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CASE NO.: Appeal (civil)  2925 of 2007

PETITIONER: M/s R.N. Jadi & Brothers & Ors

RESPONDENT: Subhashchandra

DATE OF JUDGMENT: 10/07/2007

BENCH: P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.    2925           OF 2007 (Arising out of S.L.P. (C) No. 14606 of 2006)

P.K. BALASUBRAMANYAN, J.

1.              I respectfully agree.  The High Court was in error in  setting aside the order of the trial court accepting the written  statement filed by the defendants, in the circumstances of the  case.  I am prompted to make a few observations in the  context of the discussion by my learned brother on the scope  of the related provisions of the Code of Civil Procedure.

2.              It is notorious that suits were being dragged on by  defendants in suits by not filing their written statements  within a reasonable time.   We are not unaware of cases where  written statements were not filed even within two or three  years of the filing of the suits.  The control expected to be  exercised by courts, by the scheme of the Code, was not being  exercised leading to slackness in the matter of filing of  pleadings in defence.  It was in that context that the relevant  provisions of the Code of Civil Procedure were amended, the  laudable object being to avoid delay in the disposal of suits.   The Amended Order VIII Rule 1 fixes a time limit for the filing  of written statements.  But, Parliament did not stop with  amending Order VIII Rule 1 alone i.e. introducing a time limit  for filing written statements and restricting the power of the  court to grant extension of time for filing written statements as  90 days from the date of service of summons.   The power for  extension of time granted to the court under Section 148 of  the Code was curtailed by introducing an outer time limit of  30 days from the date originally fixed or granted.  Thus, the  legislative intent to limit or curtail the power of the court to  extend the time for filing a written statement is obvious from a  conjoint reading of these provisions.

3.              In addition to the time limit prescribed in Order VIII  Rule 1 of the Code, it is provided in Order V Rule 1 that the  summons issued to the defendant should itself provide that he  has to appear and file his written statement within one month  of receipt of it and limiting the power of the court to extend the  time for written statement to 90 days.  The summons is to be  accompanied by a copy of the plaint.  It simultaneously  introduced Rule 14 to Order VII providing that where the  plaintiff sues upon a document or relies upon a document in  his possession or power, in support of his claim, he shall enter  such documents in a list and shall produce it in court when  the plaint is presented by him and shall at the same time

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deliver the document and copy thereof to be filed with the  plaint.  Sub-rule (3) was introduced to provide that if the  document is not included in the list, or is not produced with  the plaint, it was not to be produced without the leave of the  court and without the leave of the court it shall not be received  in evidence on his behalf at the hearing of the suit.

4.              In such a position, normally no injustice would be  caused to the defendant in insisting upon his filing the written  statement at least within 90 days of having received the  summons in the suit.  I think that it would be proper to avoid  an interpretation that may tend to thwart the legislative intent  in such circumstances.   

5.              It is true that procedure is the handmaid of justice.   The court must always be anxious to do justice and to prevent  victories by way of technical knock-outs.  But how far that  concept can be stretched in the context of the amendments  brought to the Code and in the light of the mischief that was  sought to be averted is a question that has to be seriously  considered.  I am conscious that I was a party to the decision  in Kailash vs. Nankhu and others (2005 (4) SCC 480) which  held that the provision was directory and not mandatory   But  there could be situations where even a procedural provision  could be construed as mandatory, no doubt retaining a power  in the court, in an appropriate case, to exercise a jurisdiction  to take out the rigor of that provision or to mitigate genuine  hardship.  It was in that context that in Kailash vs.  Nankhu  and others (supra) it was stated that the extension of time  beyond 90 days was not automatic and that the court, for  reasons to be recorded, had to be satisfied that there was  sufficient justification for departing from the time limit fixed by  the Code and the power inhering in the court in terms of  Section 148 of the Code.  Kailash is no authority for receiving  written statements, after the expiry of the period permitted by  law, in a routine manner.

6.              A dispensation that makes Order VIII Rule 1  directory, leaving it to the courts to extend the time  indiscriminately would tend to defeat the object sought to be  achieved by the amendments to the Code.  It is, therefore,  necessary to emphasize that the grant of extension of time  beyond 30 days is not automatic, that it should be exercised  with caution and for adequate reasons and that an extension  of time beyond 90 days of the service of summons must be  granted only based on a clear satisfaction of the justification  for granting such extension, the court being conscious of the  fact that even the power of the court for extension inhering in  Section 148 of the Code, has also been restricted by the  legislature.  It would be proper to encourage the belief in  litigants that the imperative of Order VIII Rule 1 must be  adhered to and that only in rare and exceptional cases, the  breach thereof will be condoned.  Such an approach by courts  alone can carry forward the legislative intent of avoiding delays  or at least in curtailing the delays in the disposal of suits filed  in courts.  The lament of Lord Denning in ALLEN vs. SIR  ALFRED McALPINE & SONS [(1968) 1 All E.R. 543] that law’s  delays have been intolerable and last so long as to turn justice  sour, is true of our legal system as well.  Should that state of  affairs continue for all times?