Y. Srinivasa Rao,
M.A (English Lit.)., B.Ed., LL.M., Research Scholar in Torts., Principal Senior Civil Judge, Tirupati. ——
TABLE OF CONTENTS:—
- Situation before 1976
- Whether it is mandatory or mere directory and indicate
- Response of the Judiciary
- How to know whether a particular provision is mandatory or directory ?
- Interpretation of the words ‘shall’ – ‘may’
- Non-filing of the written statement by the defendant – Effect of
- Whether period time can be extended more than 90 to file a written statement
The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. – Kailash Versus Nanhku – 2005 (4) SCC 480.
All the rules of procedure are the handmaid of justice. The principle of law is that In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. The maxim ‘actus curiae neminem gravabit’ i.e. an act of Court shall prejudice no man is an important one. The maxim “is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law”. An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be rectified. It is settled principle that the mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer.
Order 8 Rule 1 CPC is an aid to reduce pendency of civil cases. As to period of limitation to file written statement is concerned, since 1909, there were several changes in the procedure. In this Article, the author concentrates to discuss the issues relating filing of written statement under purview of scope of Order 8 Rule I of the Civil Procedure Code,1908 (hereafter referred to CPC). In this study, it is also discussed with relevant case law the interesting questions such as whether the outer line prescribed in the Proviso of Order 8 Rule 1 for authorizing Courts to extend time gives negative approach; the outer limit of period of 90 days is directory or mandatory; how to interpret the words ‘shall’ – ‘may’ ; and the objectives and reasons of relevant amendments as to the time limit to file written statement etc.
Situation before 1976 :—
Earlier i.e., before the Code of Civil Procedure (Amendment) Act, 1976, there was an option to defendant to file written statement in a civil suit. In those days, the defendant had an option to file written statement before Court either at the time of , or at any time before, the first hearing of the suit. The object of this provision to quick disposal of cases.
The CPC (Amendment) Act, 2002
The discretion of Court was taken away to extend time limit through the Code of Civil Procedure (Amendment) Act, 2002, this Amendment of 2002 says as infra:
Written statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.
While substantially reducing, by prescribing the limit of thirty days, the discretion of he courts, the legislature, being conscious that in some cases delay in filing of a written statement could indeed be occasioned by genuine causes, inserted a new proviso to the said Rule which reads as under:
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.
Because of this newly inserted Proviso, some confusion was arisen. Order 8 Rule 1 CPC provides time limit of thirty days from the date of service of summons to file written statement, as it is a rule. But, the proviso provides time
limit of 90 days, as it is an exception. If the court satisfies to extend time limit more than 30 days , it has a duty to record reasons for doing so. Of course, in exceptional circumstances, the court can extend the time limit to file written statement upto 90 days. Now, the confusion is whether this provision is mandatory or directory; whether the court can extent time limit more than 90 days ; whether the court has power to extent time limit more than 90 days under section 151 CPC using its inherent power.
Whether it is mandatory or mere directory and indicate:-
To answer this complicated question relating to Order VIII Rule 1 CPC, whether it is mandatory or directory, a detailed study is needed on the provisions of sections 148 and 151 CPC, and Section 5 of Indian Limitation Act,1963, including the ratio-laid down in landmark ruling of Salem Advocate Bar Assn. v. Union of India.
Inherent Powers under Section 151 of CPC: The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in s. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code”.
Civil courts have no inherent power to issue injunctions in case not covered by O. 39, rr. 1 and 2 Code of Civil Procedure. The power of civil courts, other than Chartered High Courts, to issue injunctions must be found within the
terms of s. 94 and O. 39, rr. 1 and 2. Where an express provision is made to meet a particular situation the Code must be observed and departure therefrom is not permissible. Where the Code deals expressly with a particular matter the provision should normally be regarded as exhaustive. Expressed views of the some of the High Courts are as follows:
- If the Code of Civil Procedure contains express provision, resort to the inherent power of Court under section 151 of CPC is impermissible.
- Order VIII Rule 1 CPC is an express provision and so exercise of jurisdiction under section 151 of CPC is not lawful as was held in Iridium Indian Telecom Ltd’s case.
- This question needs further study in the light of dicta in Salem Advocate Bar Assn’s case: and Kailash Vs. Nanhku and Ors, (2005) 4 SCC 480 which will be discussed in this Article.
Response of the Judiciary :—
Confusion about Order 8 Rule 1: Amendment of 2002 leads to confusion among the sub-ordinate courts including High Courts.
— In the case of S.Randhir Singh Chandhok v. Atma Ram Bansal, the Court accepted the balated written statement on payment of Costs of Rs. 25,000/-;
—- In Aditya Hotels’case, (2007) 14 SCC 4, the Apex Court held that the extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose:
(i) to deter the defendant from seeking any extension of time just for the asking, and
(ii) to compensate the plaintiff for the delay and inconvenience caused to him.”
