DELAY IN FILING OF THE WRITTEN STATEMENT: AN ANALYSIS OF ORDER VIII, RULE 1 OF CPC Amit Sachdeva 1 INTRODUCTION Delay in the disposal of cases has been a cause of serious concern for the judiciary and the 2 legislature alike. Amongst the several endeavours made on this front to cut down the pendency, the story of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (―the Code‖) is peculiarly illustrious of this concern. Rule 1 of Order VIII of the Code, which prescribes the limitation period for filing of a written statement by a defendant in a suit, has undergone several changes since the 3 entry into force of the Code in 1909. The said provision has travelled from being a provision expressly permitting judicial discretion to extend time to one mandating the defendant to file the written statement with a stipulated time period with a proviso authorizing extension of time with a negatively-prescribed outer limit. This paper endeavours to analyze whether, with all the many amendments, the intended object has been attained. The said rule, as it existed before the coming into force of Code of Civil Procedure (Amendment) Act, 1976 (―the 1976 Amendment‖), read as follows: ―The defendant may, and if so required by the court, shall at or before the first hearing or within such time as the court may permit, present a written statement of his defence.‖ Before the 1976 Amendment, in terms of Rule 1, a defendant had the option of filing the written statement either at the time of, or at any time before, the first hearing of the suit. The said rule further expressly granted the courts the discretion to permit the filing of the written statement by the defendant within a time that it may prescribe in this behalf. Under such circumstances, i.e. where the court had permitted the defendant to file the written statement within a prescribed period, it was mandatory for the defendant to file the written statement within such prescribed time period. It may, however, be noted that the discretion so conferred upon the court to grant time for filing of the written statement after the first hearing of the suit, was unlimited and unguided in the sense that the rule did not provide for any specific outer time limit within which the court must require the defendant to file a belated written statement. There was thus no reference point, whatsoever, in terms of any prescribed time limit within which the belated written statement had to be filed. Of course, the general requirement of some degree of reasonableness can, without doubt, be read into the provision on the ground that the said rule seeks to confer judicial discretion upon the court. It is, however, difficult to attribute any further degree of circumspection or limitation on the power of the court under the said rule, as it existed before the 1976 Amendment. THE 1976 AMENDMENT As a result of the 1976 Amendment, Rule 1 of Order VIII of the Code came to read as under: ―The defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence‖. 1 Associate, Vaish Associates Advocates; LL.M., London School of Economics; Diploma in Private International Law, The Hague Academy of International Law; PGDSBL (Gold Medalist); LL.B. (Hons.) (Gold Medalist). He may be contacted at amitsachdeva@vaishlaw.com 2 See for the latest manifestation of this concern, the Law Commission of India 221st Report on ―Need for Speedy Justice – Some Suggestions― (April 2009), available at www.lawcommissionofindia.nic.in/reports/report221.pdf which study was taken up by the Law Commission suo motu. 3 The Code entered into force from 1st day of January 1909. See, Section 1(2) of the Code. 1 As is clear from a bare reading, the 1976 Amendment, in essence, sought to delete the words ―may, and if so required by the court‖ and allow only ―shall‖ to continue on the statute book. The legislative intention in amending the provisions of the rule seems quiet clear, i.e. to make the provisions of that rule mandatory and not merely directory as was the position before the said amendment. It may be pertinent to point out here that the rule, as it existed before the 1976 Amendment, indeed used the word ―may‖ at the following two places: (a) the defendant may, … , present a written statement of his defence; 4 (b) within such time as the court may permit. As a result of the usage of word ―may‖ twice, the provision conferred discretion at each of the aforesaid two levels. The use of ―may‖ in (a) above indicated that the filing of the written statement was, as would be obvious, a matter of choice for the defendant, i.e. the defendant could decide for himself whether to or not to file the written statement, unless required by the court to do so, in which case, the defendant had no such choice. The use of the word ―may‖ for the second time in (b) above conferred discretion on the court to determine the time period within which the defendant must file the written statement. Looked at from this perspective, it would be obvious that the delay in the disposal of a suit would, if at all, be occasioned only on account of the use of the word ―may‖ in (b) since the courts were thus given a free hand to determine the time within which the written statement would have to be filed. Furthermore, there was nothing in rule 1 as it existed before