CPC | 120 Days Period For Filing Written Statement Mandatory In Jammu & Kashmir After Abrogation Of Article 370, Court Has No Power To Extend It: High Court

This period is hence mandatory in nature, in view of an amendment that has been brought in the Civil Procedure Code, 1908, so far as its applicability to the Union Territory of Jammu & Kashmir is concerned, the bench added. "

Ordinarily, Order VIII Rule 1 of the Code is directory and not mandatory which means that it is up to the court’s discretion to provide additional time beyond 120 days and depends on case to case basis.

A bench comprising Justice Wasim Sadiq Nargal observed,

“In the light of the Jammu & Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020 and S.O. 1123 (E) of 2020 dated 18th March 2020, whereby the Order-VIII Rule-1 CPC was amended and period of filing the written statement was fixed as 120 days, failing which, it was emphatically made clear that defendant shall forfeit the right to file the written statement and the Court by no stretch of imagination shall allow the written statement to be taken on record...S.O. 1123 (E) of 2020 dated 18th March, 2020, after abrogation reflects the legislative intent to take away the discretion of the Court in extending the time for filing the written statement...”

The observations came to be made in a plea filed under Article 227 of the Constitution of India challenging the order passed by the 1st Additional District Judge, Jammu, which had dismissed the application seeking condonation of delay in filing the written statement.

In the instant matter, the respondents had filed a suit seeking specific performance of an agreement, and the petitioner had sought condonation of delay in filing the written statement due to the death of his grandmother and the illness of his mother. However, the Court found the application to be devoid of merit as the petitioner had failed to file the written statement within the statutory period of 120 days and had not annexed any documents to substantiate the cause.

Adjudicating upon the matter, Justice Nargal noted that after the abrogation of Article 370 in August, 2019, CPC was made applicable to the Union Territory of Jammu and Kashmir as well and in terms of S.O. 1123 (E) of 2020 dated 18th March, 2020, certain amendments have been brought in the Civil Procedure Code, 1908, so far as its applicability to the Union Territory of Jammu & Kashmir is concerned. In terms of S.O. 1123 (E) of 2020 dated 18th March, 2020, maximum period of 120 days was available to the defendant to file the written statement failing which it was made clear that the defendant will forfeit the right to file written statement and the Court by no stretch of imagination shall allow the written statement to be taken on record, the bench underscored.

Highlighting the language of the provisions of the Commercial Court's Act where the period of 120 days has been prescribed for filing the written statement has been held to be mandatory by the Apex Court, Justice Nargal observed that by way of amendment in terms of S.O. 1123 (E) of 2020 dated 18th March, 2020, the same language has been incorporated in Civil Procedure Code, 1908 so far as its applicability to the Union Territory of Jammu and Kashmir is concerned and hence Order-VIII Rule-1 CPC was amended and period of filing the written statement was fixed as 120 days, failing which, it was emphatically made clear that defendant shall forfeit the right to file the written statement and the Court by no stretch of imagination shall allow the written statement to be taken on record.

Expounding further on the subject the bench explained that the amendment to the Civil Procedure Code which has been brought out by the Schedule to the Act seek to fill the gap which was existing in Civil Procedure Code and substituted 2nd proviso to Order-5 Rule-1 and the substituted proviso to Order-VIII Rule-1 which is pari materia to S.O. 1123 (E) of 2020 dated 18th March, 2020 which has been made applicable to the Union Territory and provides an outer limit of 120 days from the date of service of the summons up to which the Court can grant time to file written statement.

Pointing to the fact that the defendant before the Trial Court filed the written statement beyond the period of limitation prescribed under Order-VIII Rule-1 CPC applicable to the Union Territory of Jammu and Kashmir the bench said that the Court below has rightly held that it cannot extend period further 120 days in allowing the written statement to be taken on record. Besides, the Court below has also held that the disability suffered by the defendant in filing written statement within the time prescribed, no sufficient cause has been set out for filing the written statement and nothing has been placed on record to substantiate the grounds urged in the application seeking condonation of delay with regard to illness of his mother, the bench recorded.

In light of the said legal position, coupled with the peculiar facts and circumstances of the case, the bench upheld the order passed by the 1st Additional District Judge, and accordingly, dismissed the petition.

Case Title: Rajinder Singh Manhas Vs Anil Gaind & Anr.

Citation: 2023 LiveLaw (JKL) 98

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