18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

Post Views: 6158

Additional Written Statement under

Order 8 Rule 9 of CPC
By aswathi vakkayil - December 27, 2018

Image Source - https://bit.ly/2lKMZPh

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

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 1/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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
https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 2/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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
https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 3/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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.

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 4/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

Click Here

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

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 5/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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 led?
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
https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 6/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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 su cient 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

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 7/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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
https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 8/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 9/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 10/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

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.

Did you nd this blog post helpful? Subscribe so that you never miss another
post! Just complete this form…

Name

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 11/12
18/10/2019 Additional Written Statement under Order 8 Rule 9 of CPC - iPleaders

Email Address

10-6=?

SUBSCRIBE!

https://blog.ipleaders.in/additional-written-statement-order-8-rule-9-cpc/ 12/12