Permission to file a written statement after maximum period of 90 days in a civil suit

SHARE

Question: Is it permissible for the court to permit filing of the written statement by the defendant in a civil suit beyond the maximum period of 90 days permissible under Order 8 Rule 1 of the Civil Procedure Code?

Answer: Before I answer this question, let me reproduce Rule 1 and Rule 10 of the Order 8 of the CPC, because they would be relevant for this answer:

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.”

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.”

It is clear from Rule 1 above that ordinarily the defendant is required to file the written statement of his defence within a period of 30 days. However, the Proviso to the said Rule permits the Court, for reasons to be recorded in writing, to allow filing of the written statement within a maximum period of 90 days.

Now, your question is whether the written statement can be filed even beyond this maximum period of 90 days?

The answer to your question is “yes” in certain exceptional situations. Let me explain the answer.

In the case of Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344, the Supreme Court has interpreted the above Rule 1 with the help of the above Rule 10 of Order 8 of the CPC, in the following words:

21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that 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, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word “shall”, the court has been given the 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 provision 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 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.”

It is quite clear from the aforesaid judgement of the Supreme Court that the maximum time period of 90 days for filing the written statement mentioned in Order 8 Rule 1 is only directory and not mandatory. This implies that in certain exceptional situations, the court has the power to extend the aforesaid maximum period of 90 days for the purposes of filing of the written statement by the defendant. However, as pointed out by the Supreme Court itself, such extension of time beyond 90 days should only be in exceptionally hard cases.

It is pertinent to point out that in a previous case, namely, Kailash v. Nanhku, (2005) 4 SCC 480, the Supreme Court had come to more or less a similar conclusion, though in a different context, that the power of the court to extend time for filing of the written statement in an election petition is not circumscribed by Order 8 Rule 1 of CPC and the proviso thereto.

Recently in the case of Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639, the Supreme Court has reiterated the legal principle laid down in the aforesaid case of Salem Advocate Bar Assn. that the maximum time period of 90 days for the purposes of filing of the written statement can be extended in exceptional cases. It was held that in such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days.

In view of the aforesaid judgments of the Supreme Court, it should be clear that in appropriate cases further time may be granted by the court beyond the maximum permissible time period of 90 days for the purposes of filing of the written statement by the defendant in a civil suit. However, this can be done only in exceptional situations and the burden to explain the reasons for delay in a satisfactory manner lies on the defendant who seeks extension of time for filing the written statement.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

Facebook Comments

SHARE & LIKE