the 1976 Amendment which would debar a court from exercising the said discretion (of determining the time period) only once. The absence of such a bar on the court’s discretion, in theory, allowed the courts, and was, in practice, ruthlessly exploited by the appearing advocates, to extend the time for filing the written statement infinitely. It was, thus, the use of the word ―may‖ in the second part (i.e. (b) above) that led to delay in disposal of suits. Quite the contrary, leaving a defendant with the discretion of filing or not filing a written statement can only fasten the disposal of cases, at least in cases where the defendant exercised the discretion not to file a written statement. The Statement of Reasons and Objects to the 1976 Amendment cited the need for quick disposal of suits as the primary driving force. Surprisingly still, the 1976 Amendment caused the deletion of the words ―may, and if so required‖ such that it became imperative for a defendant in all cases to file a written statement, without bringing about any modification of the second part of the rule, which, as highlighted above, was a cause of delay in disposal. THE 2002 AMENDMENT It took the legislature a little over a quarter of a century to realize that it had amended a wrong 5 provision. The error was sought to be set right by the Code of Civil Procedure (Amendment) Act, 2002 (―2002 Amendment‖), which, substantially taking away from the courts the discretion to extend time for filing of the written statement, reads as follows: ―The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.‖ 4 See, Bindeshwari Kamkar v. Radha AIR 1979 Pat 78, where the Patna High Court held that the use of the word ―may‖ in sub-rule (1) indicates that the court may or may not grant such time. The Courts have however generally taken the view that where refusal to extend time would lead to injustice, the time to file written statement would be extended. See, for example, Meher Chand v. Suraj Bhan AIR 1971 P & H 435. 5 It may, however, be mentioned here that by the Code of Civil Procedure (Amendment) Act, 1999, the text of Order VIII, Rule 1 was sought to be substituted in the aforesaid manner. The said amendment could, however, due to resistance from the members of the Bar, not be enforced. The text of the provision as amended by the 1999 Amendment in the present form has been introduced by the 2002 Amendment with effect from 01.07.2002. See, the comments of the then Minister of Law, Justice & Company Affairs, Mr Arun Jaitley, during the debate on 08.05.2002 in the Rajya Sabha at the introduction of the Code of Civil Procedure (Amendment) Bill,2000, available at http://164.100.24.167/rsdebate/deb_ndx/195/08052002/2to3.htm. 2 While substantially reducing, by prescribing the limit of thirty days, the discretion of the 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.‖ On a careful scrutiny of the present Rule 1 (together with the newly inserted proviso), it appears that: (a) The filing of a written statement by the defendant is mandatory and he has no choice, as was the case before the 1976 Amendment, to not file his written statement; (b) The maximum period within which the defendant is entitled to, as of right, file his written statement has come to be prescribed as thirty (30) days from the date of service of summons. This prescription, in our view, is far more objective and foreseeable than the criterion of ―the first hearing‖; (c) Filing the written statement within the aforesaid thirty days is the rule and the extension of time beyond the said thirty days is an exception; (d) To take care of the exceptional circumstances of a defendant, the Courts have been given the discretion/power to extend the aforesaid time period for filing of the written statement; (e) Where a court wishes to extend time beyond the prescribed period of thirty days, the court must record its reasons for doing so; and, (f) The said discretion/power of the court to extend such time extends to no more than ninety (90) days. The aforementioned inferences and deductions are buttressed by the Statement of Objects and Reasons to the 2002 Amendment, which also points in the same direction. Para 3 of the said Statement states that ―[t]he proposed amendments seek to provide that … (c) a defendant is to file written statement within thirty days from the date of service of summons but such date can be extended up to ninety days by the Court for reasons to be recorded in writing‖. It is universally accepted that bizarre circumstances, that subjects find themselves into, are often stranger than can ever occur to the mind of a most vigilant and imaginative legislature. This forms the basis for judicial (and executive) discretion as well as of the vagueness of law. Conscious of this, legislatures world over confer discretion on the courts, giving them often an unsteered control to rule in such uncanny circumstances, leaving the courts to do a balancing act by deciding the degree of permissible deviation from the rule prescribed by the legislature. This degree of deviation is often directly proportional to the degree of exceptionality of the circumstances which a subject is put to. The question, then, is whether the default ―outer limit‖ of ninety days prescribed by the proviso to Rule 1 of Order VIII of the Code is conclusive so that in no case, howsoever exceptional, would a breach of this outer limit be warranted and that in no case, the balancing act of the court would be allowed to incline towards an extension of time, beyond the period of ninety days, for filing the 6 written statement. This takes us to the second part of this paper, in which we endeavour to examine the manner in which the Courts have reacted to the aforesaid limitation on their power to extend time for filing of the written statement. 