5 W. R., Mis., 32. And the appeal will lie to the same Court as if the sum had been demanded in a separate suit (section 216)-Ram Lal vs. Lancaster, 3 Alla., 114; overruling Masooma Beebee vs. Nuzar Fatma, 1 Alla., 203. The final judgment should determine both the original and the cross-claim; but the decree shall only be for the recovery of the balance-section 216, post; 4 C. P. D., 72.

Appeal.-If the memorandum of appeal is not sufficiently stamped, the Court can levy the stamp-duty.-Chennappa vs. Raghunatha, I. L. R., 15 Mad., 29.

Costs. The parties should get costs as on independent actions-Shrapnel vs. Laing, 20 Q. B. D., 334.

Attorney's Lien.-Plaintiff in a resumption suit, is entitled to set-off the amount of his taxed costs against the mortgage-money (notwithstanding any claim which the defendant's attorney may have against the defendant in respect of the costs of the suit)Brijnath vs. Juggernath, I. L. R., 4 Cal., 742; and the general rule is that the right of set-off is not affected by the solicitor's ordinary lien for costs-Pringle vs. Cloag, 10 C. D., 676. But see Edwards vs. Hope, 14 Q. B. D., 922.

Where a solicitor is discharged by his client he holds papers entrusted to him subject to his lien for costs, and he has the same lien upon translations made by the Court interpreter (at the solicitor's expense) as upon other documents, and he will not be compelled to produce them-Bai vs. Narranji, I. L. R., 4 Bom., 353.

Execution of Decree.-As_to_set-off of decree against purchase-money-See Gopal Singh vs. Roy Bunwaree, 5 C. L. R., 181; against mortgage-money-See Brijnath vs. Juggernath I. L. R., 4 Cal., 742; in favour of a pre-emptor-Ishri vs. Gopal, I. L. R., 6 Alla., 351.

Purchaser for Value.-As to what is sufficient to raise the question of a bonâ fide purchaser for value-See Kishori Mohun vs. Mahomed, I. L. R., 18 Cal., 188.

112. Except as provided in the last preceding section no written statement shall be received after the first hearing of the suit: 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:

Provided also that a written statement, or an additional written statement, may, with the permission of the Court, be received at any time for the purpose of answering written statements so required and presented.

Act VIII of 1859, section 122. This section applies to H. C.

Additional Written Statement.-In a suit for wrongful dismissal defendant is not allowed to give evidence of a transaction, involving instances of misconduct not set forth in defendant's written statement. He should file a supplemental written statement, and this must be done before the first hearing-Munchershaw vs. The New Dhurumsey Co., I. L. R., 4 Bom., 576.

The object of an additional written statement is to supply what may have been omitted in the first and not to contradict it-Douglas vs. The Collector of Benares, 5 Moore 271, p. 290.

Within a Fixed Time.-If a written statement is filed after the time fixed by the Court, it will not be struck out of the record unless the other side applies quickly-The New Fleming Co. vs. Kessowji, I. L. R., 9 Bom., 373, p. 381.

66

At any Time.-The words of Act VIII, 1859, section 122, were any time before final judgment," and these were held to mean that written statements could be called for only by the first Court and before judgment-Juggessur Mookerjee vs. Gopee Kishen, 5 W. R., 50. But unless they are called for by the Court or filed under section 111, they cannot be received after first hearing-Huza Ali Nuckee vs. Mirza Emdad Ali, W. R., 1864, p. 44.

Court may Require.-The practice in the Calcutta High Court is when one of the parties neglects to file a written statement, to examine him as the grounds of his defence and confine him to that statement unless a written statement seems desirable, when the case will be adjourned for that purpose at his expense-Ramrutton vs. The Oriental Steam Navigation Co., 2 Hyde, 89.

The word "require," does not prevent a Court from allowing an additional written statement being filed on motion made. In the case of Dasmani Dasee vs. Srinath Ghose, 3 B. L. R., App., 11, on an application by the defendant to be allowed to file an additional written statement, two objections were raised-(1) it was not called for by the Court, and (2) it was inconsistent with the original written statement. The Court admitted it on payment of the costs of the application, at the same time intimating that such an additional statement would not have been accepted from the plaintiff.

A Court should not require a written statement inconsistent with the plaint, but it is justified in calling for one, not with the object of adding to or varying plaintiff's claim, but to supply omissions in the plaint-Jahangeer vs. Bhickaree Lall, 11 W. R., 71; and where a plaintiff claimed land under an amicable arrangement subsequent to a deed of sale, and the defendant denied the sale and the arrangement, an additional statement was taken with the deed of sale, as plaintiff asserted he could not anticipate that the defendant would deny his right altogether-Lall Mahomed vs. Dhoolee Ram, 22 W. R., 377.

