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Tagged: Civil Procedure Code
October 12, 2017 at 9:09 pm #3155
written statement was filed by the defendants without filing any condonation of delay petition 85 days after getting the summons from civil court
is it permissible in law under order 8 rule 1 of CPC, [2002 AMENDMENT ]
written statement is sustainable ..if not what is the consequences
October 13, 2017 at 10:59 pm #3168
Dr. Ashok DhamijaAdvocate
Order 8 Rule 1 of the Code of Civil Procedure 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.”
What this provision lays down is that the court has to record reasons in writing if it allows the written statement to be filed after the period of 30 days. The rule does not specifically say that any application has to be specifically filed by the defendant for condonation of delay, though generally that would be done. One may try to contrast it with other provisions in law relating to condonation of delay. For example, in Section 5 of the Limitation Act, 1963, delay can be condoned “if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period”. So, here the burden is specifically cast on the applicant etc. to show sufficient cause for delay and satisfy the court. But, in Order 8 Rule 1, there is no such language used, and instead of that what is required is that the court has to record reasons in writing for allowing filing of written statement beyond 30 days. Of course, it goes without saying that the reasons recorded by court would be based on the explanation given by defendant or time sought by defendant, which would generally be in writing (through a formal application for condonation of delay) or may perhaps be oral explanation; however, the rule is not clear in this regard.
In this regard, note that in the case of Kailash v. Nanhku, (2005) 4 SCC 480, the Supreme Court has held that even the 90 days’ period mentioned in Order 8 Rule 1 of CPC is directory and not mandatory since in a given case the defendants may face extreme hardship in not being able to defend the suit only because he had not filed written statement within a period of 90 days, though it was also held that the defendants may be permitted to file written statement after the expiry of period of 90 days only in exceptional situation.
It may be noted that in the case of Continental Transport Organization Pvt. Ltd. V. Icici Lombard General Insurance Co. Ltd. [Civil Appeal No. 9836 OF 2010, decided on 22.11.2010] [see here], the Supreme Court observed that:
“In the present case, the learned Single Judge did not even bother to advert to the law laid down in Kailash v. Nanhku and the Division Bench refused to interfere with the order only on the ground that application for condonation of delay was filed after a long time gap. In our opinion, this could not be made a ground for declining to entertain the written statement which was filed with a short delay of 6 days.”
So, in the above case, the Supreme Court felt that a delay in filing of application of condonation of delay cannot be a ground to decline to entertain written statement filed after delay. It is noteworthy that in this case, the condonation of delay application was filed only after the opposite party had filed an application for taking the written statement off the record due to delay, and there was at least a delay of 4 months in filing of condonation of delay application itself.
In your case, the written statement is filed within 85 days of receiving summons. So, it is within 90 days period mentioned in Order 8 Rule 1, during which the court can permit it by recording reasons. If you are for plaintiff, you may oppose it on the ground that there is no application for condonation of delay or that there is no sufficient explanation for delay.
As regards your second query about the consequence of not filing the written statement without time permitted by court, please see Order 8 Rule 10 of CPC, which is as under:
“10. Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles.
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