6 For some comments on the ―unworkability‖ of the time limits imposed by Order VIII Rule 1, see, PM Bakshi, ―Comments on CPC Amendments (1999 and 2000)‖, available at http://www.ficci.com/icanet/quterli/aprjune2002/ica3.html, last visited on 23.06.2009. See also, M Shah Alam, “A Possible Way out of Backlog in [Bangladesh’s] Judiciary‖ The Daily Star (16 April, 2000). 3 RESPONSE OF THE JUDICIARY: CONFUSION, CONSTITUTIONALITY AND (RE)CONCILIATION The 2002 Amendment led to a serious confusion amongst the High Courts. Not all courts seemed to be taking any uniform view. While some courts construed the proviso to Rule 1 of Order VIII of the Code in a strict and mandatory manner, the others construed it liberally holding it to be merely 7 directory and indicative. In justifying the directory nature of the proviso, several other provisions of the Code and allied laws were sought to be pressed into service. Some of such provisions and the arguments connected therewith are briefly discussed here: 1. Section 151 of the Code: The all-pervasive, omnipotent provision, which is the charter of inherent powers of a civil court, can be invoked only in respect of a matter not otherwise expressly dealt with under the Code. Where the Code contains an express provision in respect of a matter, resort to the provisions of Section 151 of the Act is 8 impermissible. In the context of filing of a written statement, the bar under Rule 1 of Order VIII of the Code on accepting a belated written statement would constitute an ―express provision‖ so 9 that assumption/exercise of jurisdiction under Section 151 of the Act would not be lawful. 2. Section 148 of the Code: Section 148 reserves the residual power with the Court to enlarge time in certain cases. The said provision reads as under: ―148. Enlargement of time.— Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this code, the Court may, in its discretion, from time to time, enlarge each period not exceeding thirty days in total, even thought the period originally fixed or granted may have expired.‖ The power to enlarge time has been conferred upon the courts in respect of acts, where the time for doing such acts has been granted or fixed by the ―Court‖. Where the time for doing of an act is prescribed by the ―Code‖ and not by a ―court‖, the provisions of Section 148 of the Act have no application. It may be pertinent to mention here that the reference to ―Code‖ in the said section is in the context of the authorization of the doing of the act and not as a prescription of the time for its doing. 7 See, for example, Sukhdev Singh Gambhir v. Amrit Pal Singh AIR 2003 Del. 280 (Del.); Nachipeddy Ramasawamy v. P. Buchi Reddy AIR 2003 AP 409 (AP); Prasanna Parvathamba v. M.S. Radhakrishna Dixit AIR 2003 Kant 345 (Kant.); A.V. Purushotam v. N.K. Nagaraj AIR 2003 Kant 417 (Kant.) Savitha Gupte v. Smt. Nagartha AIR 2003 Kant 426 (Kant.); A. Sathyapal v. Yasmin Banu Ansari AIR 2004 Kant. 246 (Kant.); Shailaja A. Sawant v. Sayajirao Ganpatrao Patil 2004 (2) Mh LJ 419 (Bom.); Iridium India Telecom Ltd. v. Motorola Inc. 2004(1) Mh LJ 532 (Bom.); Chintaman Sukhdeo v. Shivaji Bhausaheb 2004 (4) Mh LJ 739 (Bom.); Prabhakar Madhavrao Mule v. Bhagwan Mitharam 2004(2) Mh LJ 1058 (Bom.); Sunder Lal Verma v. Ranvir Rana 2005 (1) ARC 174 (All.); Mohinder Singh v. Sardool Singh (2005) 139 PLR 726 (P&H); C. S. Ravishankar v. Smt. Shobha Rani AIR 2005 Kant 123. 8 See, Padam Sen v. State of U.P. AIR 1961 SC 218 and Monohar Lal Chopra v. Rai Bahadur AIR 1962SC 527. 9 See the decision of the Karnataka High Court in Savitha Gupta v. Smt. Nagaratha AIR 2003 Kant 426, where the Court endorsed this view. This was also followed by the Allahabad High Court in Sunder Lal Verma v. Ranvir Rana 2005 (1) ARC 174, where on the request of the defendant, the Court granted time until 04.08.2002 for filing the written statement. The defendant, however, filed the written statement only on 23.01.2003 and moved an application under Section 151 of the Code praying condonation of delay. The Court considered the question whether the provisions of Section 151 of the Act may be resorted to for extension of time for filing the written statement. Answering the issue in negative, the Court held that ―after the amendment of Order VIII Rule 1 [of the Code,] the Court does not have any jurisdiction to extend the time … and this express prohibition relating to the period beyond that 90 days cannot be over-ridden by resort to Section 151 [of the Code].