Order 8 Rule 1 of the Civil Procedure Code (CPC) allows a maximum period of 90 days for filing of the written statement in a suit:
“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.”
However, in several judgments, the Supreme Court has held that this provision of maximum of 90 days is directory, and that it does not take away the inherent discretion of courts to condone certain delays. In this regard, in the case of Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344, the Supreme Court held as under:
“There is no restriction in Order 8 Rule 1 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.”
A recent case in which a similar view was expressed is that of Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639.
However, it may be noted that the Commercial Courts Act, 2015, through Section 16 has amended the CPC in its application to commercial disputes to provide as follows:
“16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.—(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a specified value, stand amended in the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a specified value.
(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908, by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.”
In the Schedule to the Commercial Courts Act, Order 8 Rule 1 of the CPC is amended as under:
“in Order VIII,—
(i) in Rule 1, for the proviso, the following proviso shall be substituted, namely—
“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 written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”;”
In the case of Desh Raj v. Balkishan, (2020) 2 SCC 708, the Supreme Court dealt with this question – whether the amendment as above to Order 8 Rule 1 of CPC would be applicable even to a non-commercial suit?
The Supreme Court replied in the negative, and held that post coming into force of the aforesaid Commercial Courts Act, there are two regimes of civil procedure. Whereas commercial disputes [as defined under Section 2(c) of the Commercial Courts Act, 2015] are governed by CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC.
The Supreme Court clarified that as regards the timeline for filing of written statement in a non-commercial dispute, its observations in a catena of decisions (such as in the aforesaid Atcom Technologies Ltd. case and Salem Advocate Bar Assn. case) hold the field. Therefore, it was held that the unamended Order 8 Rule 1 CPC continues to be directory for the non-commercial suits and does not do away with the inherent discretion of courts to condone certain delays.
This means that even after the Commercial Courts Act came into force, the court still has the power to condone delay in filing of written statement in a non-commercial suit beyond the maximum period of 90 days, though, of course, it can be done only in exceptional circumstances and not as a routine, as held in the aforesaid Salem Advocate Bar Assn. case.
