ORDER VIII – WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM
1. Written statement.
(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.
(2) Save as otherwise provided in rule 8A, where the defendant relies on any document (whether or not in his possession or power) in support of his defence or claim for set-off or counter claim, he shall enter such documents in a list, and shall,-
(a) If a written statement is presented, annex the list to the written statement:
Provided that where the defendant, in his written statement, claims a set-off or makes a counter-claim based on a document in his possession or power, he shall produce it in Court at the time of presentation of the written statement and shall at the same time deliver the document or copy thereof to be filed with the written statement.
FOR COMMERCIAL COURTS-
“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.”
(b) If a written statement is not presented, present the list to the Court at the first hearing of the suit.
(3) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(4) If no such list is so annexed or presented, the defendant shall be allowed such further period for the purpose as the Court may think fit.
(5) A document which ought to be entered in the list referred to in sub-rule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit.
(6) Nothing in sub-rule (5) shall apply to documents produced for the cross-examination of plaintiff’s witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness merely to refresh his memory.
(7) Where a Court grants leave under sub-rule (5), it shall record its reasons for so doing and no such leave shall be granted unless good cause is shown to the satisfaction of the Court for the non-entry of the document in the list referred to in sub-rule (2).
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