Time limit for filing written statement under Ordinance VIII, Rule 1, CPC not mandatory: Supreme Court
The Supreme Court reiterated that the time limit for filing the written statement under Ordinance VIII, Rule 1 of the Code of Civil Procedure is not mandatory (if it is not a commercial action).
In this case, an application for an injunction was filed by the plaintiff. The High Court confirmed the trial court’s order refusing to condone the 193-day delay in filing the written statement on the basis that there was “no plausible explanation or coherent reason” for the delay in filing the written statement .
On appeal filed by the defendant, the Apex Court noted that the injunctive suit filed by the plaintiff is not one governed by the Commercial Court Act 2015.
“Therefore, the time limit for filing the written statement under Ordinance VIII, Rule 1 of the CPC is not mandatory in view of the judgment of this Court reported under the title” Kailash V. Nankhu & Ors “. reported in (2005) 4 SCC 480. In view of the judgment cited above, we conclude that the delay in filing the written statement could very well be compensated by costs, but denying the benefit of filing the written statement is unreasonable. .”, the bench Judges Hemant Gupta and V. Ramasubramanian mentioned.
Allowing the appeal, the bench ordered the trial court to expedite the prosecution’s decision taking into account the plaintiff’s old age.
Deadline for filing the written statement: law and precedents
Ordinance VIII rule 1 of the Code of Civil Procedure provides that the defendant must, within thirty days from the date of service of the summons against him, submit a written statement of his defence: it being understood that if the defendant does not file the written statement within the said thirty day period, he is entitled to file the same on any other day, which may be specified by the Court, for reasons to be recorded in writing, but which shall not be more later than ninety days from the date of service of the summons.
In Kailash Vs. Nanhku, it stood like this:
- The purpose of providing the timeline for filing the written statement under CPC Order VIII, Rule 1 is to expedite, not scuttle, the hearing. The provision spells out a handicap on the defendant. It does not impose an embargo on the Court’s power to extend the time limit. Although the wording of the proviso in Rule 1 of CPC Order VIII is drafted in negative form, it does not specify any penal consequences flowing from non-compliance. Since the provision falls within the domain of procedural law, it must be directive and not mandatory. The Court’s power to extend the time for filing the written statement beyond the time frame provided by CCP Order VIII, Rule 1 is not completely removed.
- Although CPC Ordinance VIII, Rule 1 is part of procedural and therefore directive law, in view of the need for expeditious trial of civil cases which persuaded Parliament to enact the provision in its present form, it is considered that normally the time schedule contained in the provision should be followed as a general rule and deviating from it would be exceptionally. A request for an extension of time made by the defendant should not be granted merely as a matter of routine and merely for asking, especially when the 90 day period has expired. An extension of time may be granted on an exceptional basis, for reasons to be attributed by the defendant and also recorded in writing, however briefly, by the court when satisfied. An extension of time may be allowed if it should be granted in exceptional circumstances, occasioned by reasons beyond the control of the defendant and if a serious injustice would be caused if the time limit were not extended. Fees may be imposed and an affidavit or documents supporting the defendant’s reasons for an extension of time may be required, depending on the facts and circumstances of a particular case.
In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, it was observed that there is no restriction in Ordinance VIII Rule 10 that after the expiration of ninety days, further time may not be granted. “The Court has broad power to ‘make such order in connection with the prosecution as it deems fit’. It is therefore clear that the provision of Order VIII, Rule 1, providing for an upper limit of 90 days to file a written statement is a repertoire. That said, we would like to make it clear that an order extending the time for filing a written statement cannot be made on a routine basis. The time can only be extended in exceptionally difficult cases While extending the time limit, it should be borne in mind that the legislature has set the upper time limit of 90 days.The Court’s discretion to extend the time limit should not be exercised so frequently and consistently as to negate the time limit fixed by Ordinance VIII Rule 1.”
Before the commercial courts
The Commercial Courts, Commercial Division and Commercial Appeal Division of the High Courts Act 2015 amended this provision by adding the following reservation to Rule 1: However, if the defendant does not file the written statement within the said thirty day period, he is entitled to file the written statement on another day, which may be specified by the court, for reasons to be reduced to writing and the payment of the such costs as the court deems appropriate, but which shall not be later than one hundred and twenty days from the date of service of the summons and the expiration of a period of one hundred and twenty days from the date of the service of the subpoena, the defendant is deprived of the right to file the written statement and the Court does not allow the written statement to be recorded. But it has been made applicable to cases involving commercial disputes.
In SCG Contracts India Pvt. Ltd v KS Chamankar Infrastructure Pvt. Ltd, the Supreme Court observed that this reservation is mandatory and that no written statement can be entered in commercial proceedings if it is not filed within 120 days from the date of service of the subpoena.
In Desh Raj v Balkishan (D) clarified that the mandatory time limit for filing a written statement does not apply to non-commercial lawsuits. With respect to non-commercial lawsuits, the written statement deadline is directive and not mandatory, the court said. Last year, it was observed in the case of Shoraj Singh v Charan Singh that the 90 day time limit for filing a written statement under Ordinance VIII, Rule 1 of the Code of Civil Procedure in lawsuits civilians, is directive.
Bharat Kalra vs. Raj Kishan Chabra | 2022 LiveLaw (SC) 465 | CA 3788 FROM 2022 | May 9, 2022
Coram: Judges Hemant Gupta and V. Ramasubramanian
Code of Civil Procedure, 1908; Order VIII Rule 1 – The deadline for filing the written statement is not mandatory – The delay in filing the written statement could very well be compensated by costs. [Referred to Kailash vs Nankhu (2005) 4 SCC 480 ] (Paragraph 3-4)
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