CASE 1

A.V. Purushotam vs N.K. Nagaraj, AIR 2003 Kant 417

FACTS
In this case, the petitioner was a tenant of a premise owned by the respondent. The respondent, in
this case filed a suit before the learned Chief Judge, Court of Small causes, Bangalore for
ejectment of the petitioner. After a summons was served on 28 October 2002, the petitioner (who
is the respondent in the case filed to the Chief Judge, Court of Small causes, Bangalore) appeared
before the court and requested time to file a written statement. An extension was given and he
was asked to file the written statement on 18 January 2003. On that day, another extension of
time was sought by the petitioner. This was, however, rejected by the court. The court. However,
also did not pass a judgement or decree as said under the Order 8 Rule 10 of the Code of Civil
Procedure for not filing a written statement. The court further, adjourned the case for evidence
to 17 February 2002. On this day, the petitioner filed his written statement along with an
application under Section 151 of Code of Civil Procedure requesting for a permission to file a
written statement. This was also accompanied by an affidavit in which he mentioned the reason
for the delay in filing the written statement. This application was, however, rejected by the court,
saying that it has no power to grant time for filing written statement after the expiry of 90 days
period from the date of service of summons. This order of the court was challenged in the High
Court in this writ petition.
ISSUE
Whether in a given case the Court is precluded from receiving the written statement filed beyond
the period stipulated?
REASONING
To answer this question, the court looked in to several provisions of the Code of Civil Procedure
like the Order 5 Rule 1 (Which talks about summons), Order 8 Rule 1 (Which talks about the
written statement and the maximum time period beyond which such a written statement cannot
be accepted by the court), Order 8 Rule 5(2) (Which says that, if the defendant has not filed the
pleading, then the court can pronounce the judgment based on facts of the plaint), Order 8 Rule 9
(Which talks about subsequent pleadings) and Order 8 Rule 10 ( Which talks about the procedure
to be followed if the defendant fails to present the written statement. Further, the court also
touches upon Section 148 of the Code of Civil Procedure.
The court from analyzing these provisions, said that the legislature has indented to provide 30
days to file the written statement and subsequently if there is a request for extension, the court
can extend the date for another 60 days and for this the court needs to record the reason in
writing. The court, however, says that, the Code of Civil Procedure does not talk about what
happens if the defendant fails to file the pleadings. Does he lose the right to file the written
statement? Or Can the court entertain the written statement beyond the time of 90 days?
To answer this question, the court relied on the case of, Sharif-Ud-Din vs Abdul Gani Lone, 1980
AIR 303 and the court said that there is not expressly stated anywhere about the penal
consequence of not filing a written statement on or before the stipulated time. The court also
considered the scheme of these provisions and said that the court never intended to impose any
penalty, but only wanted to expediate the disposal of civil cases.
Further, the court said that no problem arises when the court has pronounced a judgement for
non-filing of the written statement, but problem arises when the court as adjourned the case to
another date without pronouncing the judgment against the defendant. To this the court said that
the amended law puts a restriction on the court to only extend the time by another 60 days after
the first 30 days, however, the defendant is not barred from requesting the court for a permission
to file the written statement. “Even in cases where the written statement is not filed by the
defendant within 30 days or within the extended period of 60 days, under Order 8 Rule 9, the
Court has been empowered to call upon the defendant to file the written statement at any time
subject to the condition that if the Court calls upon the defendant to file the written statement, it
shall fix time of not more than 30 days for presenting the same.” From this, the court opinioned
that, even if the stipulated time is passed, the court still has power to call upon the defendant to
file the written statement, if the judgement hasn’t been pronounced yet.
HELD
The court below has made an error in saying that it has no jurisdiction to receive the written
statement.
CASE 2
S.G. Narayana Swamy vs Ramakrishnappa, ILR 2003 KAR 2205
FACTS
The facts of the case are as follows, the petitioner in this case is the defendant in the original suit
filed before the trial court. The respondent in the present suit had filed a suit for permanent
injunction against the petitioner (called defendant from hereon). The defendant failed to file the
written statement within the prescribed time limit of 90 days. The defendant, then, sought for
condonation for the delay in filing the written statement. The trial court, however, dismissed this
application saying that the written statement was filed beyond the stipulated time of ninety days.
This, order of the trial court dismissing the application was challenged before the High Court of
Karnataka.
ISSUE
Whether the defendant has lost the right to file the written statement?
REASONING
The court looked in to several provisions of the Code of Civil Procedure like Order 8 Rule 1
(Which talks about the written statement and the maximum time period beyond which such a
written statement cannot be accepted by the court), Order 8 Rule 9 (Which talks about
subsequent pleadings) and Order 8 Rule 10 (Which talks about the procedure to be followed if
the defendant fails to present the written statement). Analyzing the Rule 9 and Rule 10, the court
said that the failure of the defendant to file the written statement within the prescribed limit of 90
days does not mean there can be a striking of the defense as said under, Order 11 Rule 21 of
Code of Civil Procedure. Even though, the written statement is not filed, the defendant still has
an opportunity to cross examine the witness brought in by the plaintiff. In this case, the recording
of evidence has not been done. The defendant has approached the court before this. The court,
further added that, when the courts are rigidly applying the provision like Order 8 Rule 1, this
will only result in increasing number of offshoot cases as the current one. The limit of 90 days is
only kept for expediting the trials and disposal of suits. It also said that, if such delay is causing
any inconvenience to the other party, then it can be compensated by awarding realistic costs so
as to discourage the abuse or misuse of this provision.
HELD
The defendant has not listed the right to file the written statement. The delay in filing the same is,
therefore condoned.
