WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM

 

1[WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM]

 

1. Subs, by Act No. 104 of 1976, for the former heading (w.e.f. 1-2-1977).

 

1[1. Written statement.

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.]

 

1. Subs, by Act No. 46 of 1999, section 18. Now again substituted by Act No. 22 of 2002 section 9 (w.e.f. 1-7-2002).

 

1[1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him

 

(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

 

(2) Where any such document is not in possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

 

2(3) 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.].

(4) Nothing in this rule shall apply to documents—

 

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

 

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

 

1. Added by Act No. 46 of 1999, section 18 (w.e.f. 1-7-2002).

 

2. Rule 1A was inserted by Act No. 46 of 1999,section 18 and now sub-rule (3) has been substituted by Act No. 22 of 2002, section 9 (w.e.f. 1-7-2002)..

 

2. New facts must be specially pleaded.

 

The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

 

3. Denial to be specific

It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

 

4. Evasive denial.

Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that p
articular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

 

5. Specific denial.

1[(1)] 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 :

 

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.

 

2[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

 

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

 

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]

 

1. Rule 5 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976, (w.e.f. 1-2-1977).

 

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

6. 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 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, 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 pronounce 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 effect, 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 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.

 

(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 sue 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.

 

HIGH COURT AMENDMENTS

 

Karnataka.-

In Order VIII, in rule 6, in sub-rule (1), at the end, insert the words “and the provisions of rules 14 to 16 of Order VII of this Code, shall mutatis mutandis, apply to a defendant claiming set-off as if he were a plaintiff”, (w.e.f. 30-3-1967)

 

Orissa.-

Same as in Patna.

 

Patna.-

In Order VIII, in rule 6, in sub-rule (1), at the end, insert the words “and the provisions of Order VII, rules 14 to 18 shall, mutatis mutandis, apply to a defendant claiming set-off as if he were a plaintiff”.

 

1[6A. 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.

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

6B. 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.

 

6C. Exclusion of counter-claim

Where a defendant sets up a counter-claim and the plaintiff contends that 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 counter-claim, 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.

 

6D. 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 counter-claim may neverthel
ess be proceeded with.

 

6E. Default of plaintiff to reply to counter-claim.

If the plaintiff makes default in putting in 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.

 

6F. Relief to defendant where counter-claim succeeds

Where in any suit a set-off or counter-claim is established as 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 ent’tled to such balance.

 

6G. 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.]

 

7. Defence or set-off founder upon separate grounds

 

Where the defendant relies upon several distinct grounds of defence or set-off 1[or counter-claim] founded separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.

 

HIGH COURT AMENDMENT

 

Karnataka-

In Order VIII, after rule 7, insert the following rule, namely:-

 

“7A. Where the defendant seeks the permission of the Court under rule 8 of Order I of this Code to defend the suit on behalf of or for the benefit of himself and other persons having the same interest as the defendant in the subject-matter of the suit he shall file an application supported by an affidavit setting out the particulars detailed in sub-rule (2) of rule 4 of Order VII of this Code. Notice of such an application shall be given to all parties to the suit, and if the permission sought is granted the plaint may be amended by inserting a statement that the defendant is with leave of the Court sued as the representative of all persons interested in subject-matter of the suit.” (w.e.f. 30-3-1967)

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

8. 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 1[or counter-claim] may be raised by the defendant or plaintiff as the case may be, in his written statement.

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

1[8A. Omitted].

 

1. Omitted by Act No. 46 of 1999 (w.e.f. 1-7-2002).

 

1[9. Subsequent pleadings.

 

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 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 of not more than thirty days for presenting the same.

 

1. Rule 9 were omitted by Act No. 46 of 1999, section 18 but now again substituted by Act No. 22 of 2002 (w.e.f. 1-7-2002).

 

1[10. 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 relating to the suit as it thinks fit and on the pronouncemen
t of such judgment a decree shall be drawn up.”].