—- In the case of Mohd. Yusuf, (2009) 3 SCC p. 513, Supreme Court refused to allow the acceptance of the belated written statement, without imposing any costs;The provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be directory in nature by the Apex Court in Kailash Vs. Nanhku and Ors, (2005) 4 SCC 480 ; —-The question for consideration was whether the State Consumer Disputes Redressal Commission could grant time to the respondent to file reply beyond total period of 45 days in view of Section 13 (2) of the Consumer Protection Act, 1986. It was held that the intention to provide time frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was noticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case.
How to know whether a particular provision is mandatory or directory ?
The Hon’ble Constitution Bench of the Supreme Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. As was held in Sangram Singh’s case It is procedure, something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to trip people up. There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.
Interpretation of the words ‘shall’ – ‘may’ :—
There are several decisions as to interpretations of the words ‘shall’ – ‘may’ and in this present context, the author intends to take the aid of findings of the Hon’ble Supreme Court in the case of Salem Advocate Bar Association,Tamil Nadu.
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’ is 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 rule in question has to advance the cause of justice and not to defeat it. 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 handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 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. 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 VIII Rule 1.
Non-filing of the written statement by the defendant – Effect of :—
“Non-filing of the written statement by the defendant would not amount to admission of all the facts pleaded in the plaint by the plaintiff. In Siai Sinha’s case also, it was held that the suit not having been fixed for ex parte hearing, the defendant had a right to take part in the hearing of the suit even in the absence of a written statement. It is pertinent to note that the decision in the case of Binda Prasad v. United Bank of India (AIR 1961 Pat 152) where the Hon’ble Judge had observed that if a party does not file written statement he is taken to admit the allegations in the plaint, was not considered in the cases of
Smt. Ramsurat Devi’s case (supra) , Siai Sinha’s case (supra).
There is another decision on this aspect. In Govind Ram Agarwala’s case, it was held that where a defendant had failed to file a written statement, when not required by court, the suit should be posted for hearing and not for ex parte hearing and the defendant cannot be debarred from taking part in the hearing of the suit. There are some other decisions of other High Courts, which may usefully be referred to. In Union Of India vs Bhagwan Dass, it was observed that non-filing of the written statement does not amount to admission of the allegations contained in the plaint, as Rule 5 of Order VIII does not apply to such a case.
There are certain decisions which appear to be contrary to the views expressed above, however, those were old cases. Those are Vinayak Shreedhar Kulkarni vs Chintaman Vaman Kulkarni, (1938) 40 BOMLR 972; In Shriram Surajmal vs Shriram Jhunjhunwalla, (1936) 38 BOMLR 577, it was held that where there is no pleading, there is no denial or non-admission on defendant’s part and he is bound by all the allegations in the plaint. In another case Timber Pvt. Ltd. Vs. Chandu Lal, AIR 1964 J & K 58, it was held that “the court had ample power under Order VIII, Rule 10 of the Civil P. C. to pronounce judgment against the defendant when he failed to present a written statement in spite of the instructions of the court, or pass any other order which the court thought fit in relation to the suit.”
On thorough consideration of these legal principles, it will thus appear that in view of Rule 1 of Order VIII (as it stood prior to amendment in 1976) it was held that the defendant was not bound to file a written statement unless specially required by the court to do so; that he had a right to file a written statement at or before the first hearing; that the first hearing, is the date fixed for framing of issues where summons issued is for framing of issues or the date of final hearing where the summons issued is for that purpose; that according to some decisions the provisions of Rule 10 of Order VIII do not apply to a case where the court does not require the defendant to file a written statement under the provisions of Rule 9, whereas according to other decisions Rule 10 applies even to a case where there is a failure to file a written statement when required by the court to do so under Rule 1 as well; that if the defendant failed to file a written statement when not required by the court to do so, his right to file the written statement could not be taken away before the date of first hearing; that in cases where no written statement is filed, when not required by the court to do so, the defendant has a right to appear and participate in the trial of the suit even in the absence of a written statement, though his participation may be to a limited extent. There is a conflict of decisions on the point as to whether in the absence of a written statement the defendant is supposed to be bound by all the facts pleaded by the plaintiff in his plaint. In most of the decisions referred to above it was also held that if the defendant has not filed the written statement on his own at or before the first hearing the suit should be fixed for hearing and not for ex parte hearing.
Whether period time can be extended more than 90 to file a written statement :—
To answer this question, it is important to refer to the first decision of Hon’ble Apex Court on this point in Kailash v. Nanhku , (2005) 4 SCC 480. In this decision, Supreme Court held as follows:
”Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended.”
The Apex Court further held that costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.
As was held in Kailash Vs. Nanhku’s case (supra) and Salem Advocates Assn’case (supra), it is clearly known that the provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be directory in nature. Now, a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice.