The Civil Procedure Code which consolidated and amended the laws relating to the procedure of the Courts of Civil Judicature in the year 1908, has in the recent times undergone several amendments based on the recommendations of the Law Commission displaying the anxiety of Parliament to secure an early and expeditious disposal of civil suits and proceedings but without sacrificing the fairness of trial and the principles of natural justice in-built in any sustainable procedure. The Statement of Objects and Reasons for enacting Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) records the following basic considerations which persuaded the Parliament in enacting the amendments:-
(i) that a
litigant should get a fair trial in accordance with the accepted principles of
natural justice;
(ii) that
every effort should be made to expedite the disposal of civil suits and
proceedings, so that justice may not be delayed;
(iii) that
the procedure should not be complicated and should, to the utmost extent
possible, ensure fair deal to the poorer sections of the community who do not
have the means to engage a pleader to defend their cases.
The text of
the provision in the present form has been introduced by Code of Civil
Procedure (Amendment) Act, 2002 (22 of 2002) with effect from 1.7.2002. The
purpose of such like amendments is stated in the Statement of Objects and
Reasons as "to reduce delay in the disposal of civil cases".
The text of
Order VIII, Rule 1, as it stands now, reads as under : -
"1. Written
statement :- The defendant shall, within thirty days from the date of
service of summons on him, present a written statement of his defence:
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 same on such other
day, as may be specified by the Court, for reasons to be recorded in writing,
but which shall not be later than ninety days from the date of service of
summons."
From the
above provision Three things are clear.
Firstly, a
careful reading of the language in which Order VIII, Rule 1 has been drafted,
shows that it casts an obligation on the defendant to file the written
statement within 30 days from the date of service of summons on him and within
the extended time falling within 90 days. The provision does not deal with the
power of the court and also does not specifically take away the power of the
court to take the written statement on record though filed beyond the time as
provided for.
Secondly,
the nature of the provision contained in Order VIII, Rule 1 is procedural. It
is not a part of the substantive law.
Thirdly, the
object behind substituting Order VIII, Rule 1 in the present shape is to curb
the mischief of unscrupulous defendants adopting dilatory tactics, delaying the
disposal of cases much to the chagrin of the plaintiffs and petitioners
approaching the court for quick relief and also to the serious inconvenience of
the court faced with frequent prayers for adjournments. The object is to
expedite the hearing and not to scuttle the same. The process of justice may be
speeded up and hurried but the fairness which is a basic element of justice
cannot be permitted to be buried.
However the
new provision created confusion among the Courts and lawyers that whether the
default outer limit of ninety days prescribed by the proviso to Rule 1 of
Order VIII of the Code is conclusive so that in no case, howsoever exceptional,
would a breach of this outer limit be warranted and that in no case, the
balancing act of the court would be allowed to incline towards an
extension of time, beyond the period of ninety days, for filing the written statement.
The
constitutional validity of the 2002 Amendment was challenged before the
Supreme Court in Salem Advocate Bar Association v. Union of India AIR 2003
SC 189, (2003) 1 SCC 49 (Salem Advocate Bar I). The Court held that the
2002 Amendment was not in any way ultra vires the Constitution. However To
ensure that the amendments became effective and resulted in quicker
dispensation of justice, the Court constituted a Committee with directions to
submit a detailed report concerning the 2002 Amendment.
As regards the provisions of Rule 1 of Order VIII, the Court reproduced the Report, in para 21, as follows:
" The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. "
" In construing this provision, support can also be had from Order VIII Rule 10, …where despite the use of the word "shall"in Rule 1, the court has been given discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provisions of Order 8, Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. … The effect would be that under Rule 10 of Order VIII, the court in its discretion would have the power to allow the defendant to file the written statement even after the expiry of the period of 90 days provided under Order VIII Rule 1."
Clearly, therefore, the provision of Order VIII Rule 1 providing for the upper limit of 90 days to file written statement is directory.
In Kailash v.