 

1. Rule 10 were omitted by Act No. 46 of 1999, section 18 but now again substituted by Act No. 22 of 2002 (w.e.f. 1-7-2002).

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order VIII, after rule 10, insert the following rules, namely:-

“11. Every party, whether original, added or substituted, who appears in any suit or other proceeding shall on or before the date fixed in the summons or notice served on him as the date of hearing file in Court proceeding stating his address for service, written in Hindi written in Devnagri Script, and if he fails to do so he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect, and the Court may make such order as it thinks just

 

12. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, addressed for service, filed under the preceding rule.”

 

[Vide Amended by Uttar Pradesh Gazette, Ft. II, dated 17th December, 1970.]

 

Bombay.-

In Order VIII, after rule 10, insert the following rules, namely:-

“11. (1) (a) Parties to fix addresses.-

 

Every party, whether original, added or substituted, who appears in any suit or other proceeding, shall file in the Court on or before the date fixed in the summons on notice served on him as date for his appearance or within such further time as may be allowed by the Court, a memorandum in writing stating the address at which he may be served.

 

(b) Registered address.-

This address shall be called the “registered address” and it shall subject to rule 24 of Order VII read with rule 12 of this Order, hold good in all proceedings in the suit and in appeals and also for a further period of six years from the date of the final decision for all purposes including those of execution.

 

(c) Consequences of default in filing registered address.-

If, after being registered to file the registered address within a specified time, he fails to do so, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. If this respect, the Court may add suo motu or on the application of any party for an order to such effect and the Court may make such order as it thinks fit.

 

(2) When default may be condoned.-

Where the Court has struck out the defences under sub-rule (1) and has adjourned the hearing of the suit or the proceeding and where the defendant or the opposite party at or before such hearing appears and assigns sufficient cause for his failure to file the registered address and also files the unregistered address, he may, upon terms as the Court directs as to costs or otherwise, be heard in answer to the suit or the proceeding as if the defences had not been struck out.

 

(3) When decree passed on default can be set aside.-

Where the Court has struck out the defences under sub-rule (1) and has consequently passed a decree or order, the defendant or the opposite party, as the case may be, may apply to the Court by which he files a registered address and satisfies the Court that he was prevented by any sufficient cause from filing the address, the Court shall make an order setting aside the decree or order as against him upon such terms as to costs or otherwise as it thinks fit and shall appoint a date for proceeding with the suit or proceeding:

 

Provided that where the decree or order is of such
a nature that it cannot be set aside as against such defendant or opposite party only, it may be set aside as against all or any of the other defendants or the opposite parties.

 

12. Applicability of rules 20 and 22 to 26 of Order VII.-

Rules 20, 22, 23, 24, 25 and 26 of Order VII shall apply so far as they may be applicable, to registered address filed under the last preceding rule.

 

Counter-Claim

 

13. Defendant may set up counter-claim against the claims of the plaintiff in addition to set-off.-

 

A defendant in a suit, in addition to his right of pleading a set-off under Order VIII, Rule 6 of the Code of Civil Procedure, 1908 may set up by way of counter-claim against the claims of the plaintiff any right or claim in respect of a cause of action accruing to the defendant either before or after the filing of the suit, but before the defendant has delivered his defence and before the time limited for delivering his defence has expired, whether such counter-claim sounds in damages or not, and 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 and on the counter-claim, and the plaintiff (if so advised) shall be at liberty to file a written statement in answer to the counter-claim of the defendant within four weeks after service upon him or his pleader of a copy of the defendant’s counter-claim, and the Court or a Judge may, on the application of the plaintiff before, trial, if in the opinion of the Court or Judge such counter-claim cannot be disposed of in the pending suit or ought not to be allowed, refuse permission to the defendant to avail himself thereof, and require him to file a separate suit in respect thereof.

 

14. Defendant setting up a counter-claim to specifically state so in the written statement.-

 

Where any defendant seeks to rely upon any grounds as supporting a right of counter-claim he shall, in his written statement state specifically that he does so by way of counter-claim.