‖ 4 The time of thirty days (extendable to ninety days) for the filing of a written statement is not granted or fixed by a ―Court‖, but is a time period fixed by the ―Code‖ and, 10 consequently, the provisions of Section 148 cannot be resorted to. 3. Section 5 of the Limitation Act, 1963: Section 5 of the Limitation Act, 1963 (―LA 1963‖) confers upon the court the discretion to condone delay. However, such condonation can be granted only in respect of ―an appeal‖ or ―an application‖. Thus, in order to invoke the provisions of Section 5 of the LA 1963, the underlying document must constitute an ―appeal‖ or an ―application‖. Clearly, a written statement of defence filed under the provisions of Order VI and Order VIII of the Code does not answer the description of ―appeal‖ or ―application‖ for the purposes of Section 5 of the LA 1963. The provisions of 11 the said section, therefore, cannot be pressed into service by the defendant. The confusion amongst the courts and the distress amongst lawyers culminated into a challenge to the constitutional validity of the 2002 Amendment before the Supreme Court in Salem 12 Advocate Bar Association v. Union of India (―Salem Advocate Bar I‖) The petitioner however sought to withdraw the writ petition, which was disallowed on the ground that the petition had been filed in public interest. Interestingly, no arguments were advanced on the (un)constitutionality of the amendment. In the first brush, the Court held that the 2002 Amendment was not ―in any way ultra vires the Constitution‖. Detailed submissions were however made to highlight the practical difficulties in implementing the amendment. To ―ensure that the amendments [became] effective and result[ed] in quicker dispensation of justice‖, the Court constituted a Committee with directions to submit a detailed report concerning the 2002 Amendment. Upon receipt of the Report of the Committee constituted pursuant to Salem Advocate Bar I, the matter was considered by another Bench of three judges in Salem Advocate Bar Association v. 13 Union of India. As regards the provisions of Rule 1 of Order VIII, the Court reproduced the Report, in paras 20 and 21, as follows: ―20. 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. … 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. … Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred…. 21. In construing this provision, support can also be had from Order VIII Rule 10, … [where] despite [the] use of the word ―shall‖ [in Rule 1], the court has been given discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provisions of Order 8, 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 the power to allow the defendant 10 The Bombay High Court took a similar view in the case of Iridium Indian Telecom Ltd. Bombay v. Motorola Inc. 2004 (1) Mh. L.J 532, where a Division Bench of the Court, referring to the applicability of Section 148 of the Code to a belated written statement, observed that ―the provisions of Order VIII, Rule 1 are in the nature of self-contained Code insofar as filing of written statement is concerned. It prescribes the outer limit for filing the written statement and hence reliance upon the general power under Section 148 was not permissible.‖ There were, however, no observations regarding difference between time fixed by ―the Code‖ and ―a court‖, as highlighted in the text above. 11 See, the observations of the Allahabad High Court in Sunder Lal Verma v. Ranvir Rana 2005 (1) ARC 174 endorsing the aforesaid view: ―[A] written statement is not an appeal or an application or even a suit and therefore [the] Limitation Act cannot help the Court for condoning the delay.‖ 12 AIR 2003 SC 189, (2003) 1 SCC 49 (B.N. Kirpal, C.J., Y.K. Sabharwal and Arijit Pasayat, JJ.) per Kirpal, CJ. 13 (2005) 6 SCC 344 (YK Sabharwal, DM Dharmadhikari and Tarun Chaterjee, JJ) per Sabharwal, J. 5 to file the written statement even after the expiry of the period of 90 days provided under Order VIII Rule 1. Clearly, therefore, the provision of Order VIII Rule 1 providing for the 14 upper limit of 90 days to file written statement is directory.‖ A question of the nature of the proviso to Rule 1 of Order VIII first arose before the Hon’ble 15 Supreme Court in the case of Kailash v. Nanhku and Ors. In that case, the appellant was served with the summons, requiring his appearance before the Court on 06.04.2004. On the request of the counsel of the appellant on the appointed day, the Court allowed time till 13.05.2004 for filing the written statement. On the said date, the appellant sought further time on the ground that copies of several documents were required to be obtained. The Court adjourned the hearing to 03.07.2004 as between 13.05.2004 to 02.07.2004, the High Court was closed for summer vacations. Towards the end of the summer vacations, i.e. on 22.06.2004, the nephew of the appellant's advocate expired. Although the written statement was drafted during the summer vacations and was kept ready for filing, the same was filed only on 08.07.2004 together with an application for condonation of delay stating the aforesaid reason. In appeal against the refusal of the High Court to accept the written statement on the ground of expiry of the prescribed period of 90 days, the Hon’ble Supreme Court set aside the order of the High Court and accepted the written statement. Since Nankhu’s was the first decision by the Supreme Court on the issue and since this has been 16 cited in almost all subsequent cases, it merits some time and space. The Supreme