Time Limit Of 90 Days For Written Statement Under Order VIII Rule 10 Directory, But Courts Must Use The Discretion Sparingly : Gujarat High Court

Background

The Petitioner-Defendant prayed for setting aside the orders of the Additional Civil Judge, Bordeli and the Additional District Judge, Chhotaudepur ('ADJ') which closed the right of the Petitioner-Defendant to file a written statement in a suit involving the partition of suit property. The Petitioner-Defendant was duly served with summons but did not file the written statement within time. The ADJ observed that the filing of written statement beyond a period of 120 days is not permitted.

The Petitioner-Defendant contended that per the Supreme Court's decision in Salem Advocate Bar Association, Tamil Nadu vs Union of India [MANU/SC/0450/2005], the period of 120 days is directory and not mandatory. Further, the trial has not yet commenced and therefore, filing the written statement at this stage would not jeopardize the rights of the Plaintiff. Additionally, the Defendant Nos 1 and 3 are deceased and their legal heirs are yet to be brought on record and therefore, the rejection of the written statement would affect the rights of the Defendants adversely. The Petitioner-Defendant also cited the reason of the pandemic and the consequent restrictions for the delay. The Petitioner-Defendant indicated readiness to bear all costs for filing the written statement in a delayed manner.

Judgement

The Bench while interpreting Order VIII Rule 1, observed that the word 'shall' ordinarily implies the mandatory nature of the provision, however, the context of this provision indicates that the time period of 90 days is directory. The Salem Advocate judgement also confirms the same. Additionally, it is well established that the objective of the rules of procedure is to advance the cause of justice and not defeat it. The Court observed:

"The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."

To support this interpretation, the Bench also studied Order VIII Rule 1 and Order VIII Rule 10 harmoniously. Rule 10 provision permits the Court to either pronounce the judgement against the Defendant upon failure to file the written statement or, pass any order it deems fit in relation to the suit. Thus, there is no restriction in Order VIII Rule 10 that after expiry of 90 days, further time cannot be granted. However, such extension of time can only be made in 'exceptionally hard cases' and the Courts should not nullify the time limit by extending it frequently and routinely. Lastly, the suit is yet to commence and keeping in view the pandemic and the necessary restrictions, the extension of time period will not affect the rights of the Plaintiff adversely.

Accordingly, the writ petition was allowed with exemplary costs on the Petitioner-Defendant.

Title: Rajendrabhai Maganbhai Koli vs Shantaben Maganbhai Koli
Citation: 2022 LiveLaw (Guj) 5