 

15. Where the counter-claim involves in addition to the plaintiff other persons also, the defendant to add further title of the written statement and deliver copies of his written statement to such persons as are already parties to the suit.-

 

Where a defendant by a written statement sets up any counter-claim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his written statement a further title similar to the title in a plaint, setting-forth the names of all the persons who, in such counter-claim were to be enforced by a cross-suit, would be defendants to such cross-suit, and shall deliver copies of his written statement to such of them as are already parties to the suit within the period within which he is required to deliver it to the plaintiff.

 

16. Service of summons when counter-claim is against persons who are not already parties to the suit.-

 

Where any such person as is mentioned in the last preceding rule, is not already a party to the suit, he shall be summoned to appear by being served with a copy of the written statement and such service shall be regulated by the same rules as are contained in the Code of Civil Procedure, 1908, with respect to the service of a writ of summons.

 

17. Appearance of persons other than defendants to the suit, when served with counterclaim.-

 

Any person not a defendant to the suit, who is served with a written statement and counter-claim as aforesaid, must appear therein as if he had been served with a writ of summons to appears in the suit.

 

18. Reply to counter-claim.-

A person named in a written statement as a party to a counter-claim whereby made, may deliver a reply within the time, within which he might deliver a written statement if it were a plaint.

 

19. Objection to counter-claim being allowed to be set up in the suit.-

Where a defendant sets up a counter-claim, if the plaintiff or any other person named in the manner aforesaid as party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, he may, at any time before reply, apply, to the Court or a Judge for an order that such counter-claim may be excluded and the Court or Judge may, on the hearing of such application, make such order as shall be just.

 

20. Counter-claim may be proceeded with even if suit be stayed, discontinued or dismissed-

 

If in any case in which the defendant sets up a counter-claim the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

 

21. On default of replay to counter-claim, the counter-claim may be set down for judgment.-

 

If the defendant to the counter-claim makes default in putting in reply to the counter-claim, the defendant in the suit, who is the plaintiff to the counter-claim, may in such cases get the suit set down for judgment on the counter-claim, and such judgment shall be given as the Court shall consider him to be entitled to.

 

22. Judgment when set-off or counter-claim is established.-

Where in any suit a set-off or counter-claim is established as a defence against the plaintiffs claim, the Court or a Judge may, if the balance is in favour of the defendant give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled upon the merits of the case, (w.e.f. 1-11-1966)

 

Third Party Procedure

 

1 [23. Third Party Notice.-

Where in a suit a defendant claims against any person not already a party to the suit (hereinafter called the Third Party)-

 

(a) that he is entitled to contribution or indemnity, or

(b) that he is entitled to any relief or remedy to or connected with the subject-matter of the suit and substantailly the same as some relief or remedy claimed by the plaintiff, or

 

(c) that any question or issue relating to or connected with the subject-matter of the suit is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the Third Party or between any or either of them, he may apply to the Court for leave to issue a notice (hereinafter called the Third Party Notice) to that effect. The application shall be made by affidavit, stating the nature of the claim made by the defendant and the facts on which proposed- Third Party Notice is based and may be made ex parte. The application shall be made within four weeks from the service of the summons upon defendant.

 

24. From and Service of Notice.-

(1) Third Party Notice shall state the nature of the claim made by the plaintiff against the defendant and the nature and grounds of the claim made by the defendant against the Third Party or the nature and extent of any relief or remedy by him against Third Party or the nature of the question or issue sought to be determined and shall be sealed with the seal of the Court. It shall be served on the Third Party according to the rules relating to service of summons and shall, unless otherwise ordered, be served within two weeks from the
date of the order granting leave to issue the Third Party Notice. A copy of the plaint and copy of the affidavit of the defendant in support of the Third Party Notice shall be served on the Third Party along with the Third Party Notice.

 

(2) A copy of the Third Party Notice and of the affidavit of the defendant in support of the Third Party Notice shall be furnished to all parties to the suit within two weeks from the date of the order granting leave to issue the Third Party Notice.

