One of the most common satire that the courts in india face is that of never ending civil suits.

It is shockingly common to witness cases pending for generations where the legal representatives of the parties are now represented by their subsequent legal representatives. Though as a law student i can understand the procedural technicalities, social practicalities and human limitations behind it but as a human it fails to pass any test of logic or sense to see cases being contested for decades with almost no progress. Though being a part of the fraternity one is used to defending and explaining the causes, but answering to oneself is what compelled me to research on the causes and look up the specific provisions. One of the provisions that drew my special attention was Order 8 Rule 1. The said provision deals with the filing of the WS by the opposite party. Utter the words 90 days before a civil lawyer and the spontaneous association that will rush through the mind like a synonym as it were would be Written Statement. The million dollar question here is whether the locking period or the limitation to file a Ws is 90 days or can one tread beyond the period of 90 days provided for under order 8 rule 1 of the CPC. The next question that would tag along almost simultaneously is that if a defendant can file a Ws beyond 90 days then what would be the extent and under what circumstances would such latitude be permissible ? As the thinking process is on and ideas gravel the mind, keeping the chain of queries and riddles in abeyance for a while, let us analyse the situation from the start. The expression ws has not been defined under the cpc, however the SC in fci vs. Yadav engineer and contractor (1982) 2 SCC 499 described it as a term of specific conotion, ordinarily signifying a reply to the plaint filed by the plaintiff. With the amendment of the CPC in 1976 w.e.f 1.2.1977 order 8 rule 1 read as follows ws- the defendant shall, at or before the first hearing or within such time as the court may permit, present a ws of his defence. No time frame was stipulated there in beyond which a defendant would be barred from filing his ws. The code bestowed wide discretionary powers on the court to permit the filing of a ws without restricting the same by way of imposing fetters on the period of limitation. Needless to say, that sound principles of justice and fair-play would guide the way. The court had a discretion to permit a ws to be filled belatedly but such discretion ought to have been exercised in a reasonable manner, keeping in view all the facts and circumstances of the case, including the fact whether a belated leave of the court would cause prejudice to the plaintiff or take away a vested right which had accrued to the plaintiff by the lapse of time. However, this provision came under scrutiny of the legislature and drastic changes were brought about by section 9 of the CPC amendment act,2002, wef 1.7.2002. The amendment made the following changes and today order 8 rule 1 stands as follows: ws-the defendant shall within thirty days from the date of summons on him, present a ws of his defence.

Provided that where the defendant fails to file a ws within the said period of thirty days, he shall be allowed to file the same on such other day as may be prescribed by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of summons Thus providing for an express outer limit within which a ws shall be filed. The use of the word shall apparently seems to circumscribe the discretion of the court to accept a ws beyond such limit. The cpc which consolidated and amended the laws governing the procedure of civil courts has gone under a sea change by way of amendments based on the recommendations of the law commission in order to secure an early and expeditious disposal of civil suits without sacrificing the firmness of the trial and Principles of Natural Justice. The statement of objects and reasons for enacting the cpc (amendment) act, 1976 records the following considerations on which the amendments were effected : i.) that a litigant should get a fair trial in accordance with the accepted principles of natural justice. ii.) that every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed. iii.) that procedure should not be complicated and should, to the otmost extent possible, ensure a fair trial. The CPC (amendment) act 1999 sought to substitute the contents of order 8 rule 1, however, after much resistance from the Bar, the text in the present form had been introduced in 2002 w.e.f. 1.7.2002. the purpose of such amendment,as elucidated in the statement of objects and reasons is to reduce delay in the disposal of cicil cases and it is in this light that the Apex court has interpreted the substituted provisions of order 8 rule 1. In kailash vs. Nankhu and ors. (2005) 4 SCC 480, nulligying arguments to the contrary, the Apex Court held, inter alia, that the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dialatory tactics , delayingthe disposal of cases, mush to the chagrin of th plaintiffs and petitioners approaching the court for quick relief. The object is to expedite the hearing and not to scuttle the same. The court went on to add promptly that 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. The court further held that though the power of the court under the provisio appended to Rule 1 Order 8 is circumscumbed by the words shall not be later than 90 days but the consequence flowing for non extension of time are not specifically provided ofr though they may be read in by necessary implication. Merely bcouse a rovision of ;law is couched in a negative language implying a mandatory character, the same is nor without expectation. Drawing from the landmark judgment of sangram singjh vs election tribunal, kota ( AIR 1955 SC 425) the Pex court held to the effect that procedures are designed to facilitate justice and further its ends. It is jnot a thing designed to trip people up and liberal constructions, wherever possible may be given lest the very means designed for furtherance of justice be used to frustrate it.

