Written Statement. - Bombay High Court

Written
State~ent.
ORDER VIII
l[ WRITTEN STA'rEMENT, SEN;FF AND COUNTER-CLAIM]
:J[l.The defendant shall,
within thirty days &om the date
of service of s~mons on him,
.pr~sent a written statement of
his' defence:
. Provided that where the
defendant fai!s to file'. the
written statement within the
said period of thirty days, he
shall be allowed to file the same
on such other day, a.s may be
specified' by the -Court, foI;
reasons to be recorded in
writing, but which shall not be
later than ninety days from the
date of service of summons,}
;.
2[Written Statement, Set-off,
Counter-claim and,Third Party
Procedure,~ .
Written 4[(1)The defendant'may,and,
Statement.if so required by .the. Court,
shall, within such time as may
be specified in that behalf or
within such~xtended time as
the Court may pennit, present
. a writteQ statement of nis
defence, after serving a copy
thereof on the plaintiff or his
pleader on or' before the date
fixed for presenting the same
. in Court, or file in Court for
the use of the plaintiff a copy of
the written statement while
presenting the same in Court :
Provided. that the first
adjournment for filing the
written statement shall not
. 1Substituted by Act 104 of 1976.. s. 58(i).
2 Substituted by Bombay High Court Notification, No. 'P, 0102177, dated 5th September
1983, Amendment(l) , . .
- 3 Substituted' by Act 22 of 2002, S. 9 (i).
4 Substituted by Bombay High' Court Notification, No. P. 0102/77, dated 5th' September
1983" Amendment (2). inserted by Act 104 of 1976, S. .58' (ii) (6).
.,
.]

'J.
l
1908 : Act V] Code of Civil Procedure, 1908 147
(The First Schedule. Order VIII-Written statement, set-off and
Counter-claim. )
1[IA. (l)Where the Duty of
defendant bases
upon a document
his defence
. .
or relIes upon
defendant
to produce
documents
any document in his possession upon'
or power, in support of h'is wh.ich.
. . rehef IS
defence or claIm for set-off j)r claimedor
counter-claim, he shall enter relied upon
such document in a list, and by hijI1.
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, stat!;! 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 crossexamination
of the plaintiff's
witnesses, or '
(b) handed over to a
'witness merely to refresh his
memory.]
1Inserted by Act 46 of 1999, s. 18(ii).
2 Substituted by Act 22 of 2002, s. 9(ii).
H 4010-21a
ordinarily exceed four weeks
and no furtner adjournment
.shall be granted except for
reasons to be recorded in
writing.]
. (2) Where the defendant
bases his defence or claim for
set-off or counter-claim upon a
document in his possession or
power, he shall produce it in
Court along with his written
statement and shall at the same
time deliver the document or a
copy thereof to be filed with the
written statement.
(3) Where he realise on any
other document (either in his
possession or power or not) as
evidence in support of his
defence or claim for ~et-off or
counter-claim, he shall enter
such documents in a list to be
added or annexed to the written
. statement.
(4) Where any such
document is not in po~session
or power of the defenda~t, he
shall, if possible, state in whose
possession or power it is. .
(5) A document which is
required to be produced in Court
by the defendant with his
written statement 9r to be
entered in the list to be added
or annexed to the written
statement., and .'1Vhichis not
proguced or entered. accordingly,
shall not, without the leave of

