VALID DEFENCE
- When a plaint is served on the person against whom a suit is instituted, he is expected to defend the proceeding by filing his written statement. Written statement shall be filed within thirty days from the date of service of summons as per Order VIII Rule 1 and the proviso will read that defendant can be allowed to file the written statement till 90 days at the discretion of the Court. Rule 1-A of Order VIII mandates production of documents relied on by the defendant in the written statement and only with leave of Court any document can be produced, if not filed with written statement.
- Under Rule 2 to Order VIII, new facts had to be specifically pleaded and under Rule 3 denial has to be more specific. Probably, the law makers had introduced complete defence or affirmative defence as in the United States. Normally affirmative defence are failure to disclose cause of action, not filing proceedings within limitation, lack of stature to maintain the suit and the bar under law including res judicata/ estoppel or bar under Order IX Rule 7 C.P.C. Rule 4 requires parties to answer the point of substance and the defence shall not be evasive and it is repeatedly held evasive denial is no denial. Rule 4 and 5 should be read together as 5 will state that the denial shall be specific and non denial/evasive denial amounts to admission.
Order 8 Rule 5 – Specific denial
(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 its discretion require any fact so admitted to be proved otherwise than by such admission.
(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.
“9. The scheme of this Rule is largely dependent upon the filing or non-filing of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that any fact stated 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 treated as admitted. Under Rule 3 of Order 8, it is provided that the denial by the defendant in his Written Statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and, therefore, the denial, if it is not definite, positive and unambiguous, the allegations of facts made in the plaint shall be treated as admitted under this Rule.
Balraj Taneja and Ors. vs. Sunil Madan and Ors. (08.09.1999 – SC) : 1999 INSC 385
15.2. The requirement of Order VIII Rules 3 and 5 Code of Civil Procedure are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the Respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.
Thangam and Ors. vs. Navamani Ammal (04.03.2024 – SC) : 2024 INSC 164
The necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy.
Ramesh Chand Ardawatiya vs. Anil Panjwani (05.05.2003 – SC) : 2003 INSC 276
- In India, major portion of Civil Suit is for Permanent/Perpetual Injunction. Normally on seeing a plaint, whether we know Section 41 of Specific Relief Act or not, it will be incumbent on a lawyer to immediately look at the said provision and prepare his defence. A valid defence to such a suit is to plead the one that comes under Section 41. Civil Procedure Code provides for model of written statement in Appendix A, Written statement No.1 to 15 over and above the general defences. Section 9 of the Specific Relief Act will state that all the defence available in relation to contract can be raised.
- In a suit for Permanent injunction in relation to property, the usual defence taken is that the suit is not maintainable for not seeking the prayer to declare title, as title is denied.
“103. Applying the principles laid down in Dhulabai (supra) and Firm Seth Radha Krishnan(supra) to the facts of the present case, there can be no difficulty in holding that a suit of this nature would be maintainable before the civil Court particularly considering the nature of relief prayed in the suit. ii) Plaintiff’s title is not under a cloud - The next issue is whether a civil suit for permanent injunction can be filed without declaration. On this, it is settled that where the Plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. The relevant tests were laid down in Anathula Sudhakar v. P. Buchi Reddy MANU/SC/7376/2008 : (2008) 4 SCC 594:
13.1. Where a Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the Plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the Plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the Defendant asserts title thereto and there is also a threat of dispossession from the Defendant, the Plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the Plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the Plaintiff will have to file a suit for declaration, possession and injunction. - At the cost of repetition, it must be noted that in the written statement in the suit, the Defendant No. 1 admitted that the Plaintiff together with the Defendant Nos. 2 to 4 purchased total 3 bighas of land through two sale deeds respectively dated 2.3.1970 and 16.3.1970 and it was also admitted that the Plaintiff submitted an application before District Magistrate to convert one bigha land to non-agricultural category on which the District Magistrate issued NOC since the said land was needed to set up a petrol pump. Here, the title for the Plaintiff is not disputed by the Defendants and the same is not under a cloud. Therefore, the question of title is not an issue in the suit. Moreover, the mandatory requirements under the provisions of the 1959 Act were itself not followed before issuing notification, without which the title cannot be said to be disputed. Such a suit for injunction in the absence of contest to the title would therefore, be maintainable.”
Urban Improvement Trust, Bikaner vs. Gordhan Dass (D) through L.Rs. and Ors. (19.10.2023 – SC) : 2023 INSC 935
11.1. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
Padhiyar Prahladji Chenaji (Deceased) through L.Rs. vs. Maniben Jagmalbhai (Deceased) through L.Rs. and Ors. (03.03.2022 – SC) : 2022 INSC 258
“11. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar (supra) in paragraph 21, which read thus: - To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the Plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the Plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the Plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, MANU/SC/0416/2005 : (2005) 6 SCC 202]). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal Rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. - It could thus be seen that this Court in unequivocal terms has held that where the Plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
- No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal Rule that question of title will not be decided in suits for injunction.”
