O.8 R.1 CPC | Right Accruing In Favor Of Plaintiff Due To Non-Filing Of Written Statement Within Stipulated Time Can Be Waived: J&K High Court

Emphasising that the right arises from a mandatory statutory provision under Order 8 Rule 1 of the Civil Procedure Code (CPC) a bench of Justice Sanjay Dhar clarified that this right is not a fundamental right and arises from a statutory provision that can be waived.

Background:

The case involved a dispute over land ownership. Chaman Lal, the petitioner, filed a suit against Mohd Sharief and Sudesh Kumar, seeking a declaration that sale deeds executed by Sharief's wife in favor of Kumar were null and void.

Lal challenged orders passed by the trial court that allowed the written statements of both defendants to be filed even though they were overdue. Lal's counsel argued that the trial court erred in accepting written statements from the defendants, as they were filed after the expiration of the 120-day period prescribed under Order 8 Rule 1 of CPC. It was contended that this period is mandatory and non-negotiable, and even a concession by the plaintiff's counsel would not legitimize the late submissions.

The defendants, on the other hand, presented differing arguments. Sharief contended that the limitation period for him began only after he received notice of the suit, while Kumar argued that the plaintiff's concession allowing the filing of his written statement waived his right to object.

Court Observations:

Considering the impact of the COVID-19 pandemic the court acknowledged the Supreme Court's directions excluding a specific period from limitation calculations due to the pandemic's hardships.

Commenting on the contention of the petitioner that the directions of the Supreme Court did not apply to the respondent Sharief as his counsel had been regularly appearing in the matter before the trial court the court said,

“It is correct that even prior to 01.03.2022, defendant No.1 did appear before the trial Court through his counsel, but during the proceedings prior to 01.03.2022, the counsel for defendant No.1 has throughout sought time to file the written statement and except filing vakatnama…which means that there is no material on record to show that Covid-19 pandemic conditions did not prevent defendant No.1 from interacting with his counsel”.

Thus the court held that this exclusion had benefitted Sharief, placing his written statement within the revised time limit.

On the question of waiver, the court held that the right accrued to the plaintiff due to the defendant's missed deadline was not a fundamental right and arose from a statutory provision (Order 8 Rule 1 of CPC) that could be waived. The bench added,

“It is a well known position of law that even a right under a mandatory provision can be waived. Therefore, once the counsel for the plaintiff expressed his no objection to the filing of written statement by defendant No.2, the Court had no option, but to take the same on record”.

Highlighting that the plaintiff's counsel had expressly agreed to the filing of the written statement beyond the 120-day limit subject to a cost of Rs. 2000, the court termed this as a conscious waiver of the right on the part of the plaintiff accruing due to the late filing.

The court thus dismissed the petition, noting that there was no patent perversity or gross illegality in the trial court's orders.

Case Title: Chaman Lal Vs Sh. Mohd Sharief

Citation: 2024 LiveLaw (JKL) 138

Mr. R.K.S.Thakur Advocate appeared for the petitioner, Ms Zoya Bhardwaj Advocate and Mr. Rakesh Chargotra Advocate appeared for the respondents.

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