"
New facts
must be
specially
pleaded,
Denial to
be specific.
Evasive
denial.
Specific
denial.
148 Code of Civil. Procedure, 1908 [1908': Act V
(The First Schedule. Order VIII-Written statement, set-off and Counter
" . claim.)
the Court, be received in
eviqence on his behalf at the
hearing of the suit.
(6) Nothing in the foregoing
sub-rule of this rule applies .to
documents produced for cross- .
examination of the plaintiff or
other defendants or their
witnesses or handed over to a
witness ll1erely to refresh his
memoFY.l~
[See sub.-section (1) of section
97 of Central Act 104 of 1976
reproduced on p. V ante.]
2., The defendant must raise by his pleading all matters which show the
suit not to be maintainable, or that the transaction is either void or voidable
in point of law, and all suth 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. It shall not be sufficient for a defendant in his written statement to
deny generally the grounds alleged by the plaintiff, but the defendant lImst
deal specifically with each allegation of fact of which he does not admit the
truth, except damages.
4. Where a defendant d~nies 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 circumstance,s, it shall not be sufficient
to deny it along with those circumstances.
5. 1[(1)]Every allegation offact in.the plaint, ifp.ot 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 its discretion require any fact so admitted
to be proved otherwise than by such admission.
2[(2)Where the defendant has not filed a ple~ding, it shall be lawful for the
Court to pronounce judgment on the basis of the facts contained in the
I Rule 5 renumbered as sub-rule (n of that rule by Act 104 ofJ976. s, 58(iii).
2 Inserted by Act 104 of 1976, s, 58(iii). '

I t,
, .
1908 : Act V] Code of Civil Procedure, 1908 149
(The First Schedule. Order VIII-Written statement and set-off)
pl~int, except as against a person under a disability,_but the Court may, in
its discretion, require any such fact to be prc)ved.
(3) In exercising its di'scretion under the proviso to sub-rule (1) or under
sup-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.] ,
6. (1) Where in a suit for the recovery of money the defendant claims. to Particulars
set-off against the plaintiffs demand any ascertained sum of money legally of set-o,ff
recoverable by him from the plaintiff, not exceeding the pecuniary limits of ~ be ,t IPven . .mwnen t
the jurisdiction of the Court, and both parties fill the same character a,stheYstatement,
fill in the plaintiffs suit, the defendant may at the first hearing of~hesuit
but not,aftervvards unless permitted by the Court, present a written statement
containing the particulars oLthe debt sought to be set-off.
(2) The written statement shall have the same effect as a plaint in a cross- Effect of
suit so as to enable the Court to pronounce a final judgment in respect both set-off.
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 effects. C pays
Rs. 1,000 as surety for D; then D sues C for the legacy. C cannot set-off
the debt ofRs. 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 the Rs. 1,000.
(b) A dies intestaw 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 purchasemoney
by C against B, the latter cannot, set-off the debt against the price,
.for a fills two different characters, one as the vendor to B, 'in which he
sues B, and the other liS representative to A. .
(c) A sues B 011a bill of exchange. B alleges that f...has wrongfully
"neglected to insure B's goods and is liable t~ him in.co~pensation which
he claims to set-off. The amount not being ascertained cannot be set-off.
'(d) A sues. B on a bill "Ofexchange 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.

