Or. VIII, rule 1 C.P.C.- filing of written statement - time fixed in C.P.C - is only directory not mandatory - extention of time beyond the prescribed period - can be granted on sufficient cause - Rejection of the application is set aside - time granted on costs of Rs. 50,000/- =
The application of the appellant for seeking extension in
time for filing the written statement has been rejected with the
observation that that Order VIII Rule 1 CPC is mandatory and the
Court cannot permit filing of a written statement beyond the 30
days from the date of service of summons. At best, the Court
has power to permit a period of further 60 days from the date of
service of summons upon the defendant to file the written
statement. But this has to be done for reasons to be recorded in
writing. Since the appellant herein has filed the application
beyond the period of 30 days + 60 days, it was not permissible
for the Court to allow the appellant to file the written
statement.
The purpose of providing the time schedule for
filing the written statement under Order VIII, Rule 1 of
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 of Order VIII of the 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 VIII, Rule 1 of the CPC is not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of
Procedural Law and hence directory, keeping in view the
need for expeditious trial of civil causes which persuaded
the Parliament to enact the provision in its present form,
it is held that ordinarily the
time schedule contained in the provision is to be followed
as a rule and departure therefrom would be by way of
exception. A prayer for extension of time made by the
defendant shall not be granted just as a matter of routine
and merely for asking, more so when the period of 90 days
has expired. Extension of time may be allowed by way of an
exception, for reasons to be assigned by the defendant and
also be placed on record in writing, howsoever briefly, by
the Court on its being satisfied. Extension of time may be
allowed if it was needed to be given for the circumstances
which are exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would be
occasioned if the time was not extended. Costs may be
imposed and affidavit or documents in support of the
grounds pleaded by the defendant for extension of time may
be demanded, depending on the facts and circumstances of a
given case.”
8. We are satisfied that in the circumstances of this case,
the High Court ought to have permitted the appellant to file
written statement, beyond the period prescribed in Order VIII
rule 1, given the facts and circumstances of this case.
...6/-
:6:
9. In view of the above, the appeal is allowed. The
appellant is permitted to file the written statement within a
period of two weeks from today on payment of Rs.50,000/- (Rupees
fifty thousand) as cost.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 65 OF 2014
[Arising out of Special Leave Petition (Civil) No.5951 of 2011]
SANDEEP THAPAR ...APPELLANT
VERSUS
SME TECHNOLOGIES PRIVATE
LIMITED ...RESPONDENTS
ORDER
1. Leave granted.
2. This appeal has been filed impugning the judgment and
order dated 12th November, 2010 in FAO(OS) NO.607 of 2010,
whereby the Division Bench of the Delhi High Court dismissed the
appeal filed by the appellant in I.A. NO.13902 of 2008 filed
under Order VIII rule 1 praying for extension of time for filing
written statement by the defendant i.e. the appellant herein
till I.A. No. 11803 of 2008 filed under Order I rule 10 to
implead Mr. Sharad Maheshwari as plaintiff. The aforesaid Mr.
Sharad Maheshwari is the Managing Director of the plaintiff
Company who is privy to the entire cause of action of the suit
filed for recovery of Rs.39.90 lakhs based on alleged oral
agreement/understanding. The applications filed by the
appellant were dismissed by the learned Single Judge of the High
Court on 3rd August, 2010.
...2/-
:2:
3. The aforesaid order was challenged before the Division
Bench. The Division Bench after hearing the counsel for the
parties has observed that the learned single judge has correctly
held that it is not necessary to implead Mr. Sharad Maheshwari
as the plaintiff as the company being a legal entity is entitled
to file a suit in its own name through an authorized
representative. It is also observed that it is for the
plaintiff to prove its case during the trial. Therefore, non
impleadment of Mr. Sharad Maheshwari will have consequences only
for the plaintiff and not for the appellant. The plea of the
appellant that since Mr. Sharad Maheshwari had not filed his
affidavit, despite the entire suit being based on an oral
agreement alleged to have been entered into between the
appellant and Mr. Maheshwari, in case the appellant was to file
his written statement that would disclose his defence, has been
rejected by the Division Bench.
4. The High Court was of the opinion that even if Mr. Sharad
Maheshwari is impleaded and had filed an affidavit, the
averments in the plaint could not have been changed. In other
words, the character
...3/-
:3:
of the plaint, the pleadings contained therein and the relief
claimed would remain the same.
