In this article, Aswathi Vakkayil discusses Additional Written Statement under Order 8 Rule 9 of CPC,

Introduction

The expression ‘additional written statement’ has not been defined in the Civil Procedure Code, 1908 (C.P.C). According to a legal dictionary, the term ‘written statement’ means a pleading for defence. In other words, a written statement is a reply of the plaint, in which defendant deny or admit each and every allegation or facts given in the plaint. However, an additional written statement is different from a written statement. As filing the written statement is the right of the defendant but the additional statement is based on the discretion of the court. Further, in written statement defendant can put his case also under the heading additional plea, and can state new facts or ground which is necessary to defeat the opponent. If the defendant wants to put his own claim against the plaintiff he can put it by way of set-off and counterclaim u/o 8 Rule 6 and 6A of C.P.C. However, once the written statement is filled the defendant cannot file a counterclaim or set off, unless it is an additional written statement.

Additional Written Statement under Order 8 Rule 9 of CPC

The rule 9 of Order 8 was omitted by the CPC (Amendment) Act, 1999 (46 of 1999), has been restored by CPC (Amendment) Act, 2002 (22 of 2002) with a fixed a time period. The effect of the change is that subsequent pleadings shall be continued to be filed and the court shall fix a time for presenting the same, which shall be not more than thirty days.
Merely because the amendment sought is alleged to be inconsistent with the previous case of the defendant, it is not a good reason for rejecting the application of the defendant for amendment. As per general rule, in cases of this nature the leave to amend or to file additional written statement is granted unless the party filing for amendment is acting malafidely  or by the parties own blunder if some injury inflicted to his opponent which cannot be compensated by award of costs; otherwise whether the original omission arose from negligence, carelessness, or accidental error, the defect may be allowed to be remedied if no injustice is done to the other side.

Legal provision for an additional statement

Before Amendment Act, Order 8, Rule 9 under the nomenclature “subsequent pleadings” read as follows :

“9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit, but the Court may any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.”

By the Amendment Act of 2002, Rule 9, Order 8 was re-enacted as follows :

“9. Subsequent pleadings.– No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counterclaim 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 or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.”

In pursuance to the amended  Rule 9 of the Order 8, the Court was given power under extraordinary and in rare circumstances to require at any time written statement or additional written statement to be filed in a case within the outer limit of 30 days to be fixed by the Court. The only difference between the old Code and the new Code as far as Order 8, Rule 9 is concerned, is that in old Code it was the discretion of the Court to fix the time for presenting the written statement, nonetheless, in the new code there is a fixed period of 30 days for presenting written statement or additional statement. Hence, after amendment, the Court may permit the filing of the written statement or an additional written statement from any of the parties, but the Court must have to fix an outer limit for presenting the statement which should not be less than 30 days. Moreover, the power under Order 8, Rule 9 is to be used only in exceptional cases and for reasons recorded in writing and cannot be exercised by the defendant as a matter of right. Such exercise of discretion must be judicial and not capricious and such right must be keeping with the spirit of the amended Code.

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Can new ground of defence be included in the additional written statement?

No pleading subsequent to the written statement of a defendant other than by way of defence to 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 for presenting the same. But any ground of defence which has arisen after the institution of the suit or the representation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be, in his written statement or additional written statement.1

When an additional written statement cannot be filed?

It is the discretion of the court to accept the request for an additional written statement but in certain cases, the court has been empowered to strike out the pleadings.2 The following are the matter when the court may strike out pleadings at any stage  of the proceedings order to be struck out or amended any matter in any pleading–

“(a) which may be unnecessary, scandalous, frivolous or vexatious, or

 (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

 (c) which is otherwise an abuse of the process of the court.”

Judicial precedents

It has been held by Court that if the defendant introduces a new case, it is fair to allow the plaintiff to file his subsequent pleading.3 Also, it has been laid down by the court that If the plaintiff amends (with leave) his plaint, the defendant should be given leave to file a subsequent pleading.4 Conversely, if the defendant amends his written statement, then leave should be granted to permit the plaintiff to file his additional pleading, to react to it.
The leave to file an additional pleading may be granted to take into account subsequent events, occurring after the filing of the suit and to avoid multiplicity of suits.5 Further, in the case of Shiva Kumar Singh v. Kari Singh, that when a minor attains majority during the pendency of litigation and is not satisfied with the pleading filed by the guardian ad litem, the minor should be given leave under this rule.6

Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally & Ors – Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement.

