No Provision Under CPC To Extend Time For Filing Written Statement Due To Pendency Of Miscellaneous Application: Bombay High Court

The Goa Bench of Bombay High Court observed the Civil Procedure Code (CPC) does not provide for any exclusion or extension of time period during which a miscellaneous application was pending while calculating the condonation of delay in filing a written statement.

Background of case

A single judge bench of Justice Bharat P. Deshpande was considering the petitioner's challenge to the Trial Court's order rejecting the petitioner/defendant's application for condonation of delay in filing the written statement.

The petitioner/defendant had received a summons from the Trial Court on 18.08.2022. The petitioner/defendant applied for an extension of time to file the written statement which was granted. However, without filing the written statement, the petitioner filed the application under Order VII Rule 11 of CPC (application for rejection of plaint) on 05.11.2022, which was rejected by the Trial Court.

After this application was rejected, the petitioner filed an application for condonation of delay on 03.03.2023 together with a written statement. But the Trial Court did not condone the delay in filing the written statement.

The petitioner sought condonation of delay on the ground that its in-house advocate had advised that once an application under Order VII Rule 11 CPC is filed, there is no need to file a written statement until the application is decided. The petitioner also stated that it was advised that filing a written statement would be unnecessary as the plaint was expected to be rejected.

Further, the petitioner claimed that in the application for condonation of delay, the period during which the application under Order VII Rule 11 was pending should be excluded from the calculation of delay. Thus, the petitioner/defendant calculated the delay as being only 14 days.

Exclusion of time period while calculating delay

The High Court stated that under Order VIII Rule 1 CPC, a written statement must be filed within 30 days of receiving summons. However, the court may extend this period up to 90 days, by recording its reasons for doing so.

In the present case, it noted that the period of 30 days to file a written statement expired on 17.09.2022. Even though extension was granted, the company did not file the written statement on time. The Court remarked that “It is necessary to note here that along with such an Application for rejection of the plaint, the Petitioner/Defendant could have easily filed the written statement.”

Regarding the petitioner's contention on the exclusion of time period, the Court observed that there is no provision which allows for such exclusion while calculating the condonation of delay.

“There is no such provision in the CPC or any pronouncement of the Court for the purpose of exclusion of such period for filing the written statement.”

It stated that nowhere in CPC it is provided that on filing a miscellaneous application, the time to file the written statement can be extended or excluded.

It noted that the calculation of the petitioner/defendant was on the wrong presumption and noted that the petitioner filed the written statement after a period of 160 days.

Grounds sought for condonation of delay

On the grounds sought by the petitioner for condonation of delay, the Court stated that ignorance of the law or incorrect advice is not a sufficient ground. Further, blaming the in-house advocate is not proper when that advocate is not given an opportunity to defend or explain their actions, the Court said. It was held:

“Ignorance of law or wrong advise is not sufficient ground, when no affidavit of in-house Advocate is placed on record to justify such reason. Blaming an Advocate is not proper when such Advocate is having no opportunity to defend or to explain.”

The Court stated that even though the provisions of Order VIII Rule 1 CPC are merely directory, sufficient reasons must be provided by courts for extending the time for filing a written statement.

It also stated that while exercising its supervisory jurisdiction under Article 227, the Court has to determine whether the impugned order suffers from any illegality.

In the present case, the Court held that the Trial Court's order does not suffer from any illegality. It asserted that the trial court's order was well reasoned, noting that the grounds presented for condonation of delay were insufficient to warrant the exercise of discretionary power.

The Court thus dismissed the petition.

Case title: Federal Brands Ltd. vs. Cosmos Premises Pvt. Ltd. (Writ Petition No. 105 of 2024)

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