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Civil Procedure Code 1 - Cpc notes
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NOTE NO. 1 II SHRI SAI II
CODE OF CIVIL PROCEDURE, 1908
(© ALL RIGHTS RESERVED – No part of this notes may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise
without the prior permission of the author)
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Q. Write various Stages of Suit.
A. ESSENTIALS OF SUIT –
Following are considered to be the Essentials of a Suit –
I. TWO PARTIES –
Every Suit have Minimum Two Parties i.e. Plaintiff and Defendant.
II. CAUSE OF ACTION-
Every Suit must Contain a Cause of Action. It Contains of every
Fact which is necessary to be Proved.
III. SUBJECT-MATTER-
There must be some Rights or Property claimed in the Suit.
IV. RELIEF CLAIM-
In every Plaint, Relief claimed should be Specifically Stated.
STAGES OF SUIT-
Following are the Different Stages of Suit –
1. INSTITUTION OF SUIT –
Once the Suit is Instituted, it is Registered and Numbered. The
Person who wants Justice from the Civil Court of Law, has to file a Suit
(Civil Suit) before the Competent Court.
Order 1 - Parties to the Suit.
Order 2 - Framing of the Suit.
Order 3 - Recognised agent and pleader.
Order4 - Institution of Suit.
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These Order 1 to 4 helps the Plaintiff to file a Suit before the Court.
The Suit is always filed with the help of the Plaint.
2. ISSUE AND SERVICE OF SUMMONS (Section 27 to 29 and O.5, R.
1 to 30) –
The Next Stage after Institution of Suit is the Process of Issue and
Service of Summons to the Defendant/s or Respondent/s mentioned in
the Suit i.e. Plaint and Appeal i.e. Appeal Memo.
3. WRITTEN STATEMENT (W.S.) (O.8, R. 1 to 10) –
Upon the Receipt/ Service of Summons, along with the Copy of
Plaint and Documents, the duty is cast upon the Defendant to file a Written
Statement, answering all the points by the Plaintiff in his Plaint within a
Prescribed Days (i.e. 30+ 60 = 90) from the Date of Service of Summons
i.e. the Defendant has to answer to the Plaint and his way of answer is, '
Written Statement'.
4. EFFECT OF APPEARNACE AND CONSUQUENCES OF NON-
APPEARANCE (O.9, R.1 to 14)
The Plaintiff and Defendant have to appear before the Court on the
Dates specified either Personally or through his Advocate if the Plaintiff
or his Advocate does not Appear before the Court, the Court may
Dismissed to the Suit for Default.
Where the Plaintiff Present and the Defendant is absent after the
Service of Summons then the Court may passed an Order of 'Ex-Partee'
5. FRAMING OF ISSUES (O.14, R.1 TO 3) –
After filing of WS, the Next Stage is, "Settlement of Issues and
Determination of Suit on Issue of Law or on Issues agreed upon" by
which the Court comes to a Position to find out the Real Question in the
Controversy between the Parties i.e. Plaintiff and Defendant.
6. HEARING ON ISSUES-
The Court, after Settlement of Issues i.e. Framing of Issues between
the Plaint and WS that means there is Hearing of a Suit.
7. PRODUCTION OF EVIDENCE-
Both the Parties to the Suit are expected to Produce Documentary
and Oral Evidence to support to their Contention/ Pleading.
FACT + EVIDENCE = PROVED.
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8. EXAMINATION OF PARTIES AND WITNESSES (O. 10 and O. 16)
Witnesses of both the sides are Examined (Claim Affidavit as per
O. 18, R.4) and Cross Examined by the Advocates.
O. 10 to 13 and O.15 to 19 are helpful for this Stage.
9. FINAL ARGUMENTS WITH CASE LAWS (PRECEDENT) –
The Advocates of the respective Parties Plead their case by
Argument and in support of their Contents may bring to the Notice of the
Court by filing the Judicial Decisions of Superior Courts i.e. Precedents/
Case-laws.