Furthermore, in case of Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally & Ors.7 the Hon’ble Supreme court held that even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff. It was further observed that mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. If there is delay amendment of pleadings or filing of an additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement then it could be easily be compensated by cost.

Apart from that, even if the examination of a prosecution witness or his cross-examination is over, then also, it was open to the court to accept the additional written statement filed by the other party by putting some cost penalty for the delay.

Is amendment of pleadings different from the additional written statement?

Rule 17 of Order VI provides for amendment of pleadings. A pleading shall mean plaint and written statement. 8 If the plaint is amended, the defendant gets a right to amend his written statement to answer the contentions put forward in the amended plaint. The defendant may file an additional written statement in respect of the matters covered by the amendment of the plaint.

While additional written statement is governed by Rule 9 of Order VIII which provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set off or counterclaim shall be presented except by leave of the Court and upon such terms as the Court thinks fit within a fixed period a time for presenting the same  of not more than thirty days for presenting the same.9 But the Court may, at any time, require a written statement or additional written statement from any of the parties. As a matter of practice, Courts allow the additional written statement to be filed after the plaint is amended. Such practice is recognised by the Supreme Court in  case of Gurdial Singh and others v. Raj Kumar Aneja and others.10

Analysis

From the discussion above it can be analysed that the Court can grant leave on such terms as it thinks fit, however, on its own at any time it, can require a party to file written statement or an additional written statement from any of the parties and fix the time period, once the leave is granted, either the party may file a supplementary statement 11 or the dependant upon the allegations made in the plaint may make additional pleas 12. However, no supplemental written statement can be filed after the Plaintiff’s case is closed. Rule 9, therefore, invests the Court with the widest possible discretion and enables it to accept a written statement filed subsequently, after the settlement of the issues upon such terms as the Court thinks fit.13

It may also be worthwhile to notice that the rules of procedure like the provisions of Order 8, Rule 9 of the Code of Civil Procedure are aimed at not only advancing the cause of justice but also doing substantial justice between the parties. In no case, the rule of procedure can be brought to be interpreted in a manner, which may thwart the judicial process. The ultimate aim of all laws including procedural laws has to finally set at rest controversies between the parties. 14

Thus, while allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. Hence, the last determining factor is whether filing an additional written statement of there is no injustice or prejudice caused to the other party and also it would help that would help the court to decide the real controversy between the parties.

Conclusion

It can be concluded under Order VIII Rule 9 of the Code of Civil Procedure while filing an additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent please in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is a well-established principle that the courts should be more generous in allowing the amendment of a written statement than in the case of the plaint. Further, it is the duty of the Judge to prevent misuse of the pleadings by a litigant. The courts have to ensure that what could not be achieved by getting the pleading amended should not be allowed to be got over, by filing reply or rejoinder as the case may be and vice versa.

Endnotes

1.  Order VIII, Rules 8 and 9 of C.P.C
2.  Order VI Rule 16 CPC
3.  Shakoor v. Jaipur Development Authority, AIR 1987 Raj 19.
4.  Salicharan v. Sukanti, AIR 1979 Orissa 78.
5.  Ramaswami Naidu v. Pethu Pillai, AIR 1965 Mad 9.
6.  AIR 1962 Pat 159
7.  [2009] 15 SCC 528
8.  Order VI Rule 1
9.  Pt. Govind Ram v. Ram Saroop, AIR 1999 JK 63
10.  AIR 2002 SC 1003
11.  Nemichand Burad v. Shri Jorawarmal, AIR 2005 Raj 235
12.  GTL Ltd v. Maharashtra Rajya Rashtriya Kamgar Sangh, 2006 (3) MHLj 646
13.  Binda Prasad v. United Bank of India Ltd., AIR 1961 Pat 152; Dineshwar Prasad Bakshi v. Parmeshwar Prasad Sinha, AIR 1989 PAt 139.
14.  Pt. Govind Ram v. Ram Saroop, AIR 1999 JK 63.