Manveer Singh And Anr vs Kamla Sharma And Ors

Dhiraj Singh Thakur, J

This is a petition under Article 227 of the Constitution of India, challenging the order dated 24.03.2014, passed by the learned Munsiff, Jammu (hereinafter referred to as the "Court below"), by virtue of which, the Court below permitted the respondent Nos. 1 to 4 and 8 to file their written statement beyond the period of 90 days.

Learned counsel for the petitioners herein urged that the Court below had no discretion to permit the defendants to file their written statement beyond the maximum period of 90 days prescribed under Order VIII Rule 1 of the Code of Civil Procedure (hereinafter referred to as the "CPC").

It was further urged that no reasons had been given by the Court below as to why the Court was allowing the filing of the written statement beyond the period of 30 days envisaged under Order VIII Rule 1 of the CPC, from the date of service of the summons.

Order VIII Rule 1 of the CPC reads as under:-

"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."

Heard learned counsel for the petitioners.

On the first blush, when the aforementioned provision is seen, one may presume that the Court below has no power to permit the defendants to file the written statement beyond the maximum period of 90 days from the date of service of the summons. However, Order VIII Rule 1 of the CPC cannot be read in isolation and has to be harmoniously construed with Rule 10 of Order VIII of the CPC, which envisages that where any party from whom a written statement is required under Rule 1 or Rule 9 of Order VIII of the CPC fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgments against him, or make such order relating to the suit as it thinks fits and on the pronouncement of such judgment, a decree shall be drawn up. This issue was also considered by the Hon'ble Supreme Court in the case titled, "Salem Advocate Bar Association Tamil Nadu Vs. Union of India, reported in 2005(5) Supreme 236", in which it was held that:-

"........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."

Keeping in view the aforementioned provisions of law and the ratio of the judgment of the Hon'ble Supreme Court in Salem Bar Association's case (supra), it can be seen that while the Court does have the power to permit a party to file his written statement beyond the upper limit of 90 days, the discretion so vested in the Court to extend the time has not to be used routinely so as to nullify the period fixed by Order VIII Rule 1 of the CPC. Moreover, the exercise of discretion must be accompanied with an order reflecting the application of mind on behalf of the Court below, based upon sound reasoning.

On a perusal of the order impugned, it can be seen that while the Court has permitted the filing of the written statement beyond the period of 90 days, the same was done simply on the basis of the judgments of the Hon'ble Supreme Court without satisfying itself or giving any reasons as to why the discretion vested in it was exercised. The order dated 24.03.2014, permitting the parties to file the written statement ought to have been a reasoned order, which is conspicuously absent in the present case.

For the reasons mentioned above, the petition is allowed and the order impugned is set aside. The matter is remanded to the Court below for passing orders afresh. In case, the time has to be extended, then reasons be also given.

Learned counsel for the petitioners, at the very outset, had urged that there was no application filed, giving reasons for the delay in filing the written statement. This Court makes it clear that the defendants would be at liberty to file an appropriate application/affidavit, explaining the reasons behind the delay in filing the written statement within the time prescribed.

Writ petition is, accordingly, disposed of.

Parties to appear before the Court below on 21.10.2021.