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TIME LIMIT FOR FILING OF WRITTEN STATEMENT IN SUITS IN DELHI

Divjyot Singh, Partner
Nipun Dwivedi, Principal Associate

Date | Version October 11, 2022| 1.0
Keywords Written Statement’, ‘Order VIII Rule 1’, ‘extension of time’, ‘Mandatory’, ‘directory’ ‘discretion, ‘special law’, ‘St. Stephens College and Ors. vs. The University of Delhi’, ‘R.S Raghunath v. State of Karnataka and Anr.’, ‘Atma Ram Properties Pvt Ltd vs. The Oriental Insurance Co. Ltd’, ‘A Navinchandra Steel Pvt Ltd. vs. SREI Equipment Finance Ltd and Ors.’, ‘Kailash vs. Nankhu’, Salem Advocate Bar Association, Tamil Nadu v. Union of India ‘Gautam Gambhir vs. M/s Jai Ambey Traders & Ors.’ and ‘Iridium India Telecom Ltd vs. Motorola Inc.’
List of Legislation Referred.
  • The Code of Civil Procedure Code, 1908
  • The Delhi High Court (Original Side), Rules 2018
Jurisdiction India

 

Introduction

Any law which has general applicability and lays down a general set of rules is considered to be a general law. 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 time and again held that between a special law and general law, the special law shall prevail1.

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. It is to be noted that CPC is general procedural law and the High Court Rules are special provisions framed by the High Court to regulate its own procedure in exercise of its ordinary original civil jurisdiction.

Both Order VIII Rule 1 of the CPC and Rule 4 of Chapter 7 of the High Court Rules deal with the number of days within which a written statement must be filed in response to the plaint filed by the plaintiff. However, when it comes to extending the period to file the written statement beyond 30 days, the interpretation of both the provisions is different.

Legislative Framework

Order VIII Rule 1 of the CPC provides that the written statement must be filed within a period of thirty (30) days from the date of service of summons. Order VIII Rule 1 of the CPC then provides for an extension of time for the filing of the written statement. The first proviso to the Rule reads 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 provides that the written statement must be filed within a period of thirty (30) days from the date of service of summons. Rule 4 also provides for 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 Order VIII Rule 1 of CPC, the time 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.

Therefore, both the provisions provide for granting an extension of time to the defendant to file the written statement. The CPC provides for a total of 90 days whereas the High Court Rules provide for a total of 120 days. The question that arises is, in a suit pending before the courts in Delhi (whether before the Civil Judge or the Additional District Judge or the High Court) which of the time limits would apply as there is a conflict 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 total time period of 90 days or 120 days.

It has been a matter of some debate in the past, whether the time period provided by CPC or the High Court Rules are discretionary or are they mandatory in nature. In the event the time provided is held to be discretionary 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 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. Nankhu2 and Salem Advocate Bar Association, Tamil Nadu v. Union of India3, 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 for filing of the written statement beyond 90 days. The same view was again taken by the Supreme court in Bharat Kalra vs. Raj Kishan Chabra4 wherein the court condoned the delay of 193 days in filing of the written statement. Thus, Order VIII Rule 1 of CPC has been held to be discretionary and not mandatory in nature. This in essence means that the court has the discretion to extend the time period for filing the written statement, if the court was satisfied that the extension was required beyond the period of 90 days.

The Delhi High Court in Gautam Gambhir vs. M/s Jai Ambey Traders & Ors.5 had an occasion 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. The court held that the High Court Rules being validly framed must be read as part of the Delhi High Court Act. The court took the que from the judgment passed by the Supreme Court in Chief Forest Conservator (Wildlife) & Ors. v. Nisar Khan6 wherein it was held that when rules are validly framed, they should be treated as a part of the Act. The court further opined that the Delhi High Court Act, being a special law will prevail over CPC and even over the Commercial Courts Act. The court concluded that the CPC being a general law, will not prevail over the Delhi High Court Act and rules framed thereunder which constitute a special law. In this regard the court placed reliance upon Iridium India Telecom Ltd vs. Motorola Inc7. wherein the Supreme Court 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 High Court in Gautam Gambhir (supra) 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.

Conclusion

The position of law therefore with respect to the time limit for filing written statement in suits in Delhi is settled. The High Court Rules provide that if the court is satisfied, it may extend the time for filing the written statement for a maximum of 120 days for filing the written statement. This is the same time that is provided by the Commercial Courts Act. The maximum time limit for filing of a written statement would be 120 days irrespective of whether the suit is a commercial suit coming under the Commercial Courts Act or an ordinary suit and in no event the court is entitled to grant an extension to file the written statement beyond the period of 120 days.

This is the position of law for all suits that are governed by the Delhi High Court Rules. However, for suits not governed by the Delhi High Court Rules and only governed by the CPC, the courts have the discretion to extend the time for filing the Written Statement beyond the period of 90 to such time as the court deems fit.

Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

1 St. Stephens College and Ors. vs. The University of Delhi and Ors., AIR 1992 SC 1630; R.S Raghunath v. State of Karnataka and Anr., AIR 1992 SC 81.
2 2005) 4 SCC 480.
3 (2005) 6 SCC 344.
4 Civil Appeal No. 3788 of 2022 (Arising out of SLP (C) No. 63 of 2022) decided on 09.05.2022.
5 IA 2906/2019 in CS (OS) 1149/2018, decided on 06.08.2020.
6 AIR 2003 SC 1867.
7 AIR 2005 SC 514.

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