The mere irregularity of the Court calling for a written statement without any sufficient cause is not a good ground of special appeal; the appellant must also be prejudiced thereby-Lall Mahomed vs. Dhoolee Ram, 22 W. R., 377.

113. If any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pass a decree against him, or make such order in relation to the suit as it thinks fit.

Procedure when party fails to present written statement called for by Court.

Act VIII of 1859, section 106. This section applies to H. C.

Where the defendants, after ample opportunity, neglected to put in a written statement, the Court, per Peterson, J., stated, that in future he should put the defendant into the box and examine him as to the grounds of his defence; and if on examination it should appear that a written statement is desirable, the case would be adjourned for that purpose at the expense of the defaulting party-Ramrutton Dass vs. The Oriental Inland Steam Navigation Co., 2 Hyde, 89. Defendant remained in Calcutta one month after it was ordered he should put in a written statement, and then went on a pilgrimage. His son applied for leave to file a written statement, and his application was refused, as no cause was shewn why his father had not filed it before he left Calcutta-Sreemutty Denomoye Dossee vs. Harachurn Coondoo, 1 Bourke, 153.

Frame of written statements.

114. Written statements shall be as brief as the nature of the case admits, and shall not be argumentative, but shall be confined as much as possible to a simple narrative of the facts which the party by whom or on whose behalf the written statement is made believes to be material to the case, and which he either admits or believes he will be able to prove.

Every such statement shall be divided into paragraphs, numbered consecutively, and each paragraph containing as nearly as may be a separate allegation.

Act VIII of 1859, section 123. This section applies to H. C.

A written statement is not in the nature of a pleading and should not be written after inspecting that of the opposite party, nor by way of rejoinder to it-Jadub Ram vs. Ram Lochun, 5 W. R., 56; Jahirooddeen vs. Nasirooddeen, 3 Wy., 265. It should contain nothing more than a bona fide statement of the facts of the case-Kasublall vs. Tremearne, 3 B. L. R., App., 12. Anything in the shape of argument or evidence or conclusions of law to be drawn from the facts pleaded is inadmissible-Williamson vs. London and N. W. Ry. Co., 12 C. D., 787. In a suit to set aside a deed of sale as false, it was stated among other things: "It appears from a copy of the fraudulent and fabricated deed of sale that the defendant No. 1 has made the plaintiffs declare in it the fact that out of the consideration money amounting to Rs. 6,500, the putowa (or mortgage) money due to H. and Co. amounting to Rs. 548-4, is kept in deposit, and Rs. 5,951-12 were received in cash to meet the demand of Mussamut Anarkoli Koer, and defray other necessary expenses; but this clause is the result of the foulest device.

If the putowa-money, Rs. 548-4, due to H., were payable out of the usufruct of putowa property, then what was the use in selling the property? It would be absurd to suppose that any one would sell his estate to satisfy by putowa-debt. As for the debt due to Mussamut Anarkoli Koer, it was paid by the plaintiffs out of their own money: the said clause in the deed of sale is the result of the foulest device, and has been introduced into it, to carry out a fraudulent design." All this should have been struck out-Bishen Sahaye vs. Beer Kishore, 8 W. R., 296. See this case for other examples of bad pleading.

Object of Statement.-The object of written statements being to find out the real points in dispute between the parties, and thus prevent fabrication of false evidence, or the unnecessary production of evidence, they should be framed with the greatest care and deliberation so as to dispense with parol statements at the settlement of issues-Anund Chunder vs. Woomes Chunder, 1 Hyde, 147; the narrative should be complete. In the case of Sreenath Mullick vs. Brojolall Pyne and Doorgaprasad Seal, 1 Hyde, 33, plaintiff sued on a promissory note. In cross-examination of the principal witness for the plaintiff it came out that defendant had signed a receipt as well as a promissory note. No mention of this had been made in the written statement. In his judgment, Wells, J., said-"Though an important document, no mention is made of it in the written statement... A written statement under Act VIII, 1859, is required to set forth a full and true narrative of the facts of the case, and a party cannot be allowed any discretion as to whether he will state or withhold a fact of such importance as the execution of a receipt for the money sued for."-See note under section 147.

Effect of Written Statement: Evidence. --A written statement cannot be read against any party save him by whom it has been made or those who are bound by his admission Joggessur Mookerjee vs. Gopee Kishen, 5 W. R., 50. But pleadings in India must not be construed strictly and an admission of some notice is not an admission that a statutory notice has been properly given-Madho Persad vs. Gajadhar, 11 Ind. App., 186, p. 192; and what is not denied cannot be looked upon as admitted-Natha Singh vs. Jodha, I. L. R., 6 Alla., 406.