150 Code of Civil Procedure, 1908'
. "
"f ..
[1008 : Act V
'The first S~hedu.le. Order VH.l~Written statement and set~oj'f)
(e)A ~~ ltfor,oompensationon account of trespass. B holds a pronrissoIY
note for~. 1,000 fron1 A and elaims to set-off,tAat amount against any
,sum that A may'reOOver in, the suit. B,ma~, do so, for, as soon as A
recovers, bOth sums are definitepecuriiary ~mands. '
'-if) A arid Ii su~ C Its. 1,000. C cannot set~~ffa.debt due to hi~ 1>YA
aione. ' " " ,
(g) A~ues B and C for ,Rs. 1,000. B cannot set-off Ii debt due to him
alone by A. '
, (h)A owes the partn,ership firm ofB ,and C Its, 1,000. ~,dies, leaving
C surviving;A sues 'C for a debt of Rs. 1,f)00dpe,in his separate character. '
C may set-off the debt of Rs..1;'O00. ' , ' ,
Co.unter- 1[6A. (1) A defendant in a suit may, in addition to his right of pleading
claim by
defendant. a set-off uriderrule 6, setup, by way of counter-claim against the claim of
the plaintiff, any right or claim iRrespect of a caitse of action accruiIl'g to the'
,
defendant against the plaintiff either before or after the filing ofthesuit but
, before the defendant has delivered his 'defence.or b~fore the time limited fot
delivering his defence has expired, whethersuch counter-claim is in the
nature of-a claim, for damages..or not: ," ' , .
, ~vided\hat such counter-~laim shall. no17~xceed the, pecuniary liririts of
, the jurisdiction of theCoWt. '
. '
(,2)Such counter-claim shall have the same effect as a cross-suit so as ,to
enable the Court to pronO1,~ncea final judgment in tbe 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~claip1 of the defendant withinsuchp~riod as maybe fiXedby
theCourt. , ' ' . ' ,
(4) The counter-claim 'shall be treated as plaint and .governed by the roles '.
applicableto plaints. ~' ,° " .
, , ' ,
claim
~¥nterto
be
68. Where any defendant; seeks to rely' upon any ground as !!upporting
sa t te d. a right of counter-claim, he shall, in his written statement, state specifically .
, .. that he does so'.by way of counter-claim. , ,
Exclusion - GC.. Where a defendant sets up a coUnter-claimand the plaintiff contends
of co~~:i~:'that the claim thereby raised ought not to be disposed ,ofby way of-counterclaim
but in an independent suit, the plaintiff may, at any time before issues,
are settled in relation to the counter-claim, apply to the Court for an order'
that 'such counter-claitn may be,excluded, and the Court may, on the hearing
of such application make such order at'it thinks ,fit.
, E~ect ~f 6D. If in any case in which the'defendant'sets up a counter-claim, the
-n~:o;~f suit of the plaintiff is stayed, d~scontinued or'dismiss~d, the, counter-claim
suit. may nevertheless be proceeded with. /
'Inserted by ,Act 104 of 1976. s. 58(iiv)"

I' "
l
,.
1908 : Act V] COde of Civil Procedure. 1908
" ,
151
(The First Schedule. Order VIII-,Written . statement and set-off>
'
6Ee If the plaintiff makes default in putting in a reply to the counter- Defaultof
claim made by the defendant,' the Court may pronowice judgment against plaintiffto
the pl~intiff i~,relation to the coun~r-clai~ ma~e against him, or make su~h :~~:order'ln
relation to the counter-claun &SIt thinks fit. ' claim.
6F. Wherein any sui~ a set-off or counter-claim is established as a Reliefto
defence against t;Qeplaintift'sclaim, and any balance is fouJ\d due to the
plaintiff or the defendant, as the' case may be, the Court may give jpdgment , "
to the' party entitled to such balance.
defe~daot
e
wher couner- t
claim
succe.ects.
&G.
, , ' .
The rules relating teawritten statement by a defendant shall apply Rules
to' a written statement filed in answer to a counter-claim.]
, .
relaiingto
written '
statement
to apply. .
7. . Where the defendent relies upon several djstinct grounds of defence Defence or
or set-off, l[or counter-claim] founded upon separate and distil'1ct facts, they :et-of~
shall be s~ted as far as may'be,separately and distinctly. . .' ,.uo;:d ,
, separate
grounds.
8., Any ground of defence which has arisen after the institution of the New
suit or the' presentation of a written s~tement claiming a set-off 2[orcounter-, ground of
'claim] may be raised by the defendant ,orplaintiff. as the cas~may be, in his , defence.
written statement" " .:
sA. .1:>utyofdefendant' to produce documen(;s upon which relief is claimed
, by hiQl (omitted by Act 46 of 1999, s. 18 (iii).
3[9. 'No pleading subsequent Subsequent "
to ,the written statemEmt of a pleadings.
d~fen~antother than by way of
defence to set-offor counter-claiin
spall be presented except by tha
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.~ '
4[9. No pleading sUbsequent Subsequent
'to the written statement of the pleadings..
defendant other than by way of
defence to a set-off or counterclaim
shall be presented except
by the leave of the' Coprt and
upon such terms as the Court
thinks fit. but the Court may at
any time require' awirtten
statement or additional written
statement from ~ny' of the.
parties and fix ,a time 'for
presenting the smne.] ,
, '{See suJ>:.seCtion'Wof section
97 of.Central Act' 104, of 197,6
reprOd~cedon p. ,V. ante.]
1 Inserted
2 Inserted
by Act 104 Of 1976, 5, 58 (v),'
ibid" S. 58 (iv).' ,
3 Substituted by Act 22 of 2002, 5. 9(iii).' '. . '
. Substituted by Bombay High Court Notification" No, P. 6324/60, dated 30 September
1966, cl. 28. '