CASE 3
Shailaja A. Sawant (Dr.) vs Sayajirao Ganpatrao Patil, 2004 (5) BomCR 548
FACTS
In this case, there is a batch of writ petitions before the court which challenges either allowing
the defendant to file written statement after the period prescribed under Order 8 Rule 1 of CPC
or disallowing the defendant from doing so on the ground that the written statement was not filed
within the prescribed period. As there is one batch of petition filed by the plaintiff and there is
another by the defendant in the suit before the trial court.
The facts related to the first batch is as follows. Here, the plaintiffs filed a special civil suit
against the defendants and a summons was issued by the trial court on this basis. The first
summons was issued on 23 September 2002 and was reissued on 30 October, as the previous
summons was allegedly refused by the defendant. Later, on 7 November 2002, the summons was
duly served upon the defendant. The court then decided to proceed the suit ex parte as the
defendant failed to appear before the court until 5 December 2002. The defendant, however,
appeared before the court through his advocate on 9 January 2003, requesting for time to file a
written statement. No written statement or an application for setting aside the “No W.S” order
was filed along with this application. On this application, the court allowed the defendant to file
the writ petition subject to the cost of Rs. 500/-
In the second batch, the suit was instituted on 28 September 2003. The summons was issued on 8
October 2003 and was admittedly served on the defendants. On 21 March 2002, the court passed
“No Say” order on the interim application and “No W.S” in the suit. On an application 21 March
2002, the advocate for the petitioner requested to set aside the “No Say” order, but not the “No
W.S” Order. It was on 1 July 2002, that the amendment to the Order 8 Rule 1 that came in to
force, which imposed a limit for filing the Written Statement. The court set aside the “No Say”
order on 19 July 2002 with a cost of Rs 50. On 23 June 2002, an application to set aside the “No
W.S” order was submitted by the party. This was dismissed by the court on the basis that, it was
not filed within 90 days from the date when the amendment to Order 8 Rule 1 came in to force.
ISSUE
Whether after the 2002 amendment to Order 8, Rule 1 of the Civil Procedure Code upon expiry
of a period of 90 days from the service of the writ of summons upon the defendant, the defendant
is wholly and absolutely barred from filing his written statement.
PETITIONER’S CONTENTIONS
The learned counsel for the petitioner contented that, according to the new amendment to Order
8 Rule 1, the filing of written statement within 90 days of service of summons in mandatory and
not declaratory. Hence, the court cannot permit the defendant to file the written statement after
the expiry of the stipulated ninety days.
“For extending the period for filing written statement beyond the period prescribed under Order
8, Rule 1, recourse cannot be taken to the provisions of Sections 148 and 151 of the Civil
Procedure Code since inherent powers, under that provision, cannot be taken recourse to, to
override express provisions.”
RESPONDENT – DEFENDANT’S CONTENTION
The new amendment is not to penalize the defendant who failed to file the written statement
before the stipulated time of 90 days or to take away the discretion that was vested in the court
that it had before the amendment. The procedural rules are not generally mandatory in nature.
The laws of procedure are based on the principle of natural justice and hence, without a written
statement being filed, there cannot be any procedure taking place that will affect the lives and
properties of the litigants.
PETITIONER- DEFENDENT'S CONTENTION
The Order 8 Rule 9 empowers the court to use its discretion to allow the defendants to file the
written statement even if it failed to do it before 30 days. The Order 8 Rule 10, allows the court
to extend the time of filing of written statement up to 90 days. The court is not divested of the
power to extend the time to file a written statement. The counsel for the Petitioner- Defendant
also added that, the reason that the parliament reintroduced the Rule 10 shows that it did not
intend the court to pronounce a judgement as soon as the defendant failed to file the written
statement within ninety days.
REASONING
The Code of Civil Procedure is something that is designed to facilitate justice and further its
ends. It is not something that is enacted to penalize or punish the parties. It is not something
made to trip people up. All the law of procedures in our country is grounded on principle of
natural justice and hence there cannot be a possibility of a party going unheard. There cannot be
any decisions behind their backs. The interpretation of a statute or provision must depend on the
text and the context.
The court analyzed the provisions of Order 8 Rule 1, keeping in mind, the several judgements by
the Supreme Court as mentioned by the counsels to the parties. The court, analyzing it, said that
the provision calls to avoid the delay as far as possible, but not at the cost of violating any
principles of natural justice. The court, then, analyzed Order 8 Rule 9 and Order 8 Rule 10,
which, according to the High Court, vests wide discretion on the trial court. The Order 8 Rule 9
gives the court to require at any time, a “written statement” or “Additional Written statement”
from “any of the parties” and fix a time not more than 30 days of presenting the same. Another
reason that the court finds to not strictly interpret the Order 8 Rule 1 is that the parliament has
decided to reintroduces the Order 8 Rule 10 that was deleted by it in the amendment of 1999.
Hence, it can be said that, what is said in the provision Order 1 Rule 8 is not mandatory. The
court also added that, under Order 8 Rule 10, the court has two options if there is a failure by the
defendant to file a written statement, one, it can pronounce an order against him or, two, “ make
such other order in relation to the suit as it thinks fit depending upon whether the suit was for
the final disposal or for the settlement of the issues only.”. The court has discretion to
provide the defendant with more time to file the written statement. However, this does not
mean that the court must ignore the stipulated time and grant extension as it thinks fit. It has
to be done by keeping in mind the Statement of Object and Reasons of the recent
amendment.
HELD
All the writ petitions are set aside and the concerned trial courts must reconsider the
applications to pass appropriate orders in the applications filed by the defendents.