Kayalulla Parambath Moidu Haji vs. Namboodiyil Vinodan
(07.09.2021 – SC) :2021 INSC 453 - The next major civil suit being filed is one for partition. The normal defence taken shall be exclusion or ouster or that the property is not available for partition when the cause arose. We normally see that exclusion or ouster has to be specifically pleaded and due to lack of pleadings and evidence, the suit for partition is decreed if the plaintiff could prove existence of joint family or ancestral property nucleus. Under Section 3 of the Partition Act defendant can also undertake to purchase the shares of the other co-sharer or sharers.
- The 3rd most filed suit is suit for specific performance. The best defence is non compliance of Section 16© of the Specific Relief Act and the conduct does not show readiness and willingness, over and above the general defence based on facts of each case.
- In our country, we see that there is a large number of petitions filed seeking rejection of plaint. This is due to fact that requirements of Order IV and Order VII are not complied with properly and also due to the fact that many lawyers feel that the defence raised is a ground to reject the suit. The Courts often hold that the plaint and documents alone has to be looked into for the purpose of the rejection of plaint and not the defence. This naturally leads us to file a written statement than filing petition to reject the plaint, unless the bar to the suit is clearly explicit on the face of the plaint.
- In commercial Court, we will see a long list of suits filed for passing off. In all those cases, the defence usually raised is long user to the knowledge of the plaintiff and the use is independent and does not create any loss or disturbance to the use of trade mark by the person seeking passing off action. In a suit for infringement of trademark, one can take the defence of long user and acquisance by the plaintiff as well as dissimilarities and under different class subject to the facts of the case.
- Rule 6 to Order VIII will state that there shall be a clear defence to set off in a money suit and the same cannot be raised later unless with the leave of the Court. Counter claim can be filed under Rule 6 A to Order VIII and one of the main thing one has to bear in mind while filing counter claim is that it shall not be more than the pecuniary value of jurisdiction where the plaint is filed. The Counter claim shall be tried as a Cross suit and it will be treated as plaint as per Sub-Rule 4. Rule 6-D provides that the counter claim will be proceeded with independently even if the suit is dismissed for nonprosecution. The plaintiff can also seek to exclude counter claim and to file independent suit and the Court shall pass orders as to exclusion under Rule 6-C.
- In a suit for breach of contract, the usual defence taken is that the contract is not complied with by the party complaining breach or that the contract is differently understood or the clause is violative of Section 23 of Contracts Act. There can also be defence of mutual performance or novation of contract on change of circumstances or due to breach. There can also be a defence of Contra Proferentem depending on the facts of the case.
- In a suit for easement, the lack of pleadings leading to enjoyment of easement or leading to right as to easement may be specifically pleaded. The existence of alternate enjoyment and non existence of facts shall be pleaded explicitly and clearly. Section 21 and events specified in Section 37 to 50 of Indian Easement Act shall be a valid defence in a suit for easement.
- In a testamentary suit, the valid defence subject to circumstances can be that the testator had not executed the Will and the Will is created for the purpose of the case, the Will was not introduced any time prior to the filing of the proceedings or relied upon. The person claiming under the Will had acted independently of the testament and therefore cannot claim under the Will. The Will is not executed with free Will, good mind and body and the beneficiary has participated in the execution of the Will. Ground for exclusion not stated or not valid and the testator had better relationship with the defendant to avoid him. Attestation by persons who are not known to family or doubtful witnesses. These are the prominent defence taken, but subject to the facts of each case.
- The Code in Rule 10 to Order VIII provides for pronouncement of judgement on failure to present written statement in time as provided in the Code.
- Pleadings in Plaint and Written Statement forms the basis for framing issues and the pleadings forms the basis for the parties to let in evidence as evidence let in without pleadings cannot be considered for the purpose of passing judgement in a suit.
- Improper valuation and payment of Court Fees and to determine the same as preliminary issue can also be raised under Section 12 of the Court fees Act.
- Therefore in my view valid affirmative defence defeats the suit and the suit initiated by presenting a plaint is well defended by filing a written statement complying Order VIII Rule 1 to 9. When you are asked what is your defence, you should be in a position to clearly say, I have raised an affirmative defence to defeat the claim in the suit.
This article is written by G.Surya Narayanan, Advocate, Madras High Court, assisted by S.Adhiti, 2nd year Student VITSOL.