Court held as under: ―[T]hat ordinarily, the time schedule prescribed by Order VIII Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him [than] he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned 14 Emphasis supplied. For the interchangeability of ―shall‖ and ―may‖, see also, M. V. "Vali Pero" v. Fernandeo Lopez AIR 1989 SC 2206; State of Haryana v. Raghubir Dayal (1995) 1 SCC 133. On the manner of interpreting a provision as mandatory or directory, see also, Rampur v. Municipal Board, Rampur AIR 1965 SC 895; Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta (1985) 3 SCC 53. As to the difference between a mandatory and directory provision, see Sharif-ud-Din v. Abdul Gani AIR 1980 SC 303 and particularly, the observations in para 17 of Ponnammal .v Subburaman C.R.P. (P.D.) 489 of 2003‖ ―17. A mandatory provision in a statute is one, which renders the proceedings illegal and void on omission to comply with the same strictly, while directory provision is one where the substantial compliance of which is sufficient to validate the proceeding. The other test which can be employed to determine whether the provision is mandatory or directory in character, is whether non-compliance of the particular provision causes inconvenience or injustice and if it does then the Court would say that that provision must be complied with and that it is mandatory in character.‖ 15 AIR 2005 SC 2441, (2005) 4 SCC 480 16 The question of condonation of delay where a proviso spelling out a time period is couched in negative language had arisen earlier before the Supreme Court, albeit in the context of Section 13 of the Consumer Protection Act, 1986, in the cases of Dr. J. J. Merchant v. Srinath Chaturvedi AIR 2002 SC 2931, (2002) 6 SCC 635 decided on 12.08.2002 by a Bench of three Judges and Topline Shoes Ltd v. Corporation Bank (2002) 6 SCC 33 decided on 08.07.2002 by a Division Bench. In the former, while a specific reference was made to the provisions of Order VIII Rule 1 of the Code, holding that the time limit in the said rule was required to be strictly adhered to, the issue of a possible extension of time was not the principal issue before the Court. In Topline, the issue arose more directly. It may be interesting to note that in Topline, no reference was made to the case of JJ Merchant. (None of the judges or lawyers was however common). 6 if the time was not extended. … 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. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words - "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the 17 same to be directory though worded in the negative form.” The Court further observed that while extending the time beyond the stipulated period of 90 days, the courts may impose costs as a means to (a) deter the defendant and (b) compensate the plaintiff. The Court also held that the defendant seeking extension may be required to furnish affidavit and other documents in support of the grounds pleaded for extension of time, depending on the facts and circumstances of a given case. What appears to have weighed the mind of the Court in the Nankhu case was the recording of specific findings of fact by the lower authorities to the effect that (a) the written statement had been drafted and kept ready for filing much before the expiry of the limitation period; and (b) the factor that prevented the defendant’s counsel from filing the written statement was the death of his nephew. The first points to bonafide of the defendant and the second, that the event that prevented the written statement from being filed was out of the control of the defendant and his representatives. 18 In Rani Kusum v. Kanchan Devi, the summons was served upon the defendant on 10.11.2003 and the written statement was filed on 10.07.2004. The plaintiff objected to the acceptance of the written statement on the ground that the same was filed beyond the prescribed period of 90 days and that the court had, as result of the 2002 Amendment, no discretion in the matter. The High Court, however, accepted the written statement. The Supreme Court upheld the action of the High Court, based on the following four views: (a) the amendment dealt with and targeted only the obligation of the defendant and not the power of the courts to accept a written statement filed beyond the stipulated time in that ―the consequences flowing from non-extension of time are not specifically provided‖; (b) Order VIII, Rule 1 is a rule of procedure and is, therefore, the handmaid of justice; (c) India follows the adversarial system; and, (d) unless compelled by express and specific language of the statute, the courts ought not be rendered helpless to meet extraordinary situations. The Court reiterating that ―[t]he mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer‖ took the view that a ―procedural law should not ordinarily be construed as mandatory‖ and held that the proviso to Rule 1 of Order VIII of the Code was directory. It appears that the reasoning which was intended to operate as a way out of a rather stringent and a potentially harsh provision was made the ―ordinary‖ rule for interpreting procedural statutes by the Court. The procedural laws, on the contrary, represent the guarantee of the minimum standard of safeguards in the pursuit of a legal remedy, any conduct beneath which is considered unacceptable, and at times, abhorrent, by the members of the society whose legislature prescribes that law. Serious difficulties would arise for a judge, particularly from the subordinate 17 Emphasis supplied. See also, Sangram Singh v. Election Tribunal AIR 1955 SC 425, where, considering the provisions of the Code dealing with the trial of the suits, it was opined by the Court that: ―the Code is a ―procedur[al] and not a penal enactment … 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.