Order VIII Rule 1 CPC | Time Limit For Filing Written Statement Only Directory In Nature: Kerala HC Answers In Reference

The Kerala High Court recently held that the time limit fixed under Order VIII Rule 1 of the Code of Civil Procedure (C.P.C.) for filing a written statement is only directory in character, and not mandatory. 

A Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, perused various Apex Court precedents in arriving at its finding, and found favour in the submissions made by Advocates B.G. Bhasker and Biju Abraham appearing for the appellants. It observed, 

"when the Apex Court has expressed its opinion on the interpretation of a statutory provision, whether it forms part of the ratio or not, all the Courts will have to follow the opinion of the Apex Court in regard to the interpretation".

The factual background of the case would show that the plaintiffs had instituted a suit for a declaration that the Government Order, ordering dispossession of the plaintiffs from the suit premises was illegal and sought a consequential injunction to restrain the defendants from dispossessing the plaintiffs from the suit property, before the Additional Sub Court at Kozhikode. The copy of the plaint had been served on the Government Pleader on 3rd January 2017 as per Section 80 CPC, since the plaintiffs had requested urgent relief in the suit.

On 5th April 2017, the Additional Government Pleader filed an application to receive written statement after the condonation of delay of 47 days in filing the written statement. The plaintiffs raised objections in receiving the written statement after the outer limit of the period prescribed under Order VIII Rule 1 CPC. The Sub Judge however, condoned the delay after referring to various precedents in this regard. Proviso to Order VIII Rule 1 CPC mandates the defendants to file a written statement within 30 days. The provision further states that the Court has the power to receive written statement beyond 30 days, for reasons to be recorded in writing, but that the period is not to be later than 90 days from the date of service of summons.

This was thereupon challenged by the plaintiffs/petitioners before the Single Judge, who was of the opinion that in light of the various precedents of the Apex Court of India, the question as to which would be a binding precedent would have to be determined by the Division Bench of the High Court. 

The Division Bench thereupon, delved into the various Apex Court precedents in this regard, to find which amongst those would be binding upon all the Courts. 

In Dr. J.J. Merchant v. Shrinath Chathurvedi (2002), the Apex Court had observed that, "there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to".

However, the Court in the instant case found that this order had been made in the context of an order arising from the proceedings of the National Consumer Disputes Redressal Commission under the Consumer Protection Act, 1986.

"The Apex Court had in fact, in Dr.J.J. Merchant's case referred to Order VIII Rule 1 CPC and gave its opinion as above while considering similar provisions under the Consumer Protection Act", it was observed. 

In Kailash v. Nanhku & Ors. (2005), the Apex Court had found that the time limit fixed in Order VIII Rule 1 CPC was only directory in nature. Salem Advocate Bar Association v. Union of India (2005) was also decided by the Apex Court along the same lines, while considering the question as to whether the Court has any power or jurisdiction to extend the period beyond 90 days. 

In M/s. R.N. Jadi & Brothers & Ors v. Subhashchandra (2007), while holding the time limit to be directory in nature, the Apex Court however went on to hold that, "the extension beyond 30 days is not automatic and should be exercised with caution and further held that the extension of time beyond 90 days must be granted only based on the clear satisfaction of the court". 

In Liyakhath Ali v. H.N. Lohitheshwar (2004), the Single Judge Bench of the Karnataka High Court had observed that, the interpretation accorded by the Apex Court on a particular statutory provision, is binding on all the Courts.

"However, we have to note that when a point directly and specifically comes up for consideration before the Apex Court subsequently and the Apex Court decides the matter, the judgment of the subsequent Bench will have to be followed as a binding precedent", the Court observed in the instant case. 

In this light, it was found by the Court that in Kailash and Salem Advocate Bar Association decisions, the issue had been directly and specifically in question while it was not so in Dr. J.J. Merchant. 

"In Kailash's case itself, the Apex Court opined that the observations in Dr.J.J. Merchant's case are obiter. Once the Apex Court holds the view that the earlier judgment is obiter, it is not for the High Courts and the other Courts to treat it as a binding judgment. When there is a conflict between an obiter and a binding judgment, the Courts are not expected to follow the obiter, overlooking the binding judgment", the Court observed.

The Court thus found binding decisions to be an enunciation of the law, on a point directly and specifically arisen for consideration by the Apex Court.

It was thus held by the Court that, 

"The ratio in Kailash's case, Salem Advocate Bar Association's case etc. clearly would show that the question on interpretation of Order VIII Rule 1 CPC was directly and specifically involved in those cases. The opinion expressed in Dr.J.J. Merchant's case, indirectly, on interpretation of the proviso to Order VIII Rule 1 CPC is only an obiter and will not form part of a binding judgment. Hence, we answer the reference holding that the proviso to Order VIII Rule 1 CPC, fixing the time limit, is only directory".

The Registry was therefore directed to place the matter before appropriate Court for consideration of the original petition on merits.

Advocate B. Parthasarathy appeared as Amicus Curiae in the matter. 

Case Title: M.M. Madhavan Namboodiri & Ors v. The Tahsildar Thamarasseri & Ors. 

Citation: 2022 LiveLaw (Ker) 548

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