10. JUDGEMENT AND DECREE (O. 20) –
Judge based on Issues Framed and taking into consideration
Material Facts/ Pleadings, Evidence, Acts and Case-laws, delivers his
Judgements.
The Decree is the summary of Judgement.
11. EXECUTION ( O.21, R. 1 TO 106) –
If the Suit is Decreed, the Decree-Holder has to file a Separate
Proceeding of Decree of known as, "Execution Proceeding".
The Application for the Execution Proceeding has to be filed only
after the Completion of the Period allowed for the Appeal (30 days from
the Date of Judgement and Decree).
12. APPEAL (O. 41) –
The Party Aggrieved by Judgement and Decree of the Trial Court,
may Prefer (File) an Appeal to the Appellate Court within the Period
stipulated.
Once the Appeal is Admitted and Stay granted for Operation the
Orders (Decrees) of the Lower Court, the Decree-holder cannot filed an
Execution Proceeding until the Appeal is Finally Dispose off.
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Q. State the essentials of "Plaint". Write in detail about when can a
Plaint be returned? And when can a Plaint be rejected?
OR
Write a Short note on – "Return of Plaint".
OR
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Write a short note on – "Rejection of Plaint".
A Order VII, Rule 1 to 18 deals with the provisions of
"Plaint".
Plaint = i. an accusation
OR
ii. a Charge.
PLAINT is the Document by which the Plaintiff puts the Machinery
of the Court into Motion.
That means Plaint is a Document by the Presentation of which a
Suit is Instituted/Filed in a Civil Court.
Plaint is the Statement of the Plaintiff. The Plaintiff filed a Suit
against the Defendant by Filing a PLAINT.
After Presentation of the Plaint, the Ministerial Staff of the Court
Registers the Same in the Filing Register and the Suit is numbered.
In other words, Section 26 of CPC stipulates that every Suit shall be
instituted/ files by the presentation of a Plaint. The Plaint must be
designed as per provisions of Order 7, Rule 1 and observing Rules of
Pleadings given in Order 6 Rule 1 to 4. The Plaint must be drafted as
the Legal Requirements of the Dispute in Mind.
ORDER VII, RULE 1 prescribes the Essentials or Particulars of the
Plaint –
A Plaint is a Statement of Claim, a Document, by Presentation of
which Suit is instituted.
Plaint's Object is to state the Grounds upon which the Assistance
of the Court is sought by the Plaintiff.
THE ESSENTIALS/ PARTICULARS OF PLAINT U/ORDER VII, RULE 1
are as follows-
I. The Name of the Court in which the Suit is brought or filed.
II. The Name, Description and the Place of Residence of the
PLAINTIFF.
III. The Name, Description and the Place of residence of the
DEFENDANT.
IV. Where the Plaintiff or Defendant is Minor or a Person of
Unsound mind, a Statement to that effect.
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V. The Facts constituting the Cause of Action and when it
arose.
VI. The Facts showing that the Court has Jurisdiction to try the
Suit.
VII. The Relief which the Plaintiff Claim (i.e. in Prayer Clause)
VIII. Where the Plaintiff has allowed a Set-ff or Relinquished a
Portion of his Claim i.e. the amount so Allowed or
Relinquished.
IX. Statement of the Value of the Subject Matter of the Suit for
the purpose of Jurisdiction and Court Fee.
IN MONEY SUITS (O.VII, R.2) –
Where the Plaintiff seeks the Recovery of Money then the Plaintiff
shall State the Precise Amount Claims.
If the Suit is for the account of Mesne Profit or for Movable
Properties i.e. Goods in the Possession the Defendant or for Debts
which cannot be Determined, approximate Amount or Value should be
Stated.
WHERE THE SUBJECT-MATTER OF THE SUIT IS IMMOVABLE
PROPERTY (O.VII, R.3) –
The Plaint should contained a Description of Property, sufficient to
Identify it by Indication of Survey Number, Area, Boundary Marks etc.