‖ (Emphasis supplied). 18 AIR 2005 SC 3304, (2005) 6 SCC 705 (Arijit Pasayat and H.K. Sema, JJ.) per Pasayat, J. 7 judiciary, who is confronted with a submission to apply the aforesaid observation in reaching his decision in respect of a provision other than the proviso to Rule 1 of Order VIII of the Code. The only defence against the temptation of following the Supreme Court would then be the distinction between ―obiter dictum‖ and ―ratio decidendi‖ available to a properly informed judge or the 19 opposing counsel. 20 In Shaikh Salim Haji Abdul Khayumsab v. Kumar, the appellants were summoned on 21.10.2003 and sought time to file the written Statement, which was granted first until 17.11.2003 and for a second time until 19.02.2004. The latter date being a holiday, the written statement was filed on 20.02.2004. The trial court refused to accept the written statement on the ground of limitation. The Supreme Court found that the trial court had itself granted time up to 19.02.2004, which date fell beyond the period of 90 days. On the reasoning, that had the written statement been filed on 19.02.2004, the trial court could not have refused to accept the written statement as it was within the time granted by it, held that a mere fortuitous circumstance cannot make the written statement filed, unacceptable. While the Court reasoned its decision on the said basis, the same result could have been reached at by relying on the provisions of the Limitation Act, 1963 since the said Act expressly provides that where the last date of limitation is a holiday, the limitation extends to the date on which the concerned court reopens. The precise question, therefore, that the apex Court was called to answer was whether it was at all within the power of the trial court to provide a date which was beyond the period of 90 days. What appears to weigh with the Court in Shaikh Salim Haji is the principle that no person can be made to suffer because of an error on the part of a 21 judicial authority. Reference may also be made to the case of Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores 22 Ltd, where the summons was served on the defendant on 22.03.2005. On 25.04.2005, the counsel for the defendant sought, and was granted, time to file the written statement until 20.06.2005. The matter was adjourned three times and the written statement was finally filed in August 2005, i.e. almost five months later. Despite serious objections from the plaintiff, the court accepted the written statement, subject to costs of Rs.2,000/-. The action of the court accepting the written statement was challenged before the Supreme Court on the ground that the proviso to Order VIII, Rule 1 mandates the recording of reasons, which, in the matter, the courts below had failed to record. The apex Court set aside the orders of the lower courts on the ground that no reason(s) had been indicated justifying the acceptance of the belated written statement. 23 In R.N. Jadi v. Subhashchandra , the Supreme Court was once again confronted with a similar question. In that case also, the Court accepted the written statement after the expiry of the prescribed period of 90 days. In this case, however, the Court, for the first time, laid the test of ―a clear satisfaction of the justification for granting such extension.‖ Here, the delay occasioned was a delay of merely two days beyond the 90 days’ period. Citing Nankhu for the proposition that Order VIII, Rule 1 is directory, the Court dismissed the writ appeal as not maintainable. 19 See, generally, for the difference between ratio decidendi and obiter dicta, State of Orissa v. Sudhanshu Shekhar Misra AIR 1968 SC 647; MCD v. Gurnam Kaur AIR 1989 SC 38; Somawati v. State of Punjab AIR 1963 SC 151; T. Govidaraja Mudliar v. State of Tamil Nadu AIR 1973 SC 974; State of U.P. v. Ramchandra Trivedi AIR 1976 SC 2547; Director of Settlements v. M.R. Apparao (2002) 4 SCC 638; Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur AIR 1970 SC 1002. 20 AIR 2006 SC 396, (2006) 1 SCC 46 21 The principle is embodied in the Latin maxim actus curiae neminem gravabit. For application of that maxim generally by the Supreme Court, see also, Krishnaswamy S.Pd. v Union of India 281 ITR 305 (SC), ―The maxim of equity, namely, actus curiae neminem gravabit - an act of court shall prejudice no man, is founded upon justice and good sense which serves a safe and certain guide for the administration of law‖. 22 AIR 2007 SC 1574 (Arijit Pasayat and Lokeshwar Singh Panta, JJ.) per Pasayat, J. 23 AIR 2007 SC 2571, (2007) 6 SCC 420 (Arijit Pasayat, D.K. Jain and P.K. Balasubramanyam, JJ.). 