 

25. Effect of Service of Notice.-

The Third Party shall, as from the time of the service upon him the Notice, be a party to the suit with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

 

26. Third Party to enter Appearance or Vakalatnama.-

If the Third Party desires to dispute the plaintiffs claim in the suit as against the defendant on whose behalf the Notice has been issued or his own liability to the defendant the Third Party shall enter an appearance in-person or a Vakalatnama, in the suit within two weeks from the service of the Notice:

 

Provided that a person so served and failing to appear within the said period of two weeks may apply to the Court for leave to appear and such leave may be given on such terms, if any, as the Court may think fit.

 

27. Consequence of Failure to enter Appearance or Vakalatnama.-

If the Third Party does not enter an appearance in person or a Vakalatnama he shall be deemed to admit the claim stated in the Third Party Notice and shall be bound by any judgment or decision in the suit whether by consent or otherwise, in so far as it is relevant to any claim, question or issue stated in the Notice.

 

28. Decree when Third Party makes Default in Appearance or Vakalatnama.

 

Where the Third Party makes Default in entering an appearance in person or a Vakalatnama in the suit,-

 

(1) in cases where the suit is tried and results in favour of the plaintiff, the Court which tries the suit may, at or after the trial, pass such decree in favour of the defendant against the Third Party as the nature of the case may require:

 

Provided that, execution thereof shall not issue without the leave of the Court until the decree against the defendant has been satisfied, and

 

(2) in cases where the suit is decided in plaintiff’s favour, otherwise than by trial the Court may, at any time after the decree against the defendant has been satisfied, on the application of the defendant pass such decree in favour of the defendant against the Third Party as the nature of the case may require.

 

29. Third Party to file Affidavit in Reply.-

If the Third Party enters an appearance in person or a Vakalatnama he shall file within two weeks thereafter an affidavit in reply to the affidavit of the defendant in support of the Third Party Notice, setting out his case in respect of the Third Party Notice, and his case, if any, in respect of the plaint.

 

30. Appearance or Vakalatnama of Third Party directions to be given.-

(1) Where the Third Party enters an appearance in person or a Vakalatnama and files his affidavit as required by the last preceding rule, and the suit appears on Board for directions before the Court it may,-

 

(a) order any claim, question or issue stated in the Third Party Notice to be tried in such manner, before, at or after the trial of the suit, as the Court may think fit and may, in that event, give the Third Party leave to defend the suit either along or jointly with any defendant, upon such terms as he ma
y think just, or to appear at the trial and take such part therein as he may think just and generally may make such orders and give such directions as may appear proper for having the questions and the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the Third Party shall be bound or made liable by any decree in the suit, or

 

(b) dismiss the Third Party Notice.

 

(2) Any order made or direction given under this rule may be varied or rescinded by the Court at any time before the disposal of the suit.

 

31. Defendant to apply for directions in certain cases.-

Where for any reason it is not possible for the Court to give direction on the Third Party Notice at the time when the suit appears on the Board by directions, the defendant issuing the Third Party Notice shall, within two weeks, after the filing of the affidavit in reply by the Third Party apply for directions. Upon the hearing of such applications, the Court may pass such orders and give such directions as are mentioned in the last preceding rule.

 

32. Costs.-

The Court may decide all questions of costs as between a Third Party and the other parties to the suit, and may order any one or more to pay the costs of any other, or others or give such directions to costs as the justice of the case may require.

 

33. Setting aside Third Party proceedings.-

Proceedings on a Third Party Notice may, at any stage of the proceedings, be set aside by the Court.

 

34. Right of the Third Party and of each successive Third Party to apply for Third Party Notice against other persons.-

 

(1) Where the Third Party makes against any person not already a party to the suit (to be called ‘the Second Third Party’) such a claim as is mentioned in rule 23 he may by leave of the Court issue a Third Party Notice to that effect.