Procedure
when party
fails to
present
written
statement
called for
by Court.
152 Code of Civil Procedure, 1908 [1908 : Act V
(The First Schedule. ,order .VIII :.Written statement and set-off>
1[10. wqere any party from whom a written statement is required und~r .
rule 1 or rUle 9'fails to present the same within the tim.e permitted or fixed
by the Court, as the case may be, the Court shall pronounce judgII)ent
against"him,or make such order in relation to the suit as it thinks fit and
on the I>~onouncement of such judgment a decree. shall be drawn up.] .
:'
.,
Parties to . 2[11. (1) ..(a) Every party
file
addresses. whether original, adged or substituted,
who appears in any suit
or other proceedin9' shall file
in the' Court on or before the
date fixed in the summons or
notice seIYed on him as the date
for his appearance or within
such further time as may be
allowed by the Court a
memorandum in writing stating
the address at which he may be
served.
Registered (b) This address shall be
address. called the "registered &ddress"
and it shall, subject to rule 24
of Order VII read. with rule 12
of this Order' hold good in all
. proceedings in the suit and in
appeals and also for a further
period of six years £romthe date
of the final decision for all
Consequences
of default in
filing
. registered
address.
.purposes including those of
~xecution.
(c) ~f,after being required to
file. the registered address
within a specifiedtime, he fails
to do so, he shall be liable to
have his de(ences, if any, struck
out and to be placed in the same
p'osit'ion as if he had not
defended. In this respect the
Court may act suo motu or on
. the application of any party for
an order to such effect, and the
Court. may make such order as
it thinks fit.
1 Substituted by Act 22 of 2002, s. g. (iii).
'Inserted by Bombay High Court Notification No. P. 6324/60, dated 30 September1966
cI.29.' ....
.'

(
"
t
I,' .
f
1908 : Act V] Code of Civil Procedure, 1908 153
, (The First Schedule. Order VIII-Written stf!-tement and set-off>
,
~.' H 4oi0-22
. '
. .
. .
(2) Where the Court has When'
struck out the defences under default
sub-rule (1) and has adjourned m~ bed
the hearing of the suit or the con one.
proceeding and where the
defeq.dant ot the opposite party
at or before such hearing.
appears and assi~s sufficient
cause for his failure to tile, the
registered address and also files
the register~ address, he !Jiay,
upon such terms as the Court
directs as to costs or otherwise, .
be heard in ~i1swerto the suit
or the proceeding as if the
defences had not been struck
out.
(3) Where the Court has When
struck out the defences under decree -
sub-rule (1)' and
.
has
default
passed on
can
consequently passed a decree or be set .
order, the defendant or the aside.
opposite party, as the case may
, be; may apply to the Court by
which the decree ot order was
passed for an order to set aside.
the decree or order, and, if he
files. a registered address and
satisfies tlie Court that he was
prevented by any sufficient
cause from filing the address,'
the Court ,shall make an order
setting' aside the decree or
order as against him upon such
terms as to cpsts or Jotherwise .
as it thinks' ~t and shall appoint
a date for prqceeding with the
s~it, orproceediliK :::
Provided that where the
: decree or order is of such' a
nature that it c~.dt be set
aside as against such defendant
or opposite party only; it may
be set aside as against all or
; "
.'

