Filing of written statement after 90 days

Provision on filing written statement

As per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), the defendant is obligated to present a written statement of his defence within 30 days from the date of service of summons. The proviso to the rule enables the Court to extend the period for filing the written statement up to 90 days for sufficient reasons that should be recorded.

That means ordinarily the defendant is required to file the written statement of his defence within a period of 30 days. However, for sufficient reasons that should be recorded in writing, the court can allow filing of the written statement within a maximum period of 90 days.

When a party fails to file within 90 days

The above said provision has come up for interpretation before the Supreme Court (SC) in a number of cases and the court has consistently taken a stand that the words ‘shall not be later than ninety days’ do not take away the power of the Court to accept written statement beyond that time. But the time can only be extended in exceptionally hard cases.

The Order VIII, Rule 10 of the CPC states that when any party fails to present written statement under the Rule 1 fails to present it within the time permitted or fixed by the Court, the Court has two options: one is to pronounce its judgment against him, and the other is to “make such order” in relation to the suit as it thinks fit.

While interpreting this provision the SC holds that the written statement can be filed even beyond the maximum period of 90 days in exceptional situation because the Order VIII, Rule 1 does not take away the power of the court to receive the written statement even after 90 days, since the rule is a procedural one and not a part of the substantive law (Rani Kusum v Smt Kanchan Devi : AIR 2005 SC 3304).

This decision is in consonance with the judgment of the three member bench in Salem Advocate Bar Association v. Union of India [AIR 2005 SC 3353] case delivered on 2nd august 2005. The judgment states that there is no restriction in Order VIII Rule 10 that after expiry of 90 days, further time cannot be granted and the court has wide power to “make such order in relation to the suit as it thinks fit”. Therefore, the Order VIII Rule 1 providing for the upper limit of 90 days to file written statement clearly is directory. But the order extending time to file written statement cannot be made in a routine manner. Rather the time should be extended only in exceptionally hard cases keeping 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 neutralize the period of 90 days fixed by Order VIII Rule 1.

The SC judgment in C.N.Ramappa Gowda v C.C.Chaqndergowda (D) By Lrs.& another, which was delivered by a three member bench delivered on 23 April, 2012 reiterated the dictum held by another three member bench in Kailash v Nanhku And Ors. [ (2005) 4 SCC 480], as follows:-

“The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.”

That means the court has the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed. Instead the court can pass such order as it may think fit in relation to the suit.

In  Atcom Technologies Ltd. v Y.A. Chunawala and Co [(2018) 6 SCC 639], the Supreme Court’s two member bench  reiterated the dictum laid down in the case of Salem Advocate Bar Association that the maximum time period of 90 days for the purposes of filing of the written statement can be extended in exceptional cases. However the defendant should satisfactorily convince the court some valid reason for not filing the written statement within 30 days.

A recent judgment delivered on 20th January 2020 by a two member bench of the SC in Desh Raj v Balkishan (D) reiterates that the observations in the judgment in Atcom Technologies Ltd. v Y.A. Chunawala & Co. holds the field as regards the timeline for filing of written statement in a non­ commercial dispute. In commercial disputes the time limit is different.

Harmonious construction of rules

In construing the provision of Order VIII Rule 1 and Rule 10 of the CPC, the doctrine of harmonious construction is to be applied. The effect would be that under Order VIII, Rule 10, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order VIII Rule 1. Therefore no restriction is there in Order VIII Rule 10 not to grant further time even after expiry of 90 days. The court has wide power to “make such order in relation to the suit as it thinks fit”.

Therefore in exceptional situations, the court has the power to extend the prescribed maximum period of 90 days for filing written statement by the defendant. However, such extension of time beyond 90 days should be granted only in exceptional cases.

To sum up

In short, in appropriate cases in exceptional situations the court is at liberty to grant time beyond the maximum permissible period of 90 days for filing of written statement by the defendant in a non-commercial civil suit. The burden of convincing the court the reasons for delay satisfactorily lies on the defendant who wants extension of time for filing written statement.

However it does not endow the defendant with any right to take as much time as he wants in filing the written statement. On the contrary, the court alone has the power to condone the delay when the party provides cogent and convincing reasons for the delay.

The author of the article, now with Thrissur Bar, can also be reached at rajankila@gmail.com