Asked July 15, 2016

condone delay

  • 1 Answer

If the defendant has filed a belated written statement without any justified reason for delay and it has also been accepted by the Court. But the Petitioner has issued a notice to the Court to transfer the statement as according to the Rule 1 of Chapter VIII of Cpc a reason must be given. So now as defendant we fear that our statement can be transferred as per the notice of Petitioner. Any solution?

Answer 1

It has been held in a land mark judgement of Supreme Court(1) that Order VIII, Rule 1 after Amendment by Act 46 of 1999 providing that defendant shall within 30 days from date of service of summons on him, present written statement of his defence, Court can extend time for filing written statement up to 90 days. The Court has power or jurisdiction to extend period beyond 90 days. Provision providing for maximum period of 90 days is not mandatory but only directory.

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' be 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 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 hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII, Rule 1.

In construing this provision, support can also be had from Order VIII, 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 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 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 VIII, 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 power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII, Rule 1. There is no restriction in Order VIII, 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 VIII, Rule 1 providing for upper limit of 90 days to file written statement is directory.

However, 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 VIII, Rule 1. Further, in your present case, either to allow or reject the said reply petition after the passage of stipulated period of time without according or recording in writing the reasons for such conduct may not be compulsory and it is totally on the discretion of the court as stated in the above case to either record any such reasons or simply allow such petition. Although in your case to be on a safer side though I would suggest you to be ready with any suitable reason for the said delay as the court in pursuance of such application by the petitioners may ask you to state the reasons thereof for filing a delayed response.

Case citation: 1.Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), AIR 2005 SC 3353.  

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