Delay beyond 90 days period

I donot think the mandatory period of 30 days not 90 days is to be follwed when an applicaton under VII Rule 11 is pending. When the applicaton under VII Rule 11 is pending that means the suit is still not been found fit to proceed with.

Mr Ashok the period beyond 30 days  till 90 days as mentioned in proviso to Order VIII Rule 1 is at the discretion of the Court within which the court will fix a date for filing WS. The court may also allow filing of WS beyond this 90 days if reasonable cause is shown to the court.

Dear Surjitji

You are right the mandatory period is 30 days as provided under the CPC

What I meant was the 90 days period after applying the discretion of the Court  in the matter

As mentioned by you When the applicaton under VII Rule 11 is pending that means the suit is still not been found fit to proceed with. Logically this appears correct. But are their any rulings on this?

Does that also mean that the filing of the WS can be withheld When the applicaton under VII Rule 11 is pending that means the suit is still not been found fit to proceed with.?

In fact  my query is simple

Can the filing of written statement be postponed till Application under Order VII Rule 11 is disposed off even if teh 90 days period has lapsed but not because of teh defendents fault but because of adjournments by court?

Mr Ashok let presumed that you have filed the WS within 30 days after gettnig the notice, Subsequently if under Ordfer VII Rule 11 the suit is rejected, does your WS has any meaning. It is a matter to be argued before the court. You can ask the court to allow you time for filing your WS till the applicaton under VII Rule 11 is disposed.

Irrespective your objections WS has to be filed , delay will be condoned by costs

.

You must take in the  WS  pleading the reasons of non maintainability of suit and than move indepent application but only after filing WS..

Non filing of ws can not be excused . Delayed WS will be accepted .

I think an application under Over VII Rule 11 has already been filed in this case before filing of the WS, which has not been disposed of . Mr. Yogeshwar is right one should filed his WS mentioning about the non maintainability of the suit, but what about the applicaton under OVIII R-11. On the other hand  it appears that the court has not fixed any date of filing of WS after the expiry of 30 mandatory period as provided in the proviso to Order VIII R-1. In this situation is it not proper to press for disposing of the  applicaton under OVIII R-11 with an undertaking to file the same immediately after disposal of the said applicaton.

Thanks Yogeshwarji & Surjit Singhji

There are large number of SC decisions wherein refusal of lower courts to accept the WS due to the delay in filing of WS has been held to be against the principle of natural Jutice and it has been held that where there ar ecogent reasons for the delay, the delay must be condoned!

But here, I am discussing another point of view & point of law

I dont want to "create" any reason for the delay in filing the WS. In fact the WS can be easily filed by me!

But as made out by Sh Surjit Singhji, and this is what I too feel, when it is 100% certain that the Ws or the plaint cannot be dealt with in any manner whatsoever till the Application unnder Order VII Rule 11 is disposed off, what purpose does the filing of the WS serves ?

I am asking for any SC or HC judgement on this issue not the opinion because opinions differ wheras Judgements are binding!

You see for example:

The 2002 amendment in CPC took away away from the courts the discretion to extend time for filing of the written statement,

It reads as follows:

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.. 

Despite such clear law the Sc has held that the courts can grant time beyond  90 days aalso and that this 2002 amendment is not mandatory!

So what I mean to say that any logical person on reading the amendment of 2002 would feel that one has to file teh Ws in 90 days and under no circumstance will he get more time!

This is not the case because the SC has held otherwise

That is Y I am asking not for the law or opinion,as I have the differring opinions and am well versed with the law on the subject. 

What I am asking is does anyone have knowledge of any SC judgement which says that pending Application under Order VII Rule 11, the WS can be delayed

Yes Surjitji

You have fully grasped teh situation and U have very well stated what is in fact my question when u say

It is right that I have already an application under Over VII Rule 11  in this case before filing of the WS, which has not been disposed of .

While in normal circumstances Mr. Yogeshwar is right one should filed his WS mentioning about the non maintainability of the suit, but what about the applicaton under OVII R-11.? This is the questionwhich I am seeking an answer to!

I may correct you that the court has been giving dates for filing of WS after the expiry of 30 mandatory period as provided in the proviso to Order VIII R-1.

But my question is In this situation is it not proper to press for disposing of the  applicaton under OVII R-11 with an undertaking to file the same immediately after disposal of the said applicaton.

Ashok, 

Delay condonation to file WS will be granted.

You must apply Court to first hear the Prelimanary Objection : sUBJECT TO sEC 9 OF cpc TO TRY all civil suit. 

[e.g.  Suit by Partner , where Arbitration clause bar civil court, but still Civil court try the dispute of partners, as Civil court can try any civil suits. Simiolarly Co-op Society members suit, ] 

You may apply to grant you time to file WS till the Obj under O7 r11 CPC  is heard & disposewd off. Once thgis Application is heard and allowed, you do not run risk of 90 days WS limitation. . 

It is proper to press disposal od ur Application, at the earlier stage to save valuable time of Hon'ble Court as well as of parties to suit. 

Dear Shroff Sir

You have stated what seems to be logical in teh situation and I also feel that way!

But is there not any reference case wherein filing of Ws is done away til Application under Order VII Rule 11 is disposed off