In a suit for possession of land the written statement of one co-sharer cannot be used against the others-Mookta Keshee vs. Koylash Chunder, 7 W. R., 493; 1jjutoollah Khan vs. Ram Churn, 12 W. R., 39. So where A sued B and C for real property and B disclaimed in favor of A: Held, that this was no evidence against C-Lachman vs. Tansukh, I. L. R., 6 Alla., 395; and see Azizullah vs. Ahmad, I. L. R., 7 Alla., 353.

Nature of: How Construed. Even as against the party making it, it is not looked upon as a plea by way of confession and avoidance of which the opposite party can take advantage as regards the admission, leaving him to prove the remainder. It is like an answer in Chancery, and if put in evidence the whole must be read together, though the Court need not believe the whole of it-Poolin Beharee vs. Watson & Co., 9 W. R., 190. See, however, Brijokishore vs. Bishonath Dutt, W. R., 1864, p. 305. In a suit for enhancement of rent the defendant admitted that the productiveness of the land had increased but not otherwise than by his own agency; it was held that, as the statement was qualified, the first portion of it could not be used without the qualification for the purpose of throwing the proof of the latter portion on the defendant (id.); overruling Nobeen Kishen vs. Shofatoolah, 1 W. R., 24. So where plaintiff sued to set aside a kherajee bromutur tenure and the defendant admitted he held as tenant at a yearly quit-rent, it was held that the statement must be taken with the qualification, and that the plaintiff could not use the statement as an admission that the defendant held as tenant, and throw on him the onus of proving that he held at a yearly rent, although the Court was not bound to believe the whole of the statement- Nilmoney Singh vs. Ramanoograh, 7 W. R., 29.

The rule in short is this, that where a statement is made subject to a qualification, the whole must be put in evidence; and the Court may attach to it or any portion of it as much value as it deems fit-Radha Churn vs. Chunder Monee, 9 W. R., 290.

But if a party makes a series of independent and unqualified statements, they may be used against him; the rule above-mentioned as regards qualified statements goes no further than to lay down that an unfair use cannot be made of a man's statement by trying to convert into and admission by him what he never intended to be an admission. In a suit for land the defendant made two distinct assertions (1) that the plaintiff's ancestor was in possession up to a certain date, and (2) that at that date he relinquished the lands, and they were settled with the defendant; the first was taken as an admission against the defendant, but he was called on to prove the second - Baikanthanath vs, Chandra Mohan, 1 B. L. R., 133. And in a suit on a bond containing a recital of payment. if the defendant admits execution but denies payment, the onus to prove the latter lies on him-Maniklal vs. Ramdas, 1 B. L. R., 92.

A defendant cannot treat a written statement as evidence in his own favour. This was attempted in Shaikh Shurfuraz vs. Dhunnoo, 16 W. R., 257. Ainslie, J., said :"Under that Act (VIII of 1859) it is the duty of the Court to examine the written statements in order to see on what points the parties are at issue, and to lay down the issue, and to receive and consider the evidence adduced on the points in dispute; but the Court

will not allow the parties to waste its time by producing evidence to establish that which has never been contradicted; and therefore to lay down that, when a defendant admits any one fact contained in the written statement of the plaintiff, and thereby excludes independent evidence thereof, he is entitled to say that the plaintiff has relied on his statement as evidence, and that he (defendant) is in consequence in a position to claim that the whole of it may be read as evidence in his own favour, is a proposition that cannot be maintained." Subject to the distinction referred to in the cases above, which were not cited, this seems a very clear exposition of the doctrine.

As regards Matters not Set Forth.-By sections 23 and 34 of the Patent Act, no evidence shall be admitted at a trial for infringing a patent in regard to the validity of the patentee's exclusive privilege, unless on the particular grounds set forth in written statements of the parties - Sheen vs. Johnson, I. L. R., 2 Alla., 368; and see Ledgard vs. Bull, 13 Ind. App., 134. And in a case of wrongful dismissal, defendant was not allowed to go into evidence of a specific transaction as an instance of misconduct on the part of the plaintiff, not set forth in his written statement, but which he became aware of before first hearing. It was held that he should have filed a supplemental written statementMunchershaw vs. The New Dhurumsey Co., I. L. R., 4 Bom., 576.

Written statements to

115. Written statements shall be signed and verified in the manner herein before provided for signing be signed and verified. and verifying plaints, and no written statement shall be received unless it be so signed and verified.