 

(2) Where the Second Third Party in his turn makes such a claim as is mentioned in rule 23 against any person not already a party to the suit (to be called ‘the Third Party’) or where each successive Third Party in his turn makes such a claim against any person not already a Party to the suit, such Second Third Party or any successive Third Party may, by leave of the Court issue a Third Party Notice to that effect.

 

(3) The provisions contained in the preceding rules as to Third Party Procedure shall, with any necessary modification apply to all cases where Third Party Notice have been issued, where at the instance of the Third Party or any successive Third Party.

 

35. Right of defendant to issue Third Party Notice against co-defendant.-

(1) Where a defendant makes against a co-defendant such a claim as is mentioned in rule 23 he may, without leave of the Court, issue and serve on such co-defendant within six weeks from the service of the summons upon him (the defendant making the claim) a notice stating the nature and ground of such claim and shall at the same time file an affidavit in support of such claim and furnish copies thereof to all parties in the suit.

 

(2) The provisions contained in the preceding rules regarding Third Party Procedure shall, with necessary modification, apply to cases where a defendant has issued such notice against a co-defendant, but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the suit.

 

36. Third Party proceeding in a counter-claim.-

Where in any suit a counter-claim is made by a defendant the provisions contained in the preceding rules regarding Third Party Procedure shall, with any necessary modifications, apply in relation to the count
er-claim as if the subject-matter of the counter-claim were the subject-matter of the suit, and as if the person making the counter-claim were the plaintiff and the person against whom it is made a defendant.”]

 

1. Rules 23 to 36 subs, for rules 23 to 30 by Notification No. P. 0102/77, published in the Maharashtra Government Gazette, Pt. IV-ka, dated 31st December, 1987.

 

Delhi.-

Same as in Punjab.

 

Gujarat.-

In Order VIII, after rule 10, insert the following rules, namely:- ;

“11. Parties to addresses.-

 

Every party, whether original, added or substituted, who appears in any suit or other proceedings shall on or before the date fixed in the summons or notice served on him as the date of hearing, file in court a memorandum in writing stating his address for service, and if he fails to do so, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect, and the Court may make such order as it thinks fit. The address so given shall hold good throughout the interlocutory proceedings and appeals and also for a further period two years from the date of final decision and for all purposes including those of execution:

 

Provided that this rule shall not apply to a defendant who has not filed a written statement but who is examined by the Court under section 7 of the Dekkhan Agriculturists Relief Act, 1879, or otherwise, or in any case where the Court permits the address for service to be given by a party on a date later than that specified in this rule.

 

12. Applicability of Rules 20, 22, 24 and 25, Order VII, to addresses for service.- Rules 20, 22, 24 and 25 of Order VII shall apply, so far as may be, addresses for service filed under the last preceding rule.” (w.e.f. 1-11-1966)

 

Himachal Pradesh.-

Same as in Punjab.

 

Madhya Pradesh.-

In Order VIII, after rule 10, insert the following rules, namely:-

“11. Registered address.-

 

Every defendant in a suit or opposite party in any proceedings, shall on the first day of his appearance in Court, file a memorandum giving an address for service on him of any subsequent process. The address shall be within the local limits of such Civil District in which the suit or petition is filed, or if an address within the local limits of such Civil District cannot conveniently be given, within the local limits of such Civil District in which the party ordinarily resides.

 

This address shall be called the ‘registered address’ and it shall hold good throughout interlocutory proceedings and appeal and also for a further period of two years from the date of final decision and for all purposes including those of execution.

 

12. Consequence of non-filing of registered address.-

(1) If the defendant or the opposite party fails to file a registered address as required by Rule 11, he shall be liable, at the discretion of the Court, to have his defence struck out and to be placed in the position as if he had made no defence.

 

An order under this Rule may be; passed by the Court suo motu or on the application of any party.

