EXTENSION OF TIME FOR FILING A WRITTEN STATEMENT UNDER O8 R1 CPC SHOULD NOT BE DONE IN A ROUTINELY MANNER BUT ONLY IN EXCEPTIONAL CASES.

 

The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons [(1968) 2 QB 229  that “law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times”?

 

When a party institutes a suit, the court after due consideration issues a summons to the defendant. The statutory obligation of the defendants as per order 8 Rule 1 of the CPC is that the defendant shall present a written statement of his defence from the date of service of the summons.

The time limit to to file the written statement is 30 days and an additional 90 days further is granted by the court if there are sufficient reasons provided by the defendant for such delay. Failure to file a written statement beyond the 120 days(90 + 30) would render the right of defence of the defendant closed and the court would proceed to pronounce the judgement in relation to suit as it deems fit.

The above practice often takes another turn due to the parties regularly taking the benefit of that 90 days extension period. The Apex court has often reminded that the grace period to file a written statement is not a mandatory benefit that should be followed in a routinely manner by the defendant nor should it be routinely condoned and accepted by the adjudicating court.

The court while condoning the time limit to file a written statement filed beyond the period of 90 days should determine the 'sufficient cause' for such delay with utmost consideration. Justice (retd) R.F Nariman in State of Maharasthra vs Borse Bros Engineers . (2021) 6 SCC 460. observed that the “expression sufficient cause is not elastic enough to cover long delays beyond the period provided by the provision, it is not a loose panacea for the ill of pressing negligent and stale claims” it further emphasised that if sufficient cause had been made out, the party is not entitled to have the delay condoned as a matter of right.

In  Kailash v. Nanhku, (2005) 4 SCC 480, the supreme court observed that the intent of Order 8 Rule 1 CPC is that the provision is to be construed directory and not mandatory. It held that “the time schedule prescribed by Order 8 Rule 1 has to be honored. The defendant should be vigilant. No sooner the writ of summons is served on him 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 of the Code 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 if the time was not extended.”

 

A similar view was taken in R.N. Jadi & Brothers v. Subhashchandra, (2007) 6 SCC 420  where the Apex court held that the grant of extension of time beyond 30 days is not automatic and should be exercised with caution and for adequate reasons. In Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639 the court opinionated that the onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days.

 

GRANT OF EXTENSION OF TIME TO FILE WRITTEN STATEMENT BEYOND 90 DAYS SHOULD BE DONE ONLY IN EXCEPTIONAL OR RARE CASES.

 

The Apex court has time and again reiterated that the court should not exercise its inherent powers to extend the time to file Written statement beyond 90 days especially if the provision clearly provides specific timeline for the parties to adhere to. The Supreme Court in Salem Advocate Bar Assn. (2) v. Union of India (2005) 6 SCC 344 also reiterated in Atcom Technologies Ltd. (supra) held that the words “shall not be later than ninety days” does not take away the power of the court to accept written statement beyond 90 days since the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that 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 8 Rule 1.

In R.N. Jadi & Brothers(supra) the Supreme court observed that: “an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts.” Similarly, In Kailash (supra) the Apex court opinionated that the time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which do exist.

Thus, Order 8 Rule 1 is directory and not mandatory. It should be the prerogative of the court to determine and corroborate sufficient reasons and causes, if the defendant seeks time to condone the delay beyond 30 days but within the 90 days time frame, the court ought to impose heavy costs as per the gravity of the reasons it states but the court must refrain from exercising its inherent powers and condone the delay if the written statement is filed beyond the time frame of additional 90 days even though there are sufficient reasons given by the defendant. Delayed proceedings are the biggest criticism our justice system faces and extending time beyond the statutory provisions of Order 8 Rule 1 would defeat the principle of affective administration of justice and speedy disposal of cases.