WHEN PLAINTIFF SUES AS REPRESENTATIVE (O.VII, R.4)
Where the Plaintiff Sues in a Representative Character, the Plaint
shall State not only that he has an actual Existing Interest in the Subject
Matter of Suit, but he has also to take necessary Steps to Enable him to
institute/ file a Suit concerning it.
DEFENDANT'S INTEREST AND LIABILITY TO BE SHOWN (O.VII, R.5) –
The Plaint should State the Interest and Liability of the Defendant
in the Subject Matter of the Suit.
GROUNDS FOR EXEMPTION FROM LIMITATION LAW (O. VII, R.6) -
If the Suit is Time Barred, the Plaint should State the Ground upon
which the Exemption from the Law of Limitation is claimed.
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RELIEF TO BE SPECIFICALLY STATED (O. VII, R.7) -
Every Plaint shall state Specifically the Relief which the Plaintiff
claim either Simply in the Alternative.
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Q. Write a Short note on – "Return of Plaint".
OR
Write a note on, "When can Plaint be Returned?"
A INTRODUCTION OF PLAINT-
O.VII, R.1 TO 17 deals with the provisions of "Plaint".
Plaint = i. an accusation
Or
ii. a Charge.
PLAINT is the Document by which the Plaintiff puts the Machinery
of the Court into Motion.
That means Plaint is a Document by the Presentation of which a
Suit is Instituted/Filed in a Civil Court.
Plaint is the Statement of the Plaintiff. The Plaintiff filed a Suit
against the Defendant by Filing a PLAINT.
After Presentation of the Plaint, the Ministerial Staff of the Court
Registers the Same in the Filing Register and the Suit is numbered.
In other words, Section 26 of CPC stipulates that every Suit shall be
instituted/ files by the presentation of a Plaint. The Plaint must be
designed as per provisions of Order 7, Rule 1 and observing Rules of
Pleadings given in Order 6 Rule 1 to 4. The Plaint must be drafted as
the Legal Requirements of the Dispute in Mind.
RETURN OF PLAINT (O.VII, R.10) –
O.VII, R. 10(1) of CPC deals with the reason of Return of Plaint -
Where at any Stage of the Suit, the Court Finds that it has no
Jurisdiction either Territorial or Pecuniary or with regard to Subject-
Matter of the Suit, the Court will RETURN THE PLAINT to be Presented
to the proper Court in which the Suit ought to have been filed.
PROCEDURE ON RETURNING PLAINT (O.VII, R. 10(2))
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The Judge shall Endorse thereupon (Plaint) –
i. the Date of Presentation of Plaint to the Court.
ii. the Date of Return of Plaint.
iii. the Name of the Party Presenting the Plaint.
iv. the Reasons for Returning the Plaint.
ORDER VII, RULE 10(A) –
This Rule lays down the Procedure to be followed by the Court
before the Plaint Ordered to be presented to the Proper Court. The
Procedure to be followed as under-
1. Where, in any Suit, after the Defendant has appeared, the Court
is of the Opinion that the Plaint should be Returned, he 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 (judge) Proposes to Present
the Plaint after its Returned.
b. Praying that the Court may fix a Date for the Appearance of
the Parties in the Court.
c. Requesting that the Notice of the Date so fixed may be given
to him (Plaintiff) and to the Defendant.
3. Where an Application is made by the Plaintiff u/sub-rule (2), the
Court shall before Returning the Plaint and the Order for Return
of the Plaint was made by it, on the ground that it (Court) 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
of Appearance.
4. Where the Notice of the Date for Appearance is given u/sub-rule
(3)-
a. it shall not be Necessary for the Court in which the Plaint is
Presented, to serve to the Defendant with Summons for
Appearance in the Suit &
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b. the said Notice shall be deemed to be Summoned 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 (Court) the
Plaint was Returned.
5. Where the Application made by the Plaintiff u/sub-rule (2) is
allowed by the Court, the Plaintiff shall not be Entitled to Appeal
against the Order for Returning the Plaint.
Therefore, in the Return of Plaint, Court should not Dismiss the
Suit but Returned the Plaint to be Presented to the Proper Court.
