|Date | Version||August 14, 2020 | 1.0|
|Keywords||‘Written Statement’, ‘Order VIII Rule 1’, ‘extension of time’, ‘Mandatory’, ‘directory’, ‘Kailash vs. Nankhu’, ‘Gautam Gambhir vs. M/s Jai Ambey Traders & Ors.’ and ‘Iridium India Telecom Ltd vs. Motorola Inc.’|
|List of Legislations Referred||‘The Code of Civil Procedure Code, 1908’ and ‘The Delhi High Court (Original Side), Rules 2018’|
Any law which has general applicability and lays down general set of rules is considered to be a general law or the law of the land. Whereas, a special law is a law which relates to a particular subject and contains special provisions which are different from a general law. The Supreme Court of India has settled the proposition of law that between a special law and general law, the special law shall always prevail.[i]
We are here concerned with Order VIII Rule 1 of the Code of Civil Procedure, 1908 (‘CPC’) on the one side and Rule 4 of Chapter 7 of the Delhi High Court (Original Side), Rules 2018 (‘High Court Rules’) on the other. Both the said provisions provide the time period within which a Written Statement has to be filed in court. However, when it comes to extending the period to file the Written Statement beyond 120 days, the interpretation of both the provisions is different.
Order VIII Rule 1 of CPC, provides that the Written Statement has to be filed within a period of thirty (30) days from the date of service of summons. However, the first proviso to the Rule states 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.”
Rule 4 of Chapter 7 of the Delhi High Court (Original Side), Rules 2018 (‘High Court Rules’) also deals with the extension of time for filing the Written Statement by the Defendant. The relevant provision states as under: –
“If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days, it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter……..”.
Both, Order VIII Rule 1 of CPC and Rule 4 of the High Court Rules provide that in the event the Written Statement is not filed within a period of 30 days from the date of service of summons, the court may extend the time for the filing of the same. In the case of VIII Rule 1 of CPC, the time period provided is another 60 days provided the total time period from the date of service of summons does not exceed 90 days. Rule 4 of the High Court Rules gives the court the discretion to extend the time for filing the written statement by a further period not exceeding 90 days thereby making the total time for filing the written statement to a total of 120 days from the date of service of the summons.
Both the provisions provide for granting an extension of time to the defendant to file the written statement. The CPC provides for 90 days whereas the High Court Rules provide for 120 days. The question that arises is which of the time limits would apply as there is a difference between the two provisions. The other question which is more relevant to a practicing advocate is, whether the court has the power to grant time beyond the prescribed 90 days or 120 days.
It has been a matter of some debate whether the time period provided by CPC or the High Court Rules are directory or are they mandatory in nature. In the event the time period provided is held to be directory in nature, the court is within its powers to extend the time for filing the written statement for such further period as it deems fit. However, if the time period provided for filing the written statement is held to be mandatory, the court cannot extend the time so provided beyond the maximum period stated in the relevant provision.
The first proviso to Order VIII Rule 1 of CPC uses the words ‘shall not be later than ninety days’ and on the other hand Rule 4 of the High Court Rules uses the words ‘extend the time for filing the same by a further period not exceeding 90 days, but not thereafter”. Rule 4 of the High Court Rules specifically mentions ‘but not thereafter’, which has not been said so in VIII Rule 1 of CPC.
The provisions of Order VIII Rule 1 of the CPC have come up for consideration before the courts in several matters.
In Kailash vs. Nankhu[i] and Salem Advocate Bar Association, Tamil Nadu v. Union of India[ii], the words ‘shall not be later than ninety days’ used in Order VIII Rule 1 of CPC were interpreted by the Supreme Court. The court after considering the said provision held that though the provision under Order VIII Rule 1 of CPC is couched in negative form, however it does not take away the power of the court to extend the period beyond 90 days. Thus, the provisions of Order VIII Rule 1 of CPC were held to be a procedural law and the time limit of 90 days specified therein was held to be directory and not mandatory in nature. This in essence meant that the court had the discretion to extend the time period for filing the Written Statement, if the court was satisfied that the extension was required.
Recently, in Gautam Gambhir vs. M/s Jai Ambey Traders & Ors.[i] the Delhi High Court was called upon to examine the applicability of the provisions of Order VIII Rule 1 of the CPC and Rule 4 of the High Court Rules and their interpretation. In the said case the Defendants had filed an Interlocutory Application seeking condonation of delay of 131 days in filing the Written Statement. The court noticed that the Apex Court had held the provisions of Order VIII Rule 1 of the CPC to be the directory in nature. However, in 2018 the High Court Rules had been framed and had come into effect. The Court noticed that the earlier rules did not provide for a specific time period for the filing of the Written Statement. Therefore, the provisions of Order VIII Rule 1 of the CPC were applicable. However, with the framing of the High Court Rules, the position changed. The Court observed that the Supreme Court in Iridium India Telecom Ltd vs. Motorola Inc.[ii] held that the rules framed by the High Courts would prevail over the provisions of the CPC, even if the said rules were inconsistent with the provisions of the CPC.
Having established that the High Court Rules will apply, the Court proceeded to examine the provisions of the Rule 4 of the High Court Rules. The High Court noticed that the words, ‘but not thereafter’, in the said Rule, were at the center of the controversy. In the event it was to be held that Rule 4 of the High Court Rules was not mandatory in nature, it would render the words ‘but not thereafter’ otiose. The High Court went on to hold that the provisions of Rule 4 of the High Court Rules were mandatory in nature and condonation of delay beyond the period of 120 days as provided in the said rules could not be granted by the court.
It was further held that the High Court Rules came into effect in 2018 after the Commercial Courts Act, 2015 (“Commercial Courts Act“) was notified. The High Court Rules provide for a maximum of 120 days for filing the Written Statement which was the same as that provided by the Commercial Courts Act. The Court held that the High Court Rules would be applicable to all suits filed on the original side of the Delhi High Court. It was also clarified that the maximum time limit for filing of a written statement by the defendant would be 120 days irrespective of whether the suit was a commercial suit coming under the Commercial Courts Act or an ordinary suit. In no event was the court entitled to grant an extension to file the written statement beyond 120 days.
[i] Justiniano Augusto De Piedada v. Antonio Vicente De Fonseca & Ors., AIR 1979 SC 984;
R.S Raghunath v. State of Karnataka & Anr., AIR 1992 SC 81;
Maya Mathew v. State of Kerala & Ors., AIR 2010 SC 1932;
Pankajakshi and Ors. V. Chandrika & Ors., AIR 2016 SC 1213.
[ii] (2005) 4 SCC 480.
[iii] (2005) 6 SCC 344.
[iv] IA 2906/2019 in CS (OS) 1149/2018, decided on 06.08.2020.
[v] AIR 2005 SC 514.