By Nihit Nagpal and Devika Mehra
Order VIII Rule 1 of CPC provides procedural provision in regard to the Written Statement, according to which such shall be filed by Defendant within thirty days. In case he fails to do so, the time period for submitting the same can be extended up to 90 days from the date of service of summons, for which the reason of the extension must be recorded by the respective court in writing.
Thus, Defendant must file the Written Statement within the time period of not more than 120 days from the date of service of the summons, and thereafter upon the expiration of this period, the defendant will forfeit his right to file the written statement and the Court shall not allow the same to be taken on record.
In the case of Bharat Kalra v. Raj Kishan Chabra1, an injunction suit was filed by the Plaintiff wherein the High Court will holding the Trial Court’s order to refuse to condone the delay of 193 days to file the Written Statement stated that there is “no plausible explanation and coherent reason” that explains such delay caused in filing of the Written Statement.
Being aggrieved by the order of High Court, an appeal was filed by the Defendant in the Hon’ble Supreme Court of India.
Observation of the Hon’ble Court and previous references
While referring the judgement of Kailash v. Nankhu & Ors2 , the division bench of Justice Hemant Gupta and V. Ramasubramanian on May 09, 2022 passed an order observing that the suit filed by the Plaintiff is not the one that is regulated by the Commercial Court Act 2015 and therefore the time period for filing the Written Statement under Order VIII Rule 1, CPC is not mandatory.
In case of Kailash v. Nankhu3 it was held by the Hon’ble Court that the object behind the time period for filing the written statement under Order VIII, Rule 1 of CPC is to make the procedure and hearing of the matter in a time efficient manner and not to absolutely dismiss it. That is, though the language of the proviso to the respective provision depicts the negative connotation, it does not provides any penal punishment for its non-compliance. The nature of the provision is directory and not mandatory. Thus, the power of the court to provide an extension to the scheduled time for filing the statement is not completely taken away.
The prayer for such extension by the Defendant should not be granted or treated as a matter of merely asking but more so than for any extension beyond the period of 90 days may be allowed by way of exception by the court only if the reasons provided for the same finds to be satisfactory by the respective Court. Such extension shall be granted only in the circumstantial which are utterly exceptional in nature, or wherein the occasions reasoned by the Defendant was beyond his control or if not granted grave injustice would happen to the Defendant.
Previously, in case of Salem Advocate Bar Association, Tamil Nadu v. Union of India4, the court observed that there is no limitation that after the expiration of prescribed time period, further time cannot be granted under Order VIII Rule 1. It was stated that the said provision clearly provides an upper limit and is directory in nature. However, it should not be mistaken for a practice in routine. The time period shall only be extended in the exceptional circumstances. In SCG Contracts Indian Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd.5 , the apex court observed that the proviso to OVIII R1 is compulsorily applied in the commercial suits and no written statement must be taken on record after the expiration of 120 days from the date of service of the summons of the suits.
Also, the same observation has been reiterated in case of Desh Raj v. Balkishan6 , wherein clarification was again provided that the time schedule for filing Written Statement under the aforesaid provision is only applicable in commercial suit whereas such is not in non- commercial suit, wherein it shall only act as a directory provision. Again, the same view point established in case of Shoraj Singh v. Charan Singh.7
In light of the above judgements and the latest order passed by the Supreme Court in case of Bharat Kalra v. Raj Kishan Chabra 8. it is clear that the time schedule provided under Order VIII Rule 1 of CPC is a Written Statement shall be filed within the period of 120 days from the day of service of summons is only mandatorily applied to the commercial suits and not in non-commercials suit, in latter it act as a directory provision.
While observing the same in said order, the court further viewed that such a delay in filing the written statement can be subjected to the compensation with costs however denying the benefit of filing the same as per the literal interpretation of the concerned provision was considered to be unreasonable.
Thereby, providing that the intention of the provision is to provide avoid delay in the commencement of a matter that further affects the principles of speedy justice ultimately affecting the principles of rule of law.
1 Bharat Kalra v. Raj Kishan Chabra, Civil Appeal No. 3788 of 2022 (SLP (C) No. 63 of 2022)
2 (2005) 4 SCC 480
4 Salem Advocate Bar Association, Tamil Nadu v. Union of India, Writ Petition (Civil) 496 of 2002.
5 SCG Contracts Indian Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., Civil Appeal No. 1638 of 2019
6 Desh Raj v. Balkishan, 2020 SCC Online SC 49
7 Shoraj Singh v. Charan Singh, Civil Appeal No. 6304 of 2021
8 Supra note 1