Nanhku and Ors AIR 2005 SC 2441, (2005) 4 SCC 480 the Apex Court
observed that
" All
the rules of procedure are the handmaid of justice. The language employed by
the draftsman of processual law may be liberal or stringent, but the fact
remains that the object of prescribing procedure is to advance the cause of
justice. In an adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice dispensation. Unless
compelled by express and specific language of the Statute, the provisions of
the CPC or any other procedural enactment ought not to be construed in a manner
which would leave the court helpless to meet extraordinary situations in the
ends of justice. "
" It is
also to be noted that though the power of the Court under the proviso appended
to Rule 1 of Order VIII is circumscribed by the words __ "shall not be
later than ninety days" but the consequences flowing from non-extension of
time are not specifically provided though they may be read by necessary
implication. Merely, because a provision of law is couched in a negative
language implying mandatory character, the same is not without exceptions. The
courts, when called upon to interpret the nature of the provision, may, keeping
in view the entire context in which the provision came to be enacted, hold the
same to be directory though worded in the negative form."
The Court
further observed that while extending the time beyond the stipulated period of
90 days, the courts
may impose costs as a means to
(a) deter the defendant and
(b)
compensate the plaintiff.
The Court also held that the defendant seeking extension may be required to furnish affidavit and other documents in support of the grounds pleaded for extension of time, depending on the facts and circumstances of a given case.
1. In Kailash v. Nanhku and Ors AIR 2005 SC 2441, (2005) 4 SCC 480 The appellant was served with the summons, accompanied by a copy of the election petition, requiring his appearance before the Court on 6.4.2004. On the appointed day, the appellant appeared through his counsel and sought for one month's time for filing the written statement. The Court allowed time till 13.5.2004 for filing the written statement. On 13.5.2004, the appellant again filed an application seeking further time for filing the written statement on the ground that copies of several documents were required to be obtained. The Court adjourned the hearing to 3.7.2004 as, in between, from 13.5.2004 to 2.7.2004, the High Court was closed for summer vacation.
On 22.6.2004, appellant's advocate's nephew expired. However, the written statement was drafted and kept ready for filing. The registered clerk of the advocate was deputed for filing the same in the Court on the appointed day. The clerk reached Allahabad, the seat of the High Court, from Gazipur where the appellant and his advocate resided. On 1.7.2004, that is, two days prior to the day of hearing, the affidavit of the appellant annexed with the written statement, was sworn in at Allahabad. However, (as is later on stated), on account of lack of understanding on the part of the registered clerk, the written statement could not be filed on 3.7.2004 but the same was filed on 8.7.2004 accompanied by an application for condonation of delay in filing the written statement briefly stating the reasons set out hereinbefore.
In appeal against the refusal of the High Court to accept the written statement on the ground of expiry of the prescribed period of 90 days, the Hon’ble Supreme Court set aside the order of the High Court and accepted the written statement.
2. In Shaikh
Salim Haji Abdul Khayumsab v. Kumar,AIR 2006 SC 396, (2006) 1 SCC 46 the
appellants were summoned on 21.10.2003 and sought time to file the written
Statement, which was granted first until 17.11.2003 and for a second time
until 19.02.2004. The latter date being a holiday, the written statement was
filed on 20.02.2004. The trial court refused to accept the written
statement on the ground of limitation.
The Supreme Court found that the trial court had itself granted time up to 19.02.2004, which date fell beyond the period of 90 days. On the reasoning, that had the written statement been filed on 19.02.2004, the trial court could not have refused to accept the written statement as it was within the time granted by it, held that a mere fortuitous circumstance cannot make the written statement filed, unacceptable.
3. In R.N. Jadi v. Subhashchandra AIR 2007 SC 2571, (2007) 6 SCC 420 A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts
4. In Zolba
v. Keshao AIR 2008 SC 2099, (2008) 11 SCC 769 the appellant
stated that on instruction of his counsel in the trial court, the written
statement was not filed within the period of limitation as the appellant was
under bonafide belief that the written statement shall be filed after the
decision of the appeal by the District Court. The written statement was,
however, filed and the records of the case were called from his lawyer who has
been conducting his case in the appeal pending before the District Court. The
misc. appeal has been filed against an order of injunction before the District
Court Chandrapur whereas the suit is pending before the Civil Judge, Junior
Division, Nagbhid. Since the appeal was pending, the records of the appellant
were then lying with the lawyer at Chandrapur. Therefore, the file was not
available with the lawyer of the appellant at Nagbhid and therefore, the
written statement could not be filed within the period of limitation.
