Rule 1 of Order 8 of Code of Civil Procedure (hereafter referred as C.P.C) briefly states that when the defendant is served with summons he has 30 days to file a written statement in his defense. If somehow defendant failed to file his written statement within 30 days, he can file the same on some other day specified by the court but t shan’t be later than 90 days from the day the summons were first served.
Rule 10 of Order 8 of C.P.C states that if party fails to file his written statement within 30 days or even 90 days defined under Rule 1 of Order 8 of C.P.C then the court “shall” pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
However Supreme court in certain cases have said that in certain “exceptional cases”, defendant can file his written statement even after 90 days.
Here are some Supreme Court cases which provide us with the Ratio Decidendi on the same point.
# Salem Advocate Bar Association v UOI, 2005, 6, SCC, 344
In this case Supreme Court has interpreted the above Rule 1 of Order C.P.C. The court held “…despite use of 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 within 90 days.
The court said in interpreting Rule 1 of Order C.P.C, Doctrine of Harmonious Construction should be applied.
Apex court also held “… Court has wide power to make such order in relation to such suit as it thinks fit. However we wish to make it clear that the order extending time to file a written statement can’t be made in routine. Time can only be extended in only Exceptional cases.”
# Atcom Technologies Ltd. v Y.A. Chunawala and Co. 2018, 6, SCC, 639
Here also the Supreme court relied on the precedent set in Salem Advocate Bar association case. It was held that in exceptional cases onus upon the defendant is higher to successfully plead and show that he had a genuine reason or cause for not filing the written statement within 30 days.
Now there are certain guidelines held in a judgment given by Guwahati High court. We’ll discuss those guidelines below;
# Manager (Finance) Hindustan Paper Corporation v Canara Bank
The court in it’s ratio said;
- “Ordinarily a written statement shall be filed within 90 days from the date on which summons were issued, however in exceptional cases courts have the power to extend the period.”
- ” I have to point out that C.P.C is divided into two parts and while the main body of the code which consists of Sections, rules framed under various orders of code indicate the procedure”
- ” Rule 1 of Order 8 of C.P.C are part of Procedural law. The procedural law is ‘Handmaid of Justice’ and can’t override the necessity to do justice between the parties to the suit. No part of procedural law and not even Order 8, Rule 1 or Rule 10, can be treated to have ‘disempowered the court’ or can be said to in the way of the court to make exception in an ‘Appropriate Case.’
- “In Kailash v Nankhu, apex court has made it clear that a court may for reasons to be recorded in writing by way of exception, extended the prescribed period of 90 days if the court is satisfied.”
- ” Circumstances should be 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”
- “The defendant should be vigilant. The extension of time sought by the defendant from the court, shouldn’t be granted just as a matter of routine and merely for the asking.”
- ” The court may impose costs on the person asking for the extension in two cases. Firstly ‘to deter‘ the defendant from seeking extension of time just for the asking. And secondly ‘to compensate’ the plaintiff for the delay and inconvenience.”
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