154
(The First Schftdule. Order V~lI-Written statement' and set-off.)
.
, .
Code of Civil Procedure, !9Q8
Applicability
of IT. 20
and 22 to 26
of O. VII.
[1908 : Act V
. any of the other defendants or .
opposite parties.
12. Rules 20, 22, 23, 24, 25
and 26 of Order VII shall apply,
so far asthey may be applicable,
to registered, addresses filed
under the last preceding rule.
CO11.ter-claim ' , '
. Defendant 13. A defendant in' a suit,
may
counterset
up 'in addition to his right of
I d .
- claim'p ea mg a set.o ff un der Order
against the .VIII, rule 6 of the Co~e of Civil
claimsof Procedure, 1908, may set up by
t~8,pla~~ff m addition way of counter.claim against th~
to set-off. claims ofthe plaintiff any right
, or claim in respect of a cause of
action accruing to the defendant
either before or after the filing
of the suit, but before the
defendant has delivered his
..defence and before the time
li~ited for delivering his
defence has expired, whether
S\1ch counter-ch=iim sounds in
damages or not, and such
counter-claim shall have the
same effect as a cross-suit sOas
to enable the Court to
pronounce a final judgment in
the same suit both on the
original and' on the countercliam,
and the plaintiff,. (if so
advised} shall be at liberty to
file a written statement in
answer to the counter-claim of
the defendant within, four weekS
after sernce upon him or his
pleader of a copy of tl?-edef~ndant's
counter claim; and the
Court or a Judge may, on the
application of the plaintiff before
trial, if in the opinion of the
Court or Judge such counter- ,
claim cannot'be disposed ,of in
q

..
1908 : Act V] Code of Civil Proc~dure, 1908 ' 155
~
H 4010--22a
(The First SChedule, Order VIII-Written statement and set-off.)
the pending suit or ought not
to be allowed, refuse,.
permission to the defendant to
'avail himself thereof, and
require him to file a separate
suit in respect th~reof,
14. Where any defendant
seeks to rely upon any grounds
as supporting a right of counterclaim,
he shall in his written
statement state specifically that
he does so by way of counterclaim,
'
Defendant
setting up
a counterclaim
to
specifically
state so in
the written
statement,
15. Where a defendant by a Where the
written statement sets up'any coun,tercounter-claim,
which, raises ~laim
Invo lyes
'
In
questions between himself and addition to
, the plaintiff along with, any the plaintiff
other persons, he shall add to other
h '
t '
,
' '
1 f h persons
t e It e 0 IS wn t ten also, the
s~atement a further title similar defendant
to the title in a plaint, setting
further
to add
title
forth the names of a11 the to the title'
. persons who, if such. counter-of the
claim 'were to be enforced by a written
teme cross-suit,. would be defendants sta ?t
and delver l
to such cross-suit, and shall
deliver copies of his written
copiesof
his written
statement to such of them as statement
'
' to such
1
are a rea
d
y partIes to t
h
e ~Olt persons as
within the period within which are already
he
th
is reciuired ,
pi t
to deliver it to parties to
'
,e amI, ff
the suit,
'
'
16. Where any such person Service of
as is mentioned in the last summons
preceding rule, is not already a when
'
counter-
h h h 11
party to t e SOlt, e s a
b
e claim is
summoned to appelilr by being
se",ed with a copy of the written
statement and' such, service
against
persons
who are
shall be re~latedby the San1e not ~lready
rules as are contained in the paI1les,to
Code of Civil Procedure, 1908, the SUIt,
with respect to the service of a
writ of summonS, .