Act VIII of 1859, section 123. This section applies to H. C.

Persons exempted from attendance in the Civil Courts are not exempted from subscribing and verifying their written statements, except for good cause, and even then care should be taken that the party verifying has a knowledge of the case, and is not an ignorant servant who can have no acquaintance with the facts he pretends to verify-Kinoosing Roy vs. Eshan Chunder Roy, 2 Ŵym., 253.

When an application is made that a written statement be verified by an attorney of a party, it is desirable, but not absolutely necessary, that notice should have been given to the other side-Finlay, Campbell & Co. vs. Steele, 1 Ind. Jur., N. S., 39. It is very doubtful if an attorney, as such, can verify written statements under the Code.

If an unverified statement is admitted on the record without objection, the allegations contained in it should be noticed and issues framed accordingly-Radha Churn vs. Moran & Co., 13 W. R., 342.

Power of Court as to argumentative, prolix,or irrelevant written statement.

116. If it appears to the Court that any written statement, whether called for by the Court or spontaneously tendered, is argumentative or prolix, or contains matter irrelevant to the suit, the Court may amend it then and there, or may, by an order to be endorsed thereon, reject the same, or return it to the party by whom it was made for amendment within a time to be fixed by the Court, imposing such terms as to costs or otherwise as the Court thinks fit.

When any amendment is made under Attestation of amend- this section, the Judge shall attest it by his

ments.

signature.

When a statement has been rejected under this section, the party making it shall not present another written statement, unless it be expressly

Effect of rejection.

called for or allowed by the Court.

Act VIII of 1859, section 124. This section applies to H. C.

Practice. The practice in the High Court is to make an application to have the statement taken off the file on the ground that it is malicious, argumentative, or

irrelevant, and if the applicant succeeds, the order is that the written statement be taken off the file with leave to file a new written statement within a given time, usually a week, and the unsuccessful party pay the costs of the application - Kasublal vs. Tremearne, 3 B. L. R., App., 12; an order fining the pleader one rupee who filed the written statement, and directing a large portion of it to be struck out, is bad-Boolee Singh vs. Hurobuns, 7 W. R., 212. And compare Ranee Roshan Jehan vs. Inmayat Hossein, 1 Marsh., 127.

Applications to take the statement off the file should be made as soon as possible after the written statement has been filed-The New Fleming Spinning Co. vs. Kessouji, I. L. R., 9 Bom., 373, p. 381. In the High Court, Calcutta, on its Original Side if a written statement has been four clear days upon the file in compliance with Rule 28, it cannot be taken off when the suit is ripe for hearing - Smallwood vs. Parry, 1 Coryton, 39; referring to Nawab Nizam of Bengal vs. Rajah Prosonnonarain Deb, "Hurkaru," 7th of May 1864. And if evidence has been taken, the applicant would be bound to show that he had been in some way prejudiced-Lall Mahomed vs. Dhoolee Ram Dass, 22 W. R., 377.

In Bombay the rule is that a Court has power to take a written statement off the file for irrelevancy, before it is produced at the hearing of the suit. The filing of a written statement does not necessarily make it a part of the record, but is merely for the purpose of notice to the plaintiff of the nature of the defence-Keshabji vs. Nasarvanji, 10 Bom., 425, but see The Fleming Co. vs. Kessowji, I. L. R., 9 Bom., 373, p. 381.

As to cases in which written statements were rejected, see note on section 114, ante.

Ascertainment whether allegations in plaint and written statements admitted or denied.

CHAPTER IX.

OF THE EXAMINATION OF THE PARTIES BY THE COURT. 117. At the first hearing of the suit the Court shall ascertain from the defendant or his pleader whether he admits or denies the allegations of fact made in the plaint, and shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.

This section applies to H. C. and P. S. C. C.

Oral examination party, or companion of

118. At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person himself or his pleader. able to answer any material questions relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the Court: and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.

Act VIII of 1859, section 125. This section applies to H. C. and P. S. C. C. Appearing. This section contemplates the case where a party has appeared in proper time. Thus, where defendants were summoned to appear, and they did not, but put forward excuses for their non-attendance which were deemed insufficient, and on a subsequent day the suit was decided ex- parte, although their pleaders were present, it was held that the decision was right - Joy Prokash vs. Meghraj, 12 W. R., 207; on the other hand, if the parties appear properly, it is the duty of the Court to examine them, and frame the issues: not putting in a written statement does not justify the trial of a suit ex-parte-Sivarajadhani vs. Kuppagantulu, 2 Mad., 311. As to "Ex-parte," see note to section 100. The parties have no right to put questions to each other.