CASE LAW –
JAGINDER TULI v/s BHATIA – (1997)1 SCC 502 -
When after Evidence has been taken of the Parties, the Court was
Satisfied that the Court has No Jurisdiction to try the case, the Plaint
was Ordered to be Presented to the Proper Court for Trial.
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Q. Write a Short note on – "Rejection of Plaint"
A. INTRODUCTION OF PLAINT –
O.VII, R.1 TO 17 deals with the provisions of "Plaint".
Plaint = i. an accusation
Or
ii. a Charge.
PLAINT is the Document by which the Plaintiff puts the Machinery
of the Court into Motion.
That means Plaint is a Document by the Presentation of which a
Suit is Instituted/Filed in a Civil Court.
Plaint is the Statement of the Plaintiff. The Plaintiff filed a Suit
against the Defendant by Filing a PLAINT.
After Presentation of the Plaint, the Ministerial Staff of the Court
Registers the Same in the Filing Register and the Suit is numbered.
In other words, Section 26 of CPC stipulates that every Suit shall be
instituted/ files by the presentation of a Plaint. The Plaint must be
designed as per provisions of Order 7, Rule 1 and observing Rules of
Pleadings given in Order 6 Rule 1 to 4. The Plaint must be drafted as
the Legal Requirements of the Dispute in Mind.
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REJECTION OF PLAINT (O.VII, R.11) -
The Plaint shall be Rejected in the following cases-
a. Where it (i.e. Plaint) does not Disclose a Cause of Action.
b. Where the Relief Claimed is Undervalued and the Plaintiff on
being required by the Court to so 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
written upon Paper (i.e. Court Fee Stamp) Insufficient Stamp
and the Plaintiff on being required by the Court to Supply 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 an law.
e. Where it (Plaint) is not file in Duplicate (w.e.f. 1st July, 2002)
f. Where the Plaintiff Fails to Comply with the Provisions of Code of
Civil Procedure, 1908.
A Portion of the Plaint cannot be Rejected. It may be noted that the
Reasons seems to be that when the Plain is Rejected, the Plaintiff can file
a Fresh Plaint in respect of the Same Cause (O.7, R.13)
CASE LAW – P.ANWARU HASAN VS. RAGHBIR SINGH – (AIR 1971 Raj.
234) –
A Suit cannot be Dismissed under this Rule but it has to be
Rejected.
CASE LAW - T. ARVINDAM v/s T.V. SATYAPAL – (AIR 1977 SC 2421) -
If on meaningful not formal reading of Plaint, it is found Manifestly
Vexatious, Merit less in the sense of not Disclosing a Clear Right to
Sue, the Plaint is to be Rejected.
CASE LAW - SALEEM BHAI v/s STATE OF MAHARASHTRA – (AIR 2003
SC 759) -
It was held with reference to O.VII, R.11 of the Code that the
Relevant Facts which need to be looked in to for Deciding an
Application there under are the Averments in the Plaint.
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Q. What is mean by "PLEADING?" What are its essential attributes?
A O.6 of CPC explains the Provisions "PLEADING GENERALLY".
PLEADING = A Formal Statement of the Cause of Action
or Defence
As per O.VI, R. 1 –
Pleading shall mean Plaint or Written Statement.
Pleadings are the Backbone of Litigation.
Pleadings are the Statements of the Parties i.e. Plaintiff and
Defendant in Writing, setting out their Contention and Claims, bringing
or giving Details, so that the Opposite Party may Known and give Reply.
Evidence produced by any Party cannot be Considered without Pleading.
According to P.C.Mogha – "Pleading are Statements Written, filed
by each Party to a Suit, stating his Contention at the Trial and giving
such Details, as his Opponent Needs to Know in Order to Prepare his
case in answer".
Pleadings of Plaintiff are found in Plaint and Pleadings of
Defendant are found in Written Statement.