Besides this another pillar on which the interpretation stands is that no form of procedure should ever be permitted to exclude the presentation of litigants defense. In this regard the SC in salem advocated bar association, T.N vs, UOI (2005) 6 SCC 344 geld in para 21 that in construing this provision support must be had from order 8 rule 10 which provides that where any party from whom a WS is required under rule 1 or rule 9 , fails to present the same within timepertmitterd or fixed by the court, the court shall pronopunce judgment against him or make such potrher order in realtion tro the suitas it thinks fit. if the doctrine of harmonioyus construiction were to be applied, the feect would be that underrule 10 order 8- thecourt in its discretion wpukld hav the power to allow trhe defencdent to file his WS even after the expiry of ninety days provided in order 8 rule 1. There is no restriction in order 8 rule 10 that after expiry of 90 days, further time cannot bve granted. The climax is reached in the case as the court concludes in the said case that clearly, therefore, the provisions of order 8 rule 1 providing or the upper lmit iof 90 days to file ws is directory. The court cannot however, act whimsically or arbitrarily on the excercise of its discretion. What then are thepriciples on which the court wpould be guided while excercising discretiobn? The excercise of discretion by the court has to be judicial discretion, it may be pertinent to note that though judicial discretion has to dbe defined, the apex court in several cases has borrowed the edifying words of the benjium n. Cartozo from is book NATURE OF JUDICIAL PROCESS to understand the ter. judicial discretion cannot but be the discretion which is informed by tradition, mathedosied by anology and disciplined by system. Subsequent decisions have followed in the lione of kailash vs. Nanhku (decided on 6.4.2005) , though in Salem advocates association T.N vs. UOI decided on (2.8.2005), kailash vs. Nankhu was not considered or refered to. However the mode of contruction leads t ghe same principles, which have stoodf the test of time. These decisions have been relied on and followed in Rani kusum vs. Kanchan devi (2005) 6 SCC 705 and shaik salim hazi abdul (2006) 1 SCC 46. Besides the provision referred to above, there are pther provisions ion the cpc which lend support to the above proposition. The fiorst provision that is importtanmt to note in this context ios section 148, which readsenlargement of time- where nay period is fixed or granted by the court for doing any act prescribed or allowed by this code, the court may, in its discretion, from time to time, en;lardge such period not exceeding 30 days in total, even though the period originally fixed or granted may have expired. The provisomn of section 48 read with section 151 enables the court to take note of extra ordinary events and circumstances and while considering such situations, the court would not be powerless to extend time to mwet the excegencies in the interest of justice. The apex court while arriving at a just conclusion while interpreting the priovison of order 8 rule 12 considered the argument taht there may be cases and xcases which cannot be foretold or thought of precisiely when grave injustice may relut if the time imit iof datys prescribed by order 8 rule 1 was rigidly followed as the rule of thimb, failure of justice may be occasioned, tough for the delay the defendents and his counsel may not be blamed at all (2005) 4 SCC 480 (39) rule of procedure it is said, are rhe handmaid of justice. The ape court has reiterated in a no. Of cases that procedural law is not to be atyrant but a servant, not an obstruction but an aid to justice.

Procedural prescription are handmaids and not the mistress, a lubricant not a resisitant in the administration of justice. Firtehr while construing the language of provisions of order 8 rule 1 the observations made by Justice Krishna iyer ion suhsil kumar sen vs. State of bihar (1995) 15 CC 774 were taken note of and followed in kailash vs. Nankhu. The morality of justice at the hands of law troubles a judges conscience and points an angry interrogation at the law reformer. The procedural law so dominates in certain systems as tro overpoewer substantive rights and substantia;l justice. Thus, in the ultimate analysis what evolves fron the stuy of landmark judgemenst discussed above is that procedural law in this case order 8 rule 1 ought not to be construed in a manner which would leave the court help[less to meet extraordinary situations. That is to say extension of time beyond 90 days may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the controld of the defendent and grave injustice would be occasioned if the time was not extended.