Court's Discretion To Extend Time To File Written Statement Beyond 120 Days Revoked By Amendments To J&K CPC: High Court
The Jammu and Kashmir and Ladakh High Court has held that in view of the substitution and addition of the proviso to Order VIII CPC, the legislature has taken away the discretion which was earlier vested with the court to extend the time to file the written statement beyond the 120 day period.Justice Javed Iqbal Wani highlighted the implication of the amendment. “The only inescapable...
The Jammu and Kashmir and Ladakh High Court has held that in view of the substitution and addition of the proviso to Order VIII CPC, the legislature has taken away the discretion which was earlier vested with the court to extend the time to file the written statement beyond the 120 day period.
Justice Javed Iqbal Wani highlighted the implication of the amendment.
“The only inescapable conclusion emerges from above is that if a defendant fails to file his written statement within the prescribed time provided under Order VIII Rule (1), the right to file same shall stand forfeited and the Court can in no situation allow the same to be taken on record.
The case in question involved a petitioner seeking the court's intervention to condone the delay in filing a written statement in response to a suit filed by the plaintiff. The plaintiff had initiated legal action in 2008, and despite several opportunities, the defendant failed to submit the necessary written statement within the stipulated timeframe.
The defendant's plea to extend the deadline was dismissed by the trial court, leading to the filing of an Article 227 petition in the High Court.
Justice Wani highlighted the principles under Article 227 as established by the Supreme Court in Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) and emphasised that the power of superintendence should be exercised sparingly and only in cases of patent perversity in lower court orders or when there is a manifest failure of justice.
The bench noted the recent amendments to the Jammu and Kashmir Civil Procedure Code dated 13.12.2018, which clarified the timelines for filing written statements.
Elaborating on these amendments Justice Wani explained that according to the updated provisions, if a defendant fails to file their written statement within the specified period of thirty days, they can be allowed to file it on a date determined by the court, not exceeding one hundred twenty days from the date of service of summons.
Importantly, after the expiration of one hundred twenty days from the date of service, the defendant forfeits the right to file the written statement, and the court cannot admit it on record, the bench underscored.
“In view of the substitution and addition of the Proviso supra to Order VIII CPC, the legislature has taken away the discretion which was earlier vested with the court to extend the time to file the written statement beyond the prescribed period”, the court said.
Commenting on the contention of the petitioner that these amendments applied only to suits of a commercial nature as defined in Section 2(c) of the Jammu and Kashmir Commercial Courts Act, the court clarified that similar amendments had been made in the CPC itself, underscoring the universal application of the stringent timelines.
“It is true that similar amendment in Code was made by virtue of Section 13 of the Commercial Courts Act, 1908 to the extent of its applicability to the suits of commercial nature, however, the similar amendment has been made as observed and referred in the preceding paragraphs in CPC itself as well”.
Due to these amendments and the consequent loss of discretion for the trial court, the High Court found that the exercise of its power of superintendence was not warranted.
As a result, the petition was dismissed, and the related applications were also rejected.
Case Title: Abdul Rehman Nath V/s Umar Mohammad Beigh
Citation: 2023 LiveLaw (JKL) 278