 

(2) Where the Court has struck out the defence under sub-rule (1) and has adjourned the hearing of the suit or the proceeding and where the defendant or the opposite party at or before such hearing appears and assigns sufficient cause for his failure to file the registered address he m
ay upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit or the proceedings as if the defence had not been struck out.

 

(3) Where the Court has struck out the defence under sub-rule (1) and has consequently passed a decree or order, the defendant or the opposite party, as the case may be, may apply to the Court by which the decree or order was passed for an order to set aside the decree or order; and if he files a registered address and satisfies the Court that he was prevented by any sufficient cause from filing the address, the Court shall make an order setting aside decree or order as against him upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit or proceeding:

 

Provided that where the decree is of such a nature that it cannot be set aside against such defendant or opposite party only it may be set aside as against all or any of the other defendants or opposite parties.

 

13. Rules 20, 22 and 23 of Order VII shall apply, so far as may be, to addresses for service filed under Rule 11.” (w.e.f. 16-9-1960)

 

In Order VIII, omit rules 11 and 12. (w.e.f. 14-5-1984)

 

Patna.-

In Order VIII, after rule 10, insert the following rules, namely:-

 

“11. Every party whether original, added or substituted, who appears in any suit or other proceedings shall, at the rime of entering appearance to the summons, notice or other process served on him file in court a statement stating his address for service and if he fails to do so he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect and the Court may make such order as it thinks just.

 

12. Rules 20 and 22 of Order VII shall apply, so as far as may be to address for service filed under the preceding rule.”

 

Punjab and Haryana.-

In Order VIII, after rule 10, insert the following rules, namely:-

 

“11. Every party, whether original, added or substituted, who appears in any suit or other proceedings shall on or before the date fixed in the summons, notice or other process served on him as the date of hearing, file in Court a proceeding staring his address for service and if he fails to do so, he shall be have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect and the Court may make such order as it thinks just.

 

12. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under the preceding rule.” (w.e.f. 24-11-1927)

 

Note.-Rule 11 (Punjab). This rule applies to defendants who are corporations as well as the other defendants. The Rule is mandatory so far as the filing of the proceeding stating the addresses for service is concerned; but the matter is left to the discretion of the Court and it is not bound to strike off the defence of the defaulting party in every case.

 

Rajasthan.-

In Order VIII, after rule 10, insert the following rules, namely:-

 

“11. (1) Every party whether original, added or substituted who appears in any suit or other proceeding shall on or before the date fixed in the summons or notice served on him as the date of hearing, file in Court a memorandum stating his address for service and if he fails to do so he shall be liable to have his defence, if any, struck out and t
o be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect, and the Court may make such order as it thinks just.

 

(2) Where the Court has struck out the defence under sub-rule (1) and has adjourned the hearing of the suit or the proceeding and where the defendant or the opposite party at or before such hearing, appears and assigns good cause for his failure to file the registered address he may upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit or the proceeding as if the defence has not been struck out.

 

(3) Where the Court has struck out the defence under sub-rule (1) and has consequently passed a decree or order, the defendant or the opposite party, as the case may be, may apply to the Court by which the decree or order was passed for an order to set aside the decree or order, and if he files a registered address, and satisfies the Court that he was prevented by any sufficient cause from filing the address, the Court shall make an order setting aside the decree or order as against him upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or proceeding:

 

Provided that where the decree or order is of such a nature that it cannot be set aside as against such defendant or opposite party only it may set aside as against all or any of the other defendants or opposite parties.

 

12. Rules 19(2), 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under the preceding rule.” (w.e.f. 24-7-1954)

 

ORDER VIIIA

 

Andhra Pradesh.-

Same as in Madras.

 

Karnataka.-

After Order VIII, insert the following Order, namely:-

 

“ORDER VIIIA

THIRD PARTY PROCEDURE

 

1. (1) Where in respect of the claim made against him in the suit, a defendant claims to be entitled to contribution from or indemnity against any person not already a party to the suit (hereinafter called the third party) he may, by leave of Court, issue a notice {hereinafter called the third party notice) to that affect sealed with the seal of the Court.

