Madras HC Directs Stipulation Of Outer Time Limit For Filing Counter Affidavits In Writ Petitions [Read Order]

“The Amended Civil Procedure Code stipulates 90 days time for filing written statement in a Civil Suit. When such an outer time limit has been stipulated in the amended Civil Procedure Code, it is highly warranted that the same procedure is to be adopted in the writ petitions also, enabling the High Courts to deal with the matter, soon after the cases are listed for final hearing.”

Justice S.M. Subramaniam of Madras High Court has directed the Registrar General to restore rule providing time limit of three months to file counter affidavits in writ petitions.

In the alternative, it has also been directed to effect necessary amendments in the High Court Rules, enabling the parties to the writ petitions to file their counter affidavits and the documents within the time to be stipulated in the Rule Nisi Notice being issued by the high court.

The judge was considering a writ petition filed in 2016 challenging a Tahsildar’s order, in which no counter affidavit has been yet filed by the state.

The court observed that it is frequently noticed that the counter affidavits and related documents are not filed in large number of writ petitions now pending before the high court. “The State officials and the competent authorities, who all are the respondents in the writ petitions, are not initiating any effective steps to file counter affidavits and the related documents and produce files, wherever necessary within a reasonable period of time. The respective learned counsels appearing on behalf of the respondents in these writ petitions are in the habit of seeking adjournments frequently and on many occasions, the writ petitions are adjourned for filing counter in a routine manner,” it said.

Suspecting a possibility of collusion, the court said it is very much important to ensure that counter statements are filed by the respondent officials within a reasonable period of time. “There is a possibility of negligence and dereliction of duty is also to be taken note of. Non-filing of the counter affidavits may create many doubts in respect of the litigations to be adjudicated before the Courts. The idea of the litigants may to get an Ex-parte order in their favour without knowing the stand of the respondents in some cases. After a reasonable period of time, the Courts have no option, but to deal with the matter and pass orders on merits. Such circumstances should not cause any prejudice to the public interest. When the State is not representing its case, then it is to be construed that the “State” fails in its duty to protect the Constitutional mandates and perspectives,” it said.

The court noticed that the Rule 3-A of Rules to Regulate Proceedings under Article 226, which provides three months time limit for filing counter affidavit, was suspended by the high court in 2013.  “The reasons for the suspension of the said Rule are not known to this Court. But, this Court is of a considered opinion that an outer time limit for filing of the counter affidavits and documents to be fixed to the parties to the writ petitions. So also, the outer time limit to be fixed by the High Court is to be informed to the parties to the writ petitions through the Rule Nisi Notice issued by the High Court, enabling the respondents to know that the counter affidavits and the documents are to be filed within the time limit prescribed in the notice,” the court added.

The bench, also referring to amendment brought to Civil Procedure Code stipulating 90 days’ time for filing written statement in a civil suit, said the same procedure is to be adopted in the writ petitions also so that the high courts can deal with the matter soon after the cases are listed for final hearing.

The court then ordered: “Considering the importance of the issue, which is required for the effective hearings of the writ petitions under Article 226 of the Constitution of India, this Court direct the Registrar General, High Court of Madras, to initiate appropriate actions either to restore Rule 3-A of the Rules to Regulate Proceedings under Article 226 of the Constitution of India or to effect necessary amendments in the Rule, enabling the parties to the writ petitions to file their counter affidavits and the documents within the time to be stipulated in the Rule Nisi Notice being issued by the High Court. The Registrar General, High Court of Madras is directed to take all necessary actions in this regard for effective and speedy disposal of the writ petitions filed under Article 226 of the Constitution of India before the High Court.”