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O.VIII Rule 1 limitation V/s. O.VII Rule 11 CPC

Order VIII Rule 1 Written Statement:

The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense;
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

Thus the defendant should be vigilant. Once the writ of summons is served to the defendant, he should take necessary steps for drafting his defense along with all the documents that he relies on, in his defense and he should file the same in the court before completion of 30 days or as soon as possible in that period.

The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be should not be granted as a matter of routine and merely for asking more so when 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction.

It must be spelled out that a departure from the schedule prescribed by Order VIII, Rule 1 of the CPCode was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant, and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.

Once a prayer seeking time beyond 90 days for filing written statement is made in writing, the court may in its judicial discretion as well as on settled parameters of the law, and on such terms that may be imposed including the compensatory costs as well as producing an affidavit or medical certificate or other documentary evidence as prayed for in the application, grant the same. In no case, the defendant shall be permitted to seek an extension of time where the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for (i) to deter the defendant from seeking time casually, (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

D Parikh & Associates (Law Firm)

In Salem Bar Association:
It is observed by the Hon'ble Apex Court that: ' 21. ..There is no restriction in Order 8 Rule 10 that after the expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order about the suit as it thinks fit'.

Therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statements is a directory. Having said so, we wish to make it clear that the order extending time to file a written statement cannot be made in routine.

The time can be extended only in exceptionally hard cases. While extending the time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised to nullify the period fixed by Order 8 Rule 1.'

In Atcom Technologies Limited Vs. Y.A.Chunawala and Company and others, (2018) 6 SCC 639, it is observed by the Hon'ble Apex Court that:
'21.In such a situation, onus upon the defendant is of the higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone the delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons was not served till 2009?'

It is now well settled that:
  1. Order 8 Rule 1 CPC is a provision which deals with the procedural law and not substantive right of the parties;
  2. the provision though couched in a negative language is not mandatory but directory;
  3. the court has enough power to condone the delay in filing written statement even beyond the stipulated period;
  4. however, it could be for exceptional reasons beyond the control of the party and only when the court thinks that by condoning the delay, it would advance the cause of justice; and
  5. in such a case, the plaintiff should be adequately compensated by cost.

Order VII Rule 11 Rejection of plaint:

The plaint shall be rejected in the following cases:
  1. Where it does not disclose a cause of action
  2. Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;
  3. where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
  4. Where the suit appears from the statement in the plaint to be barred by any law;
  5. Where it is not filed in duplicate;
  6. Where the plaintiff fails to comply with the provisions of Rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

It is settled law that once an application is filed under Order 7 Rule 11 of the Code of Civil Procedure; the Court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint is only to be rejected at the threshold.

The trial court can exercise the power at any stage of the suit- before registering the plaint or after issuing summons to the Defendant at any time before the conclusion of the trial. The only restriction is that the consideration of the application for rejection should not be based on allegations made by Defendant in his written statement or based on allegations in the application for rejection of the plaint. The court has to consider only the plaint as a whole, and in case, the entire plant comes under the situations covered by Order VII Rule 11(a) to (f) of the Code of Civil Procedure, the same has to be rejected.

Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137.

In R.K.Roja v. U.S.Rayudu and Ors, the Hon'ble Apex Court categorically held that:' In Salimbhai Case(supra), this Court has also held that 'A direction to file the written statement without deciding the application under Order VII Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction of the trial court.' However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 of the Code of Civil Procedure cannot be made as a ruse for retrieving the lost opportunity to file written statement'.

Order VII Rule 11 proceedings are independent of the filing of a written statement once a suit is filed. Order Rule 1 CPC would in no manner get extended or compromised for the reason that the defendant had applied to Order 7 Rule 11 CPC and it remained pending beyond the period of 120 days from the date of service of summons upon the defendant. If the defendant chooses to take risk of not filing the written statement while his application is ultimately rejected.

In SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors. reported in 2019 (12) SCC 210 Hon'ble Apex Court has laid down the ration that 'Beyond one hundred and twenty days from the date of service of summons, the Defendant shall forfeit the right to file written statement and the Court shall not allow the written statement to be taken on record.'

Thus after the R.K.Roja v. U.S. Rayadu and Anr. (2016) 14 SCC 275 and SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors. 2019 (12) SCC 210, the issue is the well-settled filing of an application under Order 7 Rule 11 should not be the reason to extend the time for filing written statements beyond 120 days under Order 8 Rule 1.

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