.<
"
156 \Code of Civil frocedy[e, 1~98 [:\BOS: Ac.t Y
, ,
, ,
(TfJe,First Sched:ule. Order VlIl-:-T}{ritten ~taiement and set-off)
c
-.
Appearanceof, 17. Any person not a defen~,
persons other dantto the suit, who is'serv~d
than f'" " ' "', '
defendantsto With, a written statement and
the suit, wh~n counterclaim as.aforesaid, must
, .servedwith appear therein'asifhe had been
counter-claim,',,',,'
, served WIth a wnt of summons
Reply to
counter-
, claim.
Objection to
counter-claim
being allowed,
to be set up
in the suit,
to appear in the suit.
. 18. Any' person named in a
written sta~ment as a party to
'a counter:cIl,\iin' thereby made,
may deliver a reply within'the
time, within whJch he might
deliv~r a written'statement if it
were a plaint.
19. Where a defendant sets
up a counter~claim, if the'
plaintiff or any other person
named in the manner aforesaid
as party to sJ.1chcounter-claim
contend~ that the claim thereby
raised oUght not to be disposed
, of by way, of counterclai1n. but
in an independent suit, he may,
at any time before reply, .apply
to the Court or a Judge'for an
order that such counterclaim
may be excluded' and the Court
or Judge may, on the hearing
of such applicatinn, make such
order as, shall be just.
Counter- 20. If in any case in which
claim may, ' J:'.
be th e d d
,', elen ,ant sets up a counter-
.prQceede~ claim the suit of the plaintiff is
,
wIth, even If . .
'
suit !;Ie staye, d d Isconbnue d or
d ' st t ,ayed' dismissed
Iscon Inue
the counter-cl~im
d ,
or dismissed, may nevertheless be'proceeded
On default
of reply to
counterclaim,
the
counterclaim
may
be set down.
for
judgment.
, with.
21. If the defendant to the
counte~-claim makes default in
putting in reply to the counter-
claim, the defendant in the suit,
who is the plaintfff to the
countel'- claim, may, in such
. .

~'
,,::--,
~
~
..
1908,: ActeV:J .Code of ,Civil Procedure, '1908 '157 '
, '
(rheFirst Schedule. Otder VIII-Written'statement: and set-off.)
'
""
,~
cases, get the suit set down for,
judgment on the counter-claim,
,0
.
~
,
and such judgment shall be
given as the Court shall consider
him to be entitled to,'
, '
,P
. ",-
, ','
22; Where.in ' any suit a set-, Judgment
" ' ' , when setff
t I
0' ',or' co un er.c aIm, IS oft' or
established as a defence against counter-,
the 'plaintiffs ,claim, the Court claim~, '
or a Judge may, if the balance estabbshed.
,is in favour of the defendant;
give Jwlgment [or the defendant
for such balance; or may.
,',- I
otherwise adjudge to the
defendant such relief as he may
he entitled upon the merits of
the case, "
y'
'"
. -
"
I
, .
"
l[Third Party P!'ocedure
23. Where ina suit a
defendant claims against any
per~n not already a party to Third Party
the suit (hereinafter called the Notice.
Third Party~' "
(a) that he is entitled to
contribution' or indemnity, or
(b) that he, is entitled to any
, relief or remedy, relating to Qr
connected with the subject
matter of' the" suit .and
substantially the same as sQme
relief ot remedy elaimed by the
plaintiff, or
(c) that, any question or issue
relating to or connec;tedwith the
subject matter of the ,suit is
substantially the same as some
questio~or' Iis~u~ arising'
b~tween., the plaintiff and the
defendant~nd should properly
be, determirie