Pleading is a base of Civil Suit. Pleading is a Statement describing
Material Facts on the basis of which party to the Suit is either Prosecuting
the Claim or Defending the Claim. Evidence can be laid only on those
facts which are Pleaded. Any Sort of Evidence is not Relevant under
Indian Evidence Act, 1872, which is not as per Pleaded Facts.
TYPES OF PLEADING –
There are TWO well recognized Forms of Pleading in a suit in India.
They are –
1. PLAINT –
Here, the Plaintiff gives his Cause of Action and other necessary
Particulars.
2. WRITTEN STATEMENT –
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It is the Defence Statement made by the Defendant. It is in
Response to every Material Fact alleged by the Plaintiff in the Plaint. He
also sets out New Facts, that speak in his favour.
OBJECT OF PLEADINGS –
The Whole Object of Pleading is to bring both the Parties on
Definite issues.
1. The Pleading give Fair Notice to the Other Party.
2. It Crystallises the Points on which the Dispute has arisen between
the Parties.
3. The Parties come to know the Matters in Dispute and Facts that
have to be Proved at Hearing.
GENERAL RULES OF PLEADING –
1. PLEADING SHOULD BE STATE FACTS AND NOT LAW –
It is the Duty of the Parties i.e. Plaintiff and Defendant to state only
the Facts on which they Rely upon for their Claims but not Law. It is for
the Court to apply the Law to the Facts Pleaded.
FOR EXAMPLE –
"SUSHANT Executed a Promissory Note in favour of AKASH on
dated 1st Jan, 2018"
Regarding this Statement, state only the Facts but not the
Provisions of Law of Contract or any other Law.
2. THE FACTS STATED MUST BE MATERIAL FACTS-
All the Primary Facts which must be Proved at the Hearing by Party
to establish (i.e. proved) the Existence of Cause of Action or Defence,
are Material Facts.
3. PLEADING SHOULD NOT STATE THE EVIDENCE –
FACTS
FACT-IN-ISSUE RELEVANT FACTS
Hence, the Pleading should state only Facts but not Evidence.
4. THE FACTS SHOULD BE STATED IN A CONCISE FORM –
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All Material Facts must be stated in Summary Form as briefly as
Possible as the nature of the Case requires. Immaterial Allegations and
Unnecessary Details must be Omitted and Material Allegations and
Necessary Details must be Included
5. THE FACTS SHOULD BE STATED IN PARAGRAPHS –
Every Pleading shall, when necessary be Divided into Paragraphs,
numbered consecutively and each Allegation being so far as is
Convenient contained in a Separate Paragraph.
6. DATES, SUMS & NUMBERS –
Dates, Sums and Numbers shall be expressed in a Pleading in
Figure as well as in Words.
7. PARTICULARS TO BE GIVEN WHEN NECESSARY –
Particulars when may be necessary shall be Stated in the Pleading.
8. DOCUMENT OR NOTICE WHENEVER NECESSARY TO BE
STATED-
Whenever the Contents of any Document or Notice 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.
9. PLEADING TO BE SIGNED –
Every Pleading shall be Signed by the Party and his Pleader/
Advocate (if any). If for Sufficient Reason, Party is not able to sign, a
duly Authorised Person may sigh on his behalf.
10. VERIFICATION OF PLEADING-
Every Pleading should be Verified at the Foot of the Pleading by
the Party or by any person Authorised.
Every Pleading shall be Verified by the Party by reference to the
Numbers and Paragraphs of the Pleading, what he Verified of his own
Knowledge and what he Verified upon Information received believed to
be true. The Verification shall also be Signed by the Person/Party making
it and shall State the Date on which and the Place on which it was
Signed.
CASE LAW – UDHAB KHAN v/s MADHAB RAO – (AIR 1976 SC 744)
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The Most Fundamental Rule is that Pleading is to be Read as
whole. It is not allowed to cut out a sentence or passage. The Intention
of the parties is to be gathered from the pleading taken as whole.