 

(2) An application for leave to issue such notice shall be filed along with the written statement of the said defendant and be accompanied by a draft of the notice sought to be issued. The notice shall state the nature and grounds of the claim and when the draft of the same is approved by Court with or without corrections, it shall be served on the third party together with a copy of the plaint and a copy of the said defendant’s written statement in the manner prescribed for the service of summons.

 

2. (1) On being served with such notice the third party does not enter appearance on or before the date fixed therein for his appearance he shall be deemed to admit the validity of the decree that may be passed against the defendant, on whose behalf the notice was issued, whether, upon context or consent or otherwise, and to admit his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:

 

Provided that a person so served and failing to appear may, at any time before the disposal of the suit, apply to Court leave to appear and the Court may grant such leave upon such terms, if any, as it may think fit to impose.

 

(2) Where the third party does not enter appearance in the suit and the suit is decreed upon contest or consent or otherwise against the defendant on whose behal
f the notice was issued, the Court may in the said decree make such directions as to contribution or indemnity, as the case may be, against the third party and in favour of the said defendant as the circumstances of the case may require:

 

Provided that the execution thereof shall not issue against the third party without the leave of the Court until after satisfaction by such defendant of the decree against him.

 

3. If the third party desires to dispute either the claim made against him in the third party notice or the plaintiff’s claim in the suit or both, he shall enter appearance in the suit or before the date fixed therefor in the notice.

 

4. When the third party enters appearance under rule 3 or upon leave being granted under the proviso to sub-rule (1) of rule 2 he shall apply to Court for directions as to further proceedings to be taken on the notice setting out his case or pleas in respect of the same. Notice thereof shall be given both to the defendant on whose behalf the third party notice was issued as well as to the plaintiff, fixing as early date for its hearing.

5. (1) On hearing of such application,-

 

(a) if the Court is of the opinion either that the claim made in the third party notice is prima facie not warranted or that is not so intimately connected with the plaintiffs claim in the suit as to render its being conveniently tried along with the plaintiff’s claim in the suit, or that its trial in the suit will unduly prolong or hamper the trial of the suit, the Court may dismiss the proceedings on the third party notice;

 

(b) if the Court is satisfied that there is a question to be tried as to the liability of the third party to make the contribution or pay the indemnity claimed, in whole or in part, and that it is just and convenient to try the same in the suit itself the Court may order the question of such liability as between third party and the defendant giving notice, to be tried in such manner as it may direct, and may by the said order also give liberty to the third party to defend the suit itself upon such terms as may just.

 

(2) When the Court proceeds under clause (b) of sub-rule (!) it shall also give such directions as may be necessary for the delivery of pleadings, production of documents or the taking of further appropriate proceedings in the suit.

 

(3) If upon trial a decree comes to be passed either on contest or otherwise against the defendant on whose behalf notice was given, the Court shall in such decree makes such direction as to contribution or indemnity, as the case may be, against the third party and in favour of the said defendant as the circumstances of the case may require, and also as to whether execution in respect of such direction against the third party shall or shall not be conditional upon the defendant satisfying the decree against him.

 

(4) The Court, while making such decrees, may decide all questions of costs as between the third party and other parties and may order any one or more to pay the costs of any other or others and give such directions as the costs as the justice of the case may require.

 

6. (1) Where the Court dismisses the proceedings on a third party notice under clause (a) of sub-rule (1) of rule 5, the claim made in the third party notice shall be deemed to have been left undecided, and the defendant on whose behalf notice was issued will be at liberty to take such other independent proceeding in respect thereof as may be open to him, as if no such notice had been issued by him.

 

(2) Where the Court decides to proceed under clause (b) of sub-rule (1) of rule 5, the third party shall, as from the date on which third party notice was served on him, be a party to the suit and shall have-

 

(a) the same rights as respects the claims made against him by or the decree passed against him in favour of the defendant on whose behalf the notice was issued, as if he had been sued in the ordinary way by the said defendant; and

 

(b) where he is given the liberty to defend the suit itself, the same rights as respects his defence in the decree passed therein as if he had been sued in the ordinary way by the plaintiff in the suit.

