ORDER VI

PLEADINGS GENERALLY

1. Pleading.—“Pleading” shall mean plaint or written statement.

¹[2. Pleading to state material facts and not evidence.—(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words].

1. Substituted by Act No. 104 of 1976, for former Rule 2, w.e.f. 1st February, 1977.

3. Forms of pleading. - The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings.

4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

5. Further and better statement, or particulars.— ¹[* * *].

1. Omitted by Act No.46 of 1999, Section 16 (w.e.f. 1-7-2002).

6. Condition precedent.—Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.

7. Departure.—No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation f fact inconsistent with the previous pleadings of the party pleading the same.

8. Denial of contract.—Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.

9. Effect of document to be stated.—Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

10. Malice, knowledge, etc.,—Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

11. Notice.—Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred are material.

12. Implied contract, or relation.—Wherever any contract or any relation between any persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

13. Presumptions of law.—Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim).

14. Pleading to be signed.—Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

¹[14A. Address for service of notice.—(1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in Rule 14, regarding the address of the party.

(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition.

(3) The address furnished in the statement made under sub-rule (1) shall be called the “registered address” of the party, and shall, until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit or in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of two years after the final determination of the cause or matter.

(4) Service of any process may be effected upon a party at his registered address in all respects as though such party resided thereat.

(5) Where the registered address of a party is discovered by the Court to be incomplete, false or fictitious, the Court may, either on its own motion, or on the application of any party, order -

(a) In the case where such registered address was furnished by a plaintiff, stay of the suit, or

(b) In the case where such registered address was furnished by a defendant, his defence be struck out and he be placed in the same position as if he had not put up any defence.

(6) Where a suit is stayed or a defence is struck out under sub-rule (5), the plaintiff or, as the case may be, the defendant may, after furnishing his true address, apply to the Court for an order to set aside the order of stay or, as the case may be, the order striking out the defence.

(7) The Court, if satisfied that the party was prevented by any sufficient cause from filing the true address at the proper time, shall set aside the order of stay or order striking out the defence, on such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or defence, as the case may be.

(8) Nothing in this Rule shall prevent the Court from directing the service of a process at any other address, if, for any reason, it thinks fit to do so.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

15. Verification of pleadings.—(1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

¹[(4) The Person verifying the pleading shall also furnish an affidavit in support of his pledings.]

²[16. Striking out pleadings.—The Court may 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 trail of the suit, or

(c) Which is otherwise an abuse of the process of the Court.]

1. Sub-rule (4) added by Act No. 46 of 1999, Sec 16 (w.e.f. 1-7-2002).

2. Substituted by Act No. 104 of 1976, for former Rule 16, w.e.f. 1st February, 1977.

¹[17. Amendment of pleadings.—The Court may at any statge of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just,and all such amendments shall be made as any necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trail has commenced,unless the court come ti the concusion that in spite of due diligence,the party could not have raised the matter before the commencement of trail.]

1. Substituted by Act No. 22 of 2002, S. 7 (w.e.f. 1-7-2002).

¹[18. Failure to amend after order.—If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.]

1. Substituted by Act No. 22 of 2002, S. 7 (w.e.f. 1-7-2002).

ORDER VII

PLAINT

1. Particulars to be contained in plaint.—The plaint shall contain the following particulars:—

(a) The name of the Court in which the suit is brought;

(b) The name, description and place of residence of the plaintiff;

(c) The name, description and place of residence of the defendant, so far as they can be ascertained;

(d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

(e) The facts constituting the cause of action and when it arose;

(f) The facts showing that the Court has jurisdiction;

(g) The relief which the plaintiff claims;

(h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

(i) A statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees, so far as the case admits.

2. In money suits.—Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:

But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, ¹[or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for].

1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

3. Where the subject-matter of the suit is immovable property.—Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

4. When plaintiff sues as representative.—Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.

5. Defendant’s interest and liability to be shown.—The plaint shall show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.

6. Grounds of exemption from limitation law.—Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed:

¹[Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

7. Relief to be specially.—Every Plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent a if it had been asked for. And the same Rule shall apply to any relief claimed by the defendant in his written statement.

8. Relief founded on separate grounds.—Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.

¹[9. Procedure on admitting plaint.— Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 or Order V. it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants]

1. Substituted by Act No. 22 of 2002, S. 8 (w.e.f. 1-7-2002).

10. Return of plaint.—(1) ¹[Subject to the provisions of Rule 10A, the plaint shall] at any stage of the suit be returned to be: presented to the Court in which the suit should have been instituted.

²[Explanation.—For the removal oil doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.]

(2) Procedure on returning plaint.— On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

¹[10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.—(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court-

(a) Specifying the Court in which he proposes to present the plaint after its return,

(b) Praying that the Court may fix a date for the appearance of the parties in the said Court, and

(c) Requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit.—

(a) Fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and

(b) Give to the plaintiff and to the defendant notice of such date for appearance.

(4) Where the notice of the date for appearances is given under sub-rule (3).—

(a) It shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise direct, and

(b) The said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.

1. Inserted by Act No. 104 of 1976, w.e.f. 1^st February, 1977.

10B. Power of appellate Court to transfer suit to the proper Court.—(1) Where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted, (whether such Court is within or without the State in which the Court hearing the appeal is situated), and fix a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs.

(2) The direction made by the Court under sub-rule (1) shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit.]