CASE LAW - J.K. IRON & STEEL CO. v/s IRON & STEEL CO. MAZDOOR
UNION - (AIR 1956 SC 231)
The Object of the Pleading is to Ascertain the Real Disputes
between the Parties, to narrow down the Area of Conflicts and to see
whether two Sides differ.
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Q. Write a Short note on, "Written Statement".
A INTRODUCTION -
O. VIII of CPC deals with the Provisions of Written Statement and
others.
Written Statement is also known as, "Defence Statement". Written
Statement is the Statement of the Defendant. By the said Statement, he
may Deny or Admit the Allegation of the Plaintiff ascribed in the Plaint.
Written Statement is a Statement submitted by the Defendant as a
Reply to every Material Allegations/ Facts by the Plaintiff in the Plaint,
raised against him by the Plaintiff.
The Defendant also Sets out all such New Facts as a Speak in his
favour with such Legal Objections as he Intends to take to the Plaintiff's
Claim.
Written Statement in short is nothing but an Answer given by the
Defendant to the Plaint of the Plaintiff.
A Written Statement is a Pleading of the Defendant must be in
Written and must be Filed by him Personally or a duly appointed agent
(Power of Attorney Holder). The Filing of WS by a Third Person on behalf
of Defendant is not allowed as per CPC.
ORDER 8, RULE 3 –
Written Statement, every Denial must be Specific. It is not
Sufficient for Defendant in his Written Statement to Deny Generally. If he
is not Denied Specifically the Allegation of the Plaintiff in the Plaint, shall
be taken to be Admitted to the Defendant.
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As per O.8, R.1, the Defendant shall, within THIRTY DAYS (30 Days)
from the date of Service of Summons on him, Present a Written
Statement of his Defence.
If the Defendant Fails to File the Written Statement within the said
period of 30 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 (90 Days) from the Date
of Service of Summons.
O.8, R. 1(A) -
Duty of the Defendant to Produce Documents upon which Relief his
Claim or Relied upon by him.
IMPORTANT LEGAL POINTS ABOUT WRITTEN STATEMENT –
1. The Written Statement should State all the Matters which show that
the Suit is not Maintainable.
2. The Written Statement should State the Grounds of Defence which
would Surprise the Opposite Party (i.e. Plaintiff).
3. If the Defendant has not Filed a Written Statement then the Court may
give Judgment on the basis of the Fact in Plaint.
4. If the Defendant Relies upon a Document in the Possession, he
should Produce it in the Court during Presentation of the Written
Statement and also Deliver the Copy of it to the Plaintiff.
5. Subsequent to the Written Statement of a Defendant, no Subsequent
Pleading can be Presented. But, the Court may Require an
Additional Written Statement from the Defendant and Fix Time
Limit for Presenting it, then only he has to present it.
6. As per O.8, R.9 – If the Defendant Fails to File his Written Statement
within the Prescribed Time limit Prescribed by the Court (i.e. as
per Law), the Court will Pronounces the Judgement against him
without his Defence (i.e. "NO WS" order).
7. Every Allegation of Fact in the Plaint if not Denied Specifically, shall
be taken to be Admitted .
8. If the Defendant has not filed a Written Statement then the Court
may give a Judgment on the basis of Fact in Plaint.
9. If the Defendant relies upon a Document in his Possession, he
should Produce it in Court during Presentation of Written
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Statement and also Deliver the Copy of it to be filed with the Written
Statement.
10. Subsequent to the Written Statement of a Defendant, no
Subsequent Pleading can be Presented.
CASE LAW - ROOPI BAI v/s MAHAVEER - AIR 1994 RAJ 133
When Defendant merely Pleads Ignorance about a Fact Pleaded
in a Plaint, it amounts to Admission unless by Necessary Implication it
amounts to Denial of Fact.
CASE LAW - VIDHYADHAR v/s MANIKIKRAO – (AIR 1999 SC 1441) -
Suit for Possession filed by Plaintiff on basis of Sale-Deed in his
favour. Possession of Property sought from one of the Defendants.
The said Defendant can raise all Pleas available to him Defeat Suit of
Plaintiff.
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