5. The application of the appellant for seeking extension in
time for filing the written statement has been rejected with the
observation that that Order VIII Rule 1 CPC is mandatory and the
Court cannot permit filing of a written statement beyond the 30
days from the date of service of summons. At best, the Court
has power to permit a period of further 60 days from the date of
service of summons upon the defendant to file the written
statement. But this has to be done for reasons to be recorded in
writing. Since the appellant herein has filed the application
beyond the period of 30 days + 60 days, it was not permissible
for the Court to allow the appellant to file the written
statement.
6. Learned counsel for the appellant has submitted that
undoubtedly the limit under Order VIII rule 1 has to be
observed, but in exceptional circumstances in order to ensure
that the injustice is not done, the Court will have the power to
permit the defendant to file the written statement.
...4/-
:4:
7. We have considered the submission made by the learned
counsel. In our opinion, the submission made by the learned
counsel is well founded in view of the observations made by this
Court in
Kailash versus Nanhku and others reported in (2005) 4 SCC 480],
wherein this Court has observed as follows:
46. We sum up and briefly state our conclusions as
under:-
(i) ....
(ii) ....
(iii) ....
(iv) The purpose of providing the time schedule for
filing the written statement under Order VIII, Rule 1 of
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 of Order VIII of the 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 VIII, Rule 1 of the CPC is not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of
Procedural Law and hence directory, keeping in view the
need for expeditious trial of civil causes which persuaded
the Parliament to enact the provision in its present form,
it is held that ordinarily the
...5/-
:5:
time schedule contained in the provision is to be followed
as a rule and departure therefrom would be by way of
exception. A prayer for extension of time made by the
defendant shall not be granted just as a matter of routine
and merely for asking, more so when the period of 90 days
has expired. Extension of time may be allowed by way of an
exception, for reasons to be assigned by the defendant and
also be placed on record in writing, howsoever briefly, by
the Court on its being satisfied. Extension of time may be
allowed if it was needed to be given for the circumstances
which are exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would be
occasioned if the time was not extended. Costs may be
imposed and affidavit or documents in support of the
grounds pleaded by the defendant for extension of time may
be demanded, depending on the facts and circumstances of a
given case.”
8. We are satisfied that in the circumstances of this case,
the High Court ought to have permitted the appellant to file
written statement, beyond the period prescribed in Order VIII
rule 1, given the facts and circumstances of this case.
...6/-
:6:
9. In view of the above, the appeal is allowed. The
appellant is permitted to file the written statement within a
period of two weeks from today on payment of Rs.50,000/- (Rupees
fifty thousand) as cost.
....................,J.
(SURINDER SINGH NIJJAR)
...............................,J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI
JANUARY 02, 2014
The application of the appellant for seeking extension in
time for filing the written statement has been rejected with the
observation that that Order VIII Rule 1 CPC is mandatory and the
Court cannot permit filing of a written statement beyond the 30
days from the date of service of summons. At best, the Court
has power to permit a period of further 60 days from the date of
service of summons upon the defendant to file the written
statement. But this has to be done for reasons to be recorded in
writing. Since the appellant herein has filed the application
beyond the period of 30 days + 60 days, it was not permissible
for the Court to allow the appellant to file the written
statement.
The purpose of providing the time schedule for
filing the written statement under Order VIII, Rule 1 of
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 of Order VIII of the 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 VIII, Rule 1 of the CPC is not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of
Procedural Law and hence directory, keeping in view the
need for expeditious trial of civil causes which persuaded
the Parliament to enact the provision in its present form,
it is held that ordinarily the
time schedule contained in the provision is to be followed
as a rule and departure therefrom would be by way of
exception. A prayer for extension of time made by the
defendant shall not be granted just as a matter of routine
and merely for asking, more so when the period of 90 days
has expired. Extension of time may be allowed by way of an
exception, for reasons to be assigned by the defendant and
also be placed on record in writing, howsoever briefly, by
the Court on its being satisfied. Extension of time may be
allowed if it was needed to be given for the circumstances
which are exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would be
occasioned if the time was not extended. Costs may be
imposed and affidavit or documents in support of the
grounds pleaded by the defendant for extension of time may
be demanded, depending on the facts and circumstances of a
given case.”
8. We are satisfied that in the circumstances of this case,
the High Court ought to have permitted the appellant to file
written statement, beyond the period prescribed in Order VIII
rule 1, given the facts and circumstances of this case.
...6/-
:6:
9. In view of the above, the appeal is allowed. The
appellant is permitted to file the written statement within a
period of two weeks from today on payment of Rs.50,000/- (Rupees
fifty thousand) as cost.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 65 OF 2014
[Arising out of Special Leave Petition (Civil) No.5951 of 2011]
SANDEEP THAPAR ...APPELLANT
VERSUS
SME TECHNOLOGIES PRIVATE
LIMITED ...RESPONDENTS
ORDER
1. Leave granted.
2. This appeal has been filed impugning the judgment and
order dated 12th November, 2010 in FAO(OS) NO.607 of 2010,
whereby the Division Bench of the Delhi High Court dismissed the
appeal filed by the appellant in I.A. NO.13902 of 2008 filed
under Order VIII rule 1 praying for extension of time for filing
written statement by the defendant i.e. the appellant herein
till I.A. No. 11803 of 2008 filed under Order I rule 10 to
implead Mr. Sharad Maheshwari as plaintiff. The aforesaid Mr.
Sharad Maheshwari is the Managing Director of the plaintiff
Company who is privy to the entire cause of action of the suit
filed for recovery of Rs.39.90 lakhs based on alleged oral
agreement/understanding. The applications filed by the
appellant were dismissed by the learned Single Judge of the High
Court on 3rd August, 2010.
...2/-
:2:
3. The aforesaid order was challenged before the Division
Bench. The Division Bench after hearing the counsel for the
parties has observed that the learned single judge has correctly
held that it is not necessary to implead Mr. Sharad Maheshwari
as the plaintiff as the company being a legal entity is entitled
to file a suit in its own name through an authorized
representative. It is also observed that it is for the
plaintiff to prove its case during the trial. Therefore, non
impleadment of Mr. Sharad Maheshwari will have consequences only
for the plaintiff and not for the appellant. The plea of the
appellant that since Mr. Sharad Maheshwari had not filed his
affidavit, despite the entire suit being based on an oral
agreement alleged to have been entered into between the
appellant and Mr. Maheshwari, in case the appellant was to file
his written statement that would disclose his defence, has been
rejected by the Division Bench.
4. The High Court was of the opinion that even if Mr. Sharad
Maheshwari is impleaded and had filed an affidavit, the
averments in the plaint could not have been changed. In other
words, the character
...3/-
:3:
of the plaint, the pleadings contained therein and the relief
claimed would remain the same.
5. The application of the appellant for seeking extension in
time for filing the written statement has been rejected with the
observation that that Order VIII Rule 1 CPC is mandatory and the
Court cannot permit filing of a written statement beyond the 30
days from the date of service of summons. At best, the Court
has power to permit a period of further 60 days from the date of
service of summons upon the defendant to file the written
statement. But this has to be done for reasons to be recorded in
writing. Since the appellant herein has filed the application
beyond the period of 30 days + 60 days, it was not permissible
for the Court to allow the appellant to file the written
statement.
6. Learned counsel for the appellant has submitted that
undoubtedly the limit under Order VIII rule 1 has to be
observed, but in exceptional circumstances in order to ensure
that the injustice is not done, the Court will have the power to
permit the defendant to file the written statement.
...4/-
:4:
7. We have considered the submission made by the learned
counsel. In our opinion, the submission made by the learned
counsel is well founded in view of the observations made by this
Court in
Kailash versus Nanhku and others reported in (2005) 4 SCC 480],
wherein this Court has observed as follows:
46. We sum up and briefly state our conclusions as
under:-
(i) ....
(ii) ....
(iii) ....
(iv) The purpose of providing the time schedule for
filing the written statement under Order VIII, Rule 1 of
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 of Order VIII of the 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 VIII, Rule 1 of the CPC is not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of
Procedural Law and hence directory, keeping in view the
need for expeditious trial of civil causes which persuaded
the Parliament to enact the provision in its present form,
it is held that ordinarily the
...5/-
:5:
time schedule contained in the provision is to be followed
as a rule and departure therefrom would be by way of
exception. A prayer for extension of time made by the
defendant shall not be granted just as a matter of routine
and merely for asking, more so when the period of 90 days
has expired. Extension of time may be allowed by way of an
exception, for reasons to be assigned by the defendant and
also be placed on record in writing, howsoever briefly, by
the Court on its being satisfied. Extension of time may be
allowed if it was needed to be given for the circumstances
which are exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would be
occasioned if the time was not extended. Costs may be
imposed and affidavit or documents in support of the
grounds pleaded by the defendant for extension of time may
be demanded, depending on the facts and circumstances of a
given case.”
8. We are satisfied that in the circumstances of this case,
the High Court ought to have permitted the appellant to file
written statement, beyond the period prescribed in Order VIII
rule 1, given the facts and circumstances of this case.
...6/-
:6:
9. In view of the above, the appeal is allowed. The
appellant is permitted to file the written statement within a
period of two weeks from today on payment of Rs.50,000/- (Rupees
fifty thousand) as cost.
....................,J.
(SURINDER SINGH NIJJAR)
...............................,J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI
JANUARY 02, 2014