 

(3) On the making of an order under clause (b) of sub-rule (1) of rule 5, the cause-title of the suit shall be amended by inserting the name of the third party in the array of defendants, with the addition in brackets after his name the words Third party on the notice of the defendants served on’.” (w.e.f. 30-3-1967).

 

Kerala.-

Same as in Madras. (9-6-1959)

 

Madras.-

After Order VIII, insert the following Order, namely:-

 

“ORDER VIIIA

THIRD PARTY PROCEDURE

 

1. Third party notice.-

Where a defendant claims to be entitled to contribution from indemnity against any person not already a party to the suit (hereinafter called a Third Party) he may, by leave of the Court, issue a notice (hereinafter called a Third Party Notice) to that effect, sealed with the seal of the Court. The notice shall state the nature and grounds of the claim. Such notice shall be filed into Court with a copy of the plaint and shall be served on the Third Party according to the rules relating to the service of summons.

 

2. Effect of notice.-

The Third Party shall, as from the time of the service upon him of the notice, be deemed to be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

 

3. Default by third party.-

If the Third Party desires to dispute the plaintiffs claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the Third Party may enter appearance in the suit on or before the date fixed for his appearance in the notice. If he does not enter appearance he shall be deemed to admit the validity of the decree that may be obtained against such defendant whether by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the Third Party Notice:

 

Provided always that a person so served and failing to appear may apply to the Court for leave to appeal, and leave may be given upon such terms, if any, as the Court shall think fit.

 

4. Procedure on default.-

Where Third Party does not enter appearance in the suit and the suit is decreed by consent or otherwise in favour of the plaintiff, the Court may pass such decree as the nature of the case may require against the Third Party and in favour of the defendant on whose behalf notice was issued:

 

Provided that execution thereof shall not be issued without leave of the Court until after satisfaction by such defendant of the decree against him.

 

5. Third Party directions.-

If the Third Party enters appearance, the defendant on whose behalf notice was issued may apply to the Court for directions; and the Court may, if satisfied that there is a question to be tried as to the liability of the Third Party to make the contribution or pay the indemnity claimed, in whole or in part, order the question of such liability, as between the Third Party and the defendant
giving the notice, to be tried in such manner, at or after the trial of the suit, as the Court may direct; if not so satisfied may pass such decree or order as the case may require.

 

6. Leave to defend.-

The Court may upon the hearing of the application mentioned in rule 5, give the Third Party liberty to defend the suit upon such terms as may be just, or to appear at the trial and taken such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered or amendments to be made and give such directions as proper for the most convenient determination of the question or questions in issue, and as to the mode and extent is or to which the Third Party shall be bound or made liable by the decree in the suit.

 

7. Costs.-

The Court may decide all questions of costs, as between the Third Party and the other parties to the suit, and may order any one or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require.

 

8. Questions between co-defendants.-

Where a defendant claims to be entitled to contribution from or indemnity against any other defendant to the suit, a notice may be issued and the same procedure shall be adopted for the determination of such questions between the defendants as would be issued and taken, if such last-mentioned defendant were Third Party; but nothing herein contained shall prejudice the rights of the plaintiffs against any defendant in the suit.

 

9. Further parties.-

Where any person served with a Third Party Notice by a defendant under these rules to be entitled to contribution from or indemnity against any person not already a party to the suit, he may, by leave of the Court, issue a Third Party Notice to that effect, and the preceding rules as to the Third Party procedure shall apply mutatis mutandis to every notice so issued and the expressions “Third Party Notice” and “Third Party” in these rules shall apply to and include every notice so issued and every person served with such notice respectively.” (w.e.f. 5-9-1968)

 

 

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Civil Procedure Code 1908

 

Indian Laws – Bare Acts

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