90-day time limit for written statement under Repertory Rule 10 Order VIII, but courts should use discretion sparingly: Gujarat High Court

Fund

Petitioner-Defendant sought to set aside the orders of Additional Civil Judge, Bordeli and Additional District Judge, Chhotaudepur (“ADJ”) which closed the Petitioner-Defendant’s right to file a written statement in a lawsuit involving the sharing costume ownership. The plaintiff-respondent was duly summoned but did not file the written statement on time. The ADJ observed that filing a written statement beyond a 120-day period is not permitted.

The petitioner-respondent submitted that, in accordance with the decision of the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v Indian Union [MANU/SC/0450/2005], the 120-day period is executive and not mandatory. Moreover, the trial has not yet started and therefore the filing of the written statement at this stage would not jeopardize the rights of the plaintiff. Moreover, defendants Nos. 1 and 3 are deceased and their legal heirs have not yet been registered and, therefore, the rejection of the written declaration would negatively affect the rights of the defendants. The plaintiff-respondent also cited the reason for the pandemic and consequent restrictions for the delay. The petitioner-respondent has indicated that he is prepared to bear all costs of filing the written statement late.

Judgement

The Court, while interpreting Rule 1 of Order VIII, observed that the word “shall” usually implies the mandatory nature of the provision, however, the context of this provision indicates that the 90 day period is directive. the Salem Lawyer the judgment also confirms the same. Moreover, it is well established that the purpose of the rules of procedure is to advance the cause of justice and not to defeat it. The Court observed:

“Rules or procedure are the handmaiden of justice, not its mistress. In today’s environment, strict interpretation would run counter to justice.”

To support this interpretation, the Chamber has also harmoniously considered Order VIII Rule 1 and Order VIII Rule 10. The provision of Rule 10 allows the Court to either enter judgment against the defendant in the event the written statement, or to make any order it deems appropriate in connection with the lawsuit. Thus, there is no restriction in Ordinance VIII Rule 10 that after the expiration of 90 days no further time may be granted. However, such an extension of time can only be granted in “exceptionally difficult cases” and courts should not nullify the time limit by frequently and systematically extending it. Finally, the lawsuit has not yet started and given the pandemic and the necessary restrictions, the extension of the deadline will not negatively affect the rights of the plaintiff.

Accordingly, the motion in writ was allowed with exemplary costs to the petitioner-respondent.

Title: Rajendrabhai Maganbhai Koli vs. Shantaben Maganbhai Koli

Case no: C/SCA/11625/2020

Quote: