Case Note & Summary
The petitioner/defendant challenged the judgment and order dated 30th June 2003 passed by the learned Civil Judge, Junior Division, Margao, which declined to grant the application for extension of time to file the written statement in a pending civil suit. The defendant was served with summons on 10th December 2003, and the written statement was due within 30 days i.e., by 9th January 2003, and in any event within 90 days. The defendant sought to tender the written statement on 28th April 2003, which was opposed by the plaintiff. The trial court rejected the application, finding no ground to condone the delay. The defendant contended that there were negotiations between the parties to settle the matter, the earlier advocate for the plaintiff took discharge and a new advocate was appointed, and various interlocutory applications (for additional documents, appointment of commissioner, amendment) were pending, which prevented timely filing. The defendant had also filed a reply to interlocutory proceedings within seven days, which was almost similar to the written statement, indicating no dilatory tactics. The High Court, relying on the Supreme Court judgment in Shaikh Salim Haji Abdul Khayumsab v. Kumar & Others, held that Order VIII Rule 1 CPC is directory and not mandatory, and the court has discretion to extend time beyond 90 days in exceptional circumstances. Since the defendant had not adopted dilatory tactics and there was sufficient cause, the impugned order was set aside and the application for extension of time was allowed, directing the trial court to accept the written statement.
Headnote
A) Civil Procedure - Written Statement - Extension of Time - Order VIII Rule 1, Code of Civil Procedure, 1908 - The provision for filing written statement within 30 days and maximum 90 days is directory, not mandatory; court has discretion to extend time beyond 90 days in exceptional circumstances where no dilatory tactics are adopted and sufficient cause is shown - Held that the trial court erred in rejecting the application for extension as the defendant had not adopted dilatory tactics and there were ongoing negotiations and interlocutory applications (Paras 1-5).
Issue of Consideration
Whether the trial court was justified in refusing to extend time for filing written statement beyond the 90-day period under Order VIII Rule 1 CPC, and whether the provision is mandatory or directory
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 30th June 2003, and directed the trial court to accept the written statement filed by the petitioner/defendant.
Law Points
- Order VIII Rule 1 CPC is directory
- not mandatory
- court can extend time beyond 90 days in exceptional circumstances
- absence of dilatory tactics is a relevant factor
- negotiations between parties and pendency of interlocutory applications constitute sufficient cause for delay