158
Cooeor Civil Procedure, 1908
[1908': Act V
.(The First Schedule. Order VIII...J.Written statement and set:off.)
defendant but as between the
plaintiff and the defendant'and
the Third Party or between Ilny
. or either of them,
.
h~ niayapply to the C()urtfor
leave. to issue a notice
. (hereinafter called the 'Third
Parly Notice') to that effect.
.
The. applic!\tion shall be made
by affidavit, stating the nature
.
of the claim made. by the
defendant and the facts on
which proposed Third Party
Notice is based and may .be
made ex parte. The application
shall be made within tour weeks
from the 'service of the
summqns upon defendant.
Form and 24. (1) The Third Party
Service.of
Notice.
Notice shall state the nature of
.
0 O
th e cI ann made by the pIamti ff
against the defendant and the
nature' and grounds ofthedaim
made by the defendant against
the Third Party or the nature
and extent of any relief or
. remedydaimed by him against
the Third Party or the nature
of the question or issue sought
to be determined and' shall be
sealed with the seal of the
Court. It shall be served o~ the'
Third Party, according to the
rules relating to the service of
summons and shall, unless,
otherwise ordered, be served
withiD.two weeks from the date
.of the order granting leave to
issue the Third Party Notice. A
,'copy of thf'Jplaint and a copy of
the affidavit of the defendant in
support of the Third Party
, Notice shall be setvedon ,the
Third Party along with the
'Pl1ird Party Notice.

, .
"
~
,"
1908;: ACt VI
(The First Bchedule. Order VlII~Wi'itten,statement and set-off)
,~,
"
,>
Code 'of CitlilProced~re, 1908 159
,,'
"
,;
(2) A copy of the Third Party
Notice and of the affidavit ofthe
defendant in support of the
. Third Party Notice shall be,
furnished to all parties to the
suit within two weeks from the
date of the order grantirlg leave
to issue the Third Party Notice.
25. Tlie Third party shail, Effectof
as from the time ,ofthe service Service of
: '
h '
f th N
.,'
be
Notice.
upon 1m 0 e, otlce, , ' a
party to the sUit with the sante
right in respect of his de'fence
against any claim made against
him and otherwise as if he had
been duly sued in the ordinary
way by the defendant.
26. If the Third Party Third Party
desires to dispute the plaintiffs to enter
claim in the suit as against the Apperance or Vakalat.
defendant on whose behalf the nama.
Notice has been issued or his
own liability to the defendant,
the Third Party sRall enter an
appearance in person ora
Vakalatnama in the suit within
, two weeks from the service of
the Notice: .
Provided that, a person so
served and failing to appear
within the said periOd of-two
weeks may apply to the Court
for leave, to appear and such
leave may be given on such
terms, if any, asth~ Court may
think fit.'
27. If the Third Party does
not enter an appearance in
person or a' Vakalatnama he
shall be deemed to admit the
Consequence
of Failure
to enter'
Apperance
or Vakalat-
claim sta~jn the Third Party nama.
Notice and shall be :bound by
any judgment or'deCision in the
suit, whether by consent. or
otherwise, in so far, as it is

.,c
160
,j
\.
(The First Schedule, ,Order VIII-Written ,statement and set-off.)
,;
,; ,;
'0
00
,0
.
.','
, "
Code of Civil P~ocedure, 1908 , [1908

".
~908.:Act,V] Code ofCiuil J>mcedure, 1908 161
lt4010-23
(The First Schedule. Qrder VIIi--:Written statement and set-off)
.'
suit appeares on board, for
directiorts before the Co~rt it
may,-
(a~order any claim, question
or issue stated in the Third
Party Notice to be tried in such
manner, before, at or after the
trial' of the suit, as the Court .
may think fit and may, in that
event give the Third Party leave
to defend the suit either along
or jointly with any defendant,'
upon such, terms as he may
.think just, or to appe~r at the
trial and take such part therein
as he may think just and
generally may make such orders
and give such directions as may
appear proper for having the.
questions and the rights and
liabilites of t~e parties' most
conveniently determined and
enforced and as to the extent
to which the Third Party shall
. be bound or made liable by any
decree in the suit, or
rb) dismiss the Third Party
Notice. '
(2) Any order made or
direction given und~r 'this rule'
may be varied or rescinded by
the Court at any time
the disposal of the suit.
before
31. Where for any reason it Defendant
is. not possIblefor the Court to ~ ap~ly for
d ' , ':" h Th '
d directIons
gIve lrectlOns on.. e lr, . .
mcealn rt
Party Notice at the time when cases.
the suit appears on the Board
fordirectiQns, thedefe'ndant
issuing the 'Third Party Notice
shall,.' within two weeks, after
the filing ofthe!lmEJ,avit in reply
by the Third Party, apply for
directions. Upon the hearing of

