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Amit Sachdeva


Delay in the disposal of cases has been a cause of serious concern for the judiciary and the
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
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.


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.

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
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.
The Code entered into force from 1st day of January 1909. See, Section 1(2) of the Code.

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

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;
(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 courts 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.


It took the legislature a little over a quarter of a century to realize that it had amended a wrong
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.

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.
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

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
(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
(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
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.

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/apr-
june2002/ica3.html, last visited on 23.06.2009. See also, M Shah Alam, A Possible Way out of Backlog in
[Bangladeshs] Judiciary The Daily Star (16 April, 2000).


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
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

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
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.

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.
See, Padam Sen v. State of U.P. AIR 1961 SC 218 and Monohar Lal Chopra v. Rai Bahadur AIR 1962SC 527.
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].

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,
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
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
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

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.
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

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.
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.
AIR 2003 SC 189, (2003) 1 SCC 49 (B.N. Kirpal, C.J., Y.K. Sabharwal and Arijit Pasayat, JJ.) per Kirpal, CJ.
(2005) 6 SCC 344 (YK Sabharwal, DM Dharmadhikari and Tarun Chaterjee, JJ) per Sabharwal, J.

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
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 Honble
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 Honble Supreme Court set aside the order of the High Court and accepted the
written statement.

Since Nankhus was the first decision by the Supreme Court on the issue and since this has been
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

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.
AIR 2005 SC 2441, (2005) 4 SCC 480
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).

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
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 defendants 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
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

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
AIR 2005 SC 3304, (2005) 6 SCC 705 (Arijit Pasayat and H.K. Sema, JJ.) per Pasayat, J.

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
opposing counsel.
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
judicial authority.

Reference may also be made to the case of Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores
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.
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.

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.
AIR 2006 SC 396, (2006) 1 SCC 46
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.
AIR 2007 SC 1574 (Arijit Pasayat and Lokeshwar Singh Panta, JJ.) per Pasayat, J.
AIR 2007 SC 2571, (2007) 6 SCC 420 (Arijit Pasayat, D.K. Jain and P.K. Balasubramanyam, JJ.).

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.
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.
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.
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 plaintiffs 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
the writ jurisdiction of the High Courts under Articles 226/227 of the Constitution.

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.
2008 (15) SCALE 322 (Arijit Pasayat and Mukundakam Sharma, JJ.) per Pasayat, J.
2009 (1) SCALE 71 (S.B. Sinha and Cyriac Joseph, JJ.).
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


The following table summarizes the manner in which the Supreme Court responded to the
aforesaid cases:

Title of the Date of Date of Cause for the Delay Decision of the Court
Case Service of Filing of and the rule/ principle
Summons Written evolved/ applied
Kailash v. 06.04.2004 08.07.2004 Death of the nephew of Written statement
Nanhku the defendants counsel accepted

Proviso to O. VIII, R. 1
is directory and by way
of an exception and for
reasons recorded,
departure is permissible

Rani Kusum 10.11.2003 10.07.2004 No reason cited in the Written statement

v. Kanchan judgment accepted
The 2002 Amendment
dealt with only the
obligation of the
defendant and not the
power of the courts

Shaikh Salim 21.10.2003 20.02.2004 The trial court had itself Accepted the written
Haji Abdul adjourned the matter to statement
Khayumsab a date beyond 90 days
v. Kumar period. The said date No person to suffer
was a holiday and the from an act of a court
defence was filed the
next day

Aditya Hotels 22.03.2005 August 2005 No reasons cited by the Acceptance refused
(P) Ltd. v. defendant
Bombay No reason(s) had been
Swadeshi indicated justifying the
Stores Ltd. acceptance of the
belated written
R.N. Jadi v. Not cited in 08.06.2004 Date fixed by court was Accepted the written
Subhash the beyond the 90 days statement
Chandra judgment period
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).

Zolba v. Not cited in Not cited in Defendant was Accepted the written
Keshao the the pursuing appeal against statement
judgment judgment order granting
temporary injunction to Since the place of filing
the plaintiff and the suit and the place of
honestly believed that preferring the appeal
the written statement against the order of
could be filed after injunction were
disposal of the different, the file was no
aforesaid appeal. The available with the
defendant was so defendants counsel
advised by his counsel and so, delay would be

Mohammed 06.07.2002 31.05.2005 No reason cited in the Acceptance refused

Yusuf v. Faij judgment
Mohammad Nankhu is no authority
for indiscriminate and
routine acceptance of
belated written


After Nankhu, there remains no controversy that the proviso to Rule 1 of Order VIII of te Code is
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 courts 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

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.

written statement, is, more often than not, unconnected with the delay. And yet, should that trend
be permitted to continue?

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