Powers under Order VIII Rule 9 CPC to be exercised by the courts only in cases of set off/counter claim

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., partly allowed a writ petition filed against an order passed by the trial court whereby petitioner’s application under Order VIII Rule 9 CPC had been rejected by the trial court.

The main issue that arose before the Court was whether the Court can accept a written statement filed beyond the statutory period in the form of additional pleadings under Order VIII Rule 9 of Civil Procedure Code, 1908. Another ancillary issue, in this case, was whether a reply filed by the defendant against an injunction application can be treated as a written statement.

The Court observed that the provision of filing additional documents under Order VIII Rule 9 is confined to cases where the defendant has asked for a counter claim or a set off. Powers of the Court to file a written statement cannot be exercised to permit a party to file his written statement which he has failed to file within the statutory period as provided under O. VIII R-1 of CPC and, resultantly, debarred from filing the written statement. The Court however observed that as per the judgment passed by the Bombay High Court in Kuldeep Umraosingh Ostwal v. Chandrakant N. Patel, 2010 SCC OnLine Bom 193, it is a settled principle of law that even if a defendant has failed to file his written statement, stand taken by him in opposition to the application for injunction shall be treated as his written statement of defence in the suit.

The High Court held that the trial judge was correct in rejecting the application of the petitioner under O. VIII R-9 of CPC but the trial judge ought to have treated the reply of petitioner to the injunction application as his written statement of defence. Accordingly, the Court partly allowed the writ petition. [Gouri Shankar Mahato v. Chepia Mahatain, 2018 SCC OnLine Jhar 1262, order dated 26-09-2018]

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