°162
CQde Qf t~vil Procedure, '1908 [1908 : Act V
(The First Schedule, Order VIII-Written statement and set-off>
,
.
"
;
such applications, the' Court may
pass such orders and give such
direCtio~ as are mentioned in
the last preceding rule:
Costs. "~2. ~TheCourt may decide all
, "questions of costs as between a
Third Party aIid the other parties
to the suit, and may order any,'
one or mOre to pay the.costs of
any other, or others or give such
dirctions to -costs as the justice,
Setting
aside third
Party proc-
of tJie case may require.
_33. Proceeding on °a Third
Party Notice may, at any stage
of the proceeding, be set aside
by the Court. " -
Rights of 3~.(1) Where the Third
the third Party makes against any person
, partyand not already a party to the suit
of e~ch (to be called 'the second third
succesSive
t ' .
' ,
) h I
third party par ~ su.c a c aIm as IS,
to apply for, mentIoned In rule 23,he may by
third party leave ofthe Court issue a Third
notice Party Notice to that effect, ,
against.
(2) Wh
.
th d 'Th '
eedings. .
,
. ~
other ,ere. e'secon Ir d.
persons.°,Party' in his turn makes such a
, claim as is mentioned:in rule
23 ,against any persons not
" already a party to the suit (to
be called 'the Third Party') or
where each' succ.essive Third
Party in his turn makes such a
claim against any person not
, already a party to the suit, such'
'sec(!nd 'Third Party' or' any
succe~sive third party may, by
leave ofthe court issue a Third
Party Notice to that 'eff~ct,
- (3) The provisions contained
in the preceding rules as to
Third Patty Procedure shall,
with' any necessary
modifications, apply to all cases
where, Third ¥arty Notices have
been issued, whether at the
instance of the Third Party or
any successive Thir

t
~
~
I'<
.~
~'"
~.
1908 : Act V] Code of Civil Procedure; 1908 163
H 4010-23a
(The First Schedule. Order VIII-Written statement and set-9ft)
35. (1) Where a defendant Right of
defendant
makes against a co-defendant to issue
, such a claim as is mentioned in
third party
. rule 23 he may, without leave notice
of the court, issue and serve on
such co-defendant within six
week's from the service of the
against co-.'
defendant.
.
summons upon him (the
defendant making the claim) a .
notice stating the nature and
grounds of such claim and shall
at the same time file an affidavit
in support of such claim and
furnish copies thereof to all
parties in the suit.
(2) The proVisions contained
in the preceding rules regarding
Third Party procedure shall,
with necessary modifications,
apply to cases where a
defendant'has issued such notice
against a co-defendap.t, but
nothing herein contained shall
prejudice the rights of the
plaintiff against any defendant.
in the suit.
36. Where in any suit a Third Party
counter-claim is made by a proceedings
defendant, 'the provisions 'coun in a t ercontained
in the preceding rules claim.
regarding Third Party
procedure shall, with any
necessary modifications, apply
in relation to the counter-claim
as if the subject-matter of the
countercclaim were the subject-.
matter of the suit, and as if the
person making ,the counterclaim
were the plaintiff and the
person against whom it is made
a aefendant.]
[See sub-section (1) of section
97 of Central Act 104 of 1976
reproduced on p. V ante.]