11. Rejection of plaint.—The plaint shall be rejected in the following cases :-

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) Where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law:

¹[(e) where it is not filed in duplicate;

²[(f) where the plaintiff fails to comply with the provisions of rule 9:]]

³[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

1. Inserted by Act No. 46 of 1999, S. 17 (w.e.f. 1-7-2002).

2. Substituted by Act No. 22 of 2002, S. 8 (w.e.f. 1-7-2002).

3. Inserted by Act No. 104 of 1976, w.e.f. 1^st February, 1977.

12. Procedure on rejecting plaint.—Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.

13. Where rejection of plaint does not preclude presentation of fresh plaint.—The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

DOCUMENTS RELIED ON IN PLAINT

¹[14. Production of document on which plaintiff sues or relies.—(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, 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 plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, 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 document produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.]

1. Substituted by Act No. 46 of 1999, S. 17 (w.e.f. 1-7-2002).

2. Substituted by Act No. 22 of 2002, S. 8 (w.e.f. 1-7-2002).

15. Statement in case of documents not in plaintiff’s possession or power.— ¹[* * *]

1. Rule 15 omitted by Act No. 46 of 1999, S. 17 (w.e.f. 1-7-2002).

16. Suits on lost negotiable instruments.—Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

17. Production of shop-book.—(1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.

(2) Original entry to be marked and returned—The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.

18. Inadmissibility of document not produced when plaint filed.— ¹[* *]

ORDER VIII

²[WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM]

1. Omitted by Act No. 22 of 2002, S. 8 (w.e.f. 1-7-2002).

2. Substituted by Act No. 104 of 1976, for the former heading, w.e.f. 1st February, 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. Substituted by Act No. 22 of 2002, S. 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 the 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. Inserted by Act No. 46 of 1999, S. 18 (w.e.f. 1-7-2002).

2. Substituted by Act No. 22 of 2002, S. 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 particular 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.—²[(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.

¹[(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. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Rule 5 renumbered as sub-rule (1) of that Rule by Act No. 104 of 1976, w.e.f.. 1st February, 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 lithe jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first heating 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 pronounced 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 affects, 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 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 sues 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.

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. Inserted by Act No. 104 of 1976, w.e.f.. 1st February, 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 counterclaims arid the plaintiff contends 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 counterclaim, 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 counterclaim may nevertheless be proceeded with.

6E. Default of plaintiff to reply to counter-claim.—If the plaintiff makes default in putting in a 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 counterclaim is established as a defence against the plaintiff’s claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

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 founded 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.

1. Inserted by Act No. 104 of 1976, w.e.f.. 1st February, 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. Inserted by Act No. 104 of 1976, w.e.f.. 1st February, 1977.

[8A. Duty of defendant to produce documents upon which relief is claimed by him.— ¹[* * *].

1. Omitted by Act No. 46 of 1999, S. 18 (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 excepted 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.

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 in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.]

1. Substituted by Act No. 22 of 2002, S. 9 (w.e.f. 1-7-2002).

ORDER IX

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

1. Parties to appear on day fixed in summons for defendant to appear and answer.— On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

¹[2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.— 2. Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule of Order VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if not withstanding such failure, the defendant attends in person by agent when he is allowed to appear by agent on the day fixed for his to appear and answer.]

1. Substituted by Act No. 22 of 2002, S. 10 (w.e.f. 1-7-2002).

3. Where neither party appears suit to be dismissed.— Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

4. Plaintiff may bring fresh suit or Court may restore suit to file.— Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for ¹[such failure as is referred to in Rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

1. Substituted by Act No. 104 of 1976, w.e.f. 1^st February, 1977.

5. Dismissal of suit where plaintiff after summons returned unserved, fails for one mouth to apply for fresh summons.—¹[(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of ²[seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that—

(a) He has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or

(b) Such defendant is avoiding service of process, or

(c) There is any other sufficient cause for extending the time,

In which case the Court may extend the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

1. Substituted by Act No. 24 of 1920, for the original sub-rule (1).

2. Substituted by Act No. 46 of 1999, S. 19, for the words “one month” (w.e.f. 1-7-2002).

6. Procedure when only plaintiff appears.— (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

¹[(a) When summons duly served— if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;]

(b) When summons not duly served— if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time— if it is proved that the summons was served on the defendant, but not in sufficient time to enable him, to appear and answer on the day fixed in the summons,

The Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

1. Substituted by Act No. 104 of 1976, for former clause (a), w.e.f. 1st February, 1977.

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.— Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing. appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed to his appearance.

8. Procedure where defendant only appears.— Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. Decree against plaintiff by default bars fresh suit.— (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this Rule unless notice of the application has been served on the opposite party.

10. Procedure in case of non-attendance of one or wore of several plaintiff’s.— Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

11. Procedure in case of non-attendance of one or more of several defendants.— Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person.— Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do not appear.

SETTING ASIDE DECREES EX PARTE

13. Setting aside decree ex parte against defendant.— In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may he set aside as against all or any of the other defendants also:

¹[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.]

²[Explanation.— Where there has been an appeal against a decree passed ex parte under this Rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this Rule for setting aside that ex parte decree.]

COMMENTS

Or. 9, Rule 13. Sufficient cause.

Doctor’s certificate.

The medical certificate of a private doctor is as good as that of a Government doctor. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 1221(1223)

Sufficient cause.

Unless sufficient cause’ is shown for nonappearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 2121(1222) (All).

The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 2121(1222) (All).

Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in view the peculiar facts and circumstances of each case. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 2121(1222) (All).

The sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence, which had been overlooked and thereby condoned earlier. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 2121(1222, 1223) (All).

In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 2121(1223) (All).

Even if the accused is found to be negligent, the other side could have been compensated by costs and the ex parte decree set-aside on such other terms and conditions as were deemed proper by the Trial Court. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 2121(1223) (All).

On account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the defendant is allowed opportunity to prove his case within a reasonable time. (G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 2121(1223) (All).

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

14. No decree to be set aside without notice to opposite party.— No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.