(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure is not completely taken away.
(v) Though Order VIII, Rule 1 of the Code of Civil Procedure 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.
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
Citation; AIR 2014 SC897,(2014)2SCC302, 2014 (1) SCJ 337
Dated;JANUARY 02, 2014
1. Leave granted.
2. This
judgment
appeal
and
has
order
been
dated
filed
12th
impugning
November,
the
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
Rs.39.90
of
the
lakhs
suit
based
agreement/understanding.
filed
on
for
recovery
alleged
of
oral
The applications filed by
the appellant were dismissed by the learned Single
Judge of the High Court on 3rd August, 2010.
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
alleged to
being
have
based
been
on
an
entered
oral
into
agreement
between
the
appellant and Mr. Maheshwari, in case the appellant
was
to
disclose
file
his
his
written
defence,
has
statement
been
that
rejected
would
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
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.
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
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.
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
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