8 In the R. N. Jadi case, Balasubramanyam, J. made some interesting comments (and a possible clarification) of his reading of Nankhu, to which his Lordship was a party. Retorting tacitly the observation that ―ordinarily procedural laws cannot be interpreted as mandatory‖, his Lordship, underlining the desirability of leaving a residuary power with the courts, observed that ―there could be situations where even a procedural provision could be construed as mandatory… Kailash v. Nankhu is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.‖ As indicators, where the courts could exercise the power to grant an extension, the Court pointed out that the power to grant extension should be exercised (a) with caution, (b) for adequate reasons (c) only based on a clear satisfaction of the justification for granting such extension and (d) only in rare and exceptional cases. 24 In its ―order‖ passed in the case of Zolba v. Keshao, the Supreme Court reaffirming the law laid down in the Salem Advocates Bar Association case, turned its language negative and took the view that it was ―unable to hold that the provisions under Order VIII, Rule 1 are mandatory in nature.‖ In that case, a suit for partition was filed against the defendant therein. In the said suit, an application for grant of temporary injunction was moved and allowed. Against the order granting temporary injunction, the defendant preferred an appeal, which remained pending. The counsel of the defendant advised that the written statement could be filed after the decision of the aforesaid appeal. On that basis, the defendant did not file the written statement until his counsel reconsidered the matter and advised him to file the written statement. The defendant, accordingly, filed an application for acceptance of the written statement along with a request for condonation of delay. The Court decided to excuse the delay for the reason that the place of filing the suit and the place of preferring the appeal against the order of injunction were different and ―[t]herefore, the file was not available with the lawyer of the appellant at [the place of the suit] and therefore, the written statement could not be filed within limitation.‖ 25 In Sambhaji v. Gangabai and Ors, the Supreme Court allowed the written statement to be entertained after the expiry of 90 days of the service of summons on the consideration that in a case ―where close relatives are litigants, a liberal approach is called for.‖ 26 In Mohammed Yusuf v. Faij Mohammad, the summons in respect of a suit for a decree for permanent injunction with application for temporary injunction was served on 06.07.2002 and the adjournments were sought and granted from time to time until 31.05.2005, when the plaintiff applied for pronouncement of judgment in terms of Order VIII Rule 10 of the Code on the ground of non-filing of the written statement by the defendant. On the said date, no application for condonation of delay was however filed. The trial court refused to entertain the written statement and, instead, fixed the matter for recording of evidence in support of plaintiff’s case. In a writ petition, however, the High Court allowed the petitioner to contest the suit on merits and accepted his written statement, subject to payment of costs of Rs. 10,000/-. The Court, referring to the Nankhu case, held that while the said case interpreted the provisions of the proviso to Order VIII Rule 1 of the Code as directory, this Court, ―in no uncertain terms stated that defendants may be permitted to [do so] only in exceptional situation‖ and on that reasoning, set aside the order of the High Court in view of the clear recording of the reasons against such acceptance by the trial court. In this case, the Court also reiterated the limitation on 27 the writ jurisdiction of the High Courts under Articles 226/227 of the Constitution. 24 AIR 2008 SC 2099, (2008) 11 SCC 769 (Tarun Chatterjee and Harjit Singh Bedi, JJ.). See also, Haripriya Padmanathan, ―CPC Observed in its Breach‖ (2008) Practical Lawyer 27. 25 2008 (15) SCALE 322 (Arijit Pasayat and Mukundakam Sharma, JJ.) per Pasayat, J. 26 2009 (1) SCALE 71 (S.B. Sinha and Cyriac Joseph, JJ.). 27 On the point of limitation of jurisdiction under Article 226/227 of the Constitution, the Court observed that ―the jurisdiction of the High Court under Article 226 and 227 of the Constitution of India is limited. It could have set aside the orders passed by the learned trial Court and the Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety. The High Court did not arrive at a finding that there had been a substantial failure of justice or the orders passed by the trial Court as also by the Revisional Court contained error apparent on 9 SUMMARY OF THE JUDICIAL RESPONSE The following table summarizes the manner in which the Supreme Court responded to the aforesaid cases: Title of the Case Date of Service of Summons Kailash Nanhku 06.04.2004 v. Date of Filing of Written Statement 08.07.2004 Cause for the Delay Decision of the Court and the rule/ principle evolved/ applied Death of the nephew of the defendant’s counsel Written accepted statement Proviso to O. VIII, R. 1 is directory and by way of an exception and for reasons recorded, departure is permissible Rani Kusum v. Kanchan Devi 10.11.2003 10.07.2004 No reason cited in the judgment Written accepted statement The 