The Court held that "Such being the position, in our view, the facts stated would constitute sufficient cause for condoning the delay in filing the written statement and it has to be taken that the non-availability of records at Nagbhid had prevented the appellant from filing the written statement within the period of limitation which in our view was an exceptional case constituting sufficient cause for condoning the delay in filing the written statement"
5. In Mohammed
Yusuf v. Faij Mohammad, 2009 (1) SCALE 71 the summons in respect of a
suit for a decree for permanent injunction with application for temporary
injunction was served on 06.07.2002 and the adjournments were sought and
granted from time to time until 31.05.2005, when the plaintiff applied for
pronouncement of judgment in terms of Order VIII Rule 10 of the Code on the
ground of non-filing of the written statement by the defendant. On the
said date, no application for condonation of delay was however filed. The
trial court refused to entertain the written statement and, instead, fixed the
matter for recording of evidence in support of plaintiff’s case. In a writ
petition, however, the High Court allowed the petitioner to contest the suit
on merits and accepted his written statement, subject to payment of costs
of Rs. 10,000/-.
6. In Chittanku
Ranjan Das vs Swati Das & Ors;( C.O. No. 34 of 2015 Cal HC) the
suit was instituted on 18th November, 2013 and an application for
injunction was moved on 20.11.2013. The defendant no. 3 was on caveat and
appears in the said application. The defendant no.2 who is the petitioner in
the revisional. application was not on caveat and a service was directed
to be affected upon the other defendants including the petitioner herein
under Order 39 Rule 3 (a) & (b) of the Code of Civil Procedure. The
petitioner appeared on 19.12.2013 and prayed for a time to file written
objection to the injunction application. The next date was fixed on 27th
January, 2014 when further time to file written objection but further
sought permission to file written objection to the injunction application
was sought by the petitioner. Though the injunction application was
further fixed on 3rd March, 2014 and 4th April, 2014 but it does not
appear that the petitioner have waived the service of summons by conduct
or by specific action. It is only on 13th May, 2004, the petitioner not
only prayed for extension of time to file written statement.
The Court held that "Once the defendant have taken steps to disclose the defence, the time under Order 8 Rule 1 of the Code should begin. It appears that the written statement was filed on 16th July, 2014 within 120 days. The written statement, therefore, does not appear to have been filed beyond the outer limit and once the Court permitted the defendant to file written statement by enlarging the time, it would be a travesty of justice that the written statement filed subsequently shall not be accepted."
However in Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd, AIR 2007 SC 1574 where the summons was served on the defendant on 22.03.2005. On 25.04.2005, the counsel for the defendant sought, and was granted, time to file the written statement until 20.06.2005. The matter was adjourned three times and the written statement was finally filed in August 2005, i.e. almost five months later. Despite serious objections from the plaintiff, the court accepted the written statement, subject to costs of Rs.2,000/-. The action of the court accepting the written statement was challenged before the Supreme Court on the ground that the proviso to Order VIII, Rule 1 mandates the recording of reasons, which, in the matter, the courts below had failed to record. The apex Court set aside the orders of the lower courts on the ground that no reason(s) had been indicated justifying the acceptance of the belated written statement.
Thus it is clear from the above discussion that the the limitation of filing written statement under Order VIII, Rule 1,is directory and not mandatory. The Court may accept written statement beyond the maximum prescribed limit of 90 days. However, the power of the Court to grant extension should be exercised
(a) with
caution,
(b) for
adequate reasons
(c) only
based on a clear satisfaction of the
justification
for granting such extension and
(d) only in
rare and exceptional cases.
What, however,continues to be difficult is the assessment of the gravity of circumstances in which judicial discretion warrants an exercise in favour of the extension of time.