2002 Amendment dealt with only the ―obligation‖ of the defendant and not the ―power‖ of the courts Shaikh Salim Haji Abdul Khayumsab v. Kumar 21.10.2003 Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd. 22.03.2005 R.N. Jadi v. Subhash Chandra Not cited in the judgment 20.02.2004 August 2005 08.06.2004 The trial court had itself adjourned the matter to a date beyond 90 days’ period. The said date was a holiday and the defence was filed the next day Accepted the statement No reasons cited by the defendant Acceptance refused Date fixed by court was beyond the 90 days’ period written No person to suffer from an act of a court No reason(s) had been indicated justifying the acceptance of the belated written statement Accepted the written statement No person to suffer from an act of a court the face of the record warranting interference by a superior Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.‖ (Emphasis supplied). 10 Zolba Keshao v. Mohammed Yusuf v. Faij Mohammad Not cited in the judgment 06.07.2002 Not cited in the judgment 31.05.2005 Defendant was pursuing appeal against order granting temporary injunction to the plaintiff and honestly believed that the written statement could be filed after disposal of the aforesaid appeal. The defendant was so advised by his counsel Accepted the statement written No reason cited in the judgment Acceptance refused Since the place of filing the suit and the place of preferring the appeal against the order of injunction were different, the file was no available with the defendant’s counsel and so, delay would be excused Nankhu is no authority for indiscriminate and routine acceptance of belated written statements CONCLUDING THOUGHTS AND (IN)CONCLUDING TREND! After Nankhu, there remains no controversy that the proviso to Rule 1 of Order VIII of te Code is 28 directory and the time limit of 90 days stipulated therein can be extended. What, however, continues to be difficult is the assessment of the gravity of circumstances in which judicial discretion warrants an exercise in favour of the extension of time. On a survey of the aforesaid decisions handed down by the Supreme Court, the following principles appear to emerge: 1. The proviso has an in-built mechanism for the extension of time for sufficient reasons. Thus, any further extension of time beyond the stipulated time limit of 90 days in the proviso is permissible only if the Courts is ―clearly satisfied‖ that there exist cogent reasons that prevented the defendant from filing the written statement; 2. Where the court is satisfied of the cogency of reasons, it must record its satisfaction each time it extends the time; 3. The time which may then be extended must be reasonable considering all the facts and circumstances and the reasons cited by the defendant. 4. In order to deter the defendant and with a view to compensating the plaintiff for the delay, the court may impose costs upon the defendant, which would be payable to the plaintiff. Whether the trial/appellate courts are indeed following these principles is far from clear. The Nankhu case has often come to being seen as an authority for the proposition that costs may be imposed in lieu of extension of time. In some cases, it may be observed that the courts have begun to looking at costs as an effective substitute for the court’s satisfaction of the cogency of reasons. The undercurrent leading to that attitude is perhaps a tacit consciousness that a fortuitous circumstance pressed into service and cited as a reason for the delay in filing of the 28 Amongst others, see the case of J.M. Overseas v. Shri Vijay Kumar Mangla RFA No. 20/2005 (Delhi High Court) rendered on 08.01.2007, where the arguments of the mandatory nature of the proviso to Rule 1 of Order VIII of the Code were raised and demolished after a detailed survey of all major decisions on the issue. 11 written statement, is, more often than not, unconnected with the delay. And yet, should that trend 29 be permitted to continue? 29 As an illustration, see the decision of the Delhi High Court in the case of S. Randhir Singh Chandhok v. Atma Ram Bansal IA Nos.579/08, 845/08 and 844/08 in CS(OS) No.927/2007 (20.03.2008), where though the Court categorically recorded a finding that ―the delay in filing the written statement is not properly‖, the Court accepted the belated written statement upon payment of costs of Rs.25,000 by the defendant to the plaintiff. Contrast this case with the decision of the Supreme Court in the case of Aditya Hotels (supra), where the Court refused to accept the written since the trial court did not record satisfactory reasons. The Court took the view that the imposition of costs would not in such cases cure the impropriety. Similarly, see, Mohd. Yusuf (supra), where imposition of costs of Rs.10,000 was held to make no material difference and the Supreme Court refused to allow the acceptance of the belated written statement. For another illustration of a less-than-strict following of the texted principles, see the case of Manoj Verma v. Mevaram Verma CW Case No. 3105 of 2005 (Rajasthan High Court) rendered on 15.07.2005, where the Court made the failure of the plaintiff to raise timely objection as the basis for allowing the acceptance of the belated written statement. 12