2007 JTR(SC) 413
2007 53 AIC 103 ; 2007 3 AIR(Bom)(R) 582 ; 2007 3 AIR(Kar)(R) 383 ; 2007 AIR(SC) 1574 ; 2007 AIR(SCW) 2311 ; 2007 3 ALD(SC) 125 ; 2007 67 AllLR 782 ; 2007 3 AllMR(SC) 324 ; 2007 3 AWC 2527 ; 2007 3 BomCR(SC) 53 ; 2007 2 CHN(SC) 173 ; 2007 2 CivCC 530 ; 2007 4 CivLJ 733 ; 2007 2 CriLR(Cal) 173 ; 2007 1 DNJ 305 ; 2007 3 ICC 640 ; 2007 2 ISJ(Banking) 81 ; 2007 3 MLJ 832 ; 2007 2 RCR(Civ) 858 ; 2007 1 RCR(Rent) 501 ; 2007 103 RD 110 ; 2007 1 RentLR 696 ; 2007 5 Scale 171 ; 2007 14 SCC 431 ; 2007 4 SCR 471 ; 2008 1 WLC 300 ; 2007 3 Supreme 291
2007(3) Supreme 291
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. Arijit Pasayat & Lokeshwar Singh Panta, JJ.
M/s. Aditya Hotels (P) Ltd.—Appellant
versus
Bombay Swadeshi Stores Ltd. & Ors.—Respondents
Civil Appeal No. 1572 of 2007
(Arising out of SLP (C) No. 7644 of 2006)
Decided on 26-3-2007
Counsel for the Parties :
For the Appellant : Ms. Seema Bangari, Ms. Anshul Singh and Dr. Kailash Chand, Advocates.
For the Respondents : Ms. S.R. Mishra, Vimal Chandra S. Dave and Ms. Neelam Kalsi, Advocates.
IMPORTANT POINT
Extension of time, for filing written statement under Order VIII Rule 1 CPC shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by Court.
Act Referred :CIVIL PROCEDURE CODE : O.8 R.1
(A) The Civil Procedure Code, Order VIII, Rule 1, as amended w.e.f. 1.7.2002, governs the filing of written statements by defendants in civil suits, prescribing a default period of thirty days from service of summons, extendable only upon satisfactory reasons recorded in writing where exceptional circumstances beyond the defendants control demand departure from the schedule. The impugned order passed by the trial Small Cause Court and summarily affirmed by the High Court under Article 227 of the Constitution falls under this framework, where the respondents filed the written statement after a delay of 142 days without any stated justification, and the courts below failed to record any reasons for excusing the delay or exercising discretion favourably. The extension of time is not a matter of right but an exception, available only to prevent grave injustice and not for laxity or gross negligence.
(B) The case underscores that the extension of time to file a written statement is an exception to the rule, must be founded on recorded reasons demonstrating exceptional circumstances, and cannot be granted routinely. Courts must vigilantly ensure compliance with the time schedule, and costs may be imposed both to deter unwarranted delays and to compensate the plaintiff. A discretionary order under Article 227 is maintainable only if the exercise of discretion is supported by clear and intelligible reasons.
Facts of the case:
The appellant instituted Civil Suit No. 59 of 2005 seeking vacant and peaceful possession of suit premises. Summons were served, and the respondents were granted time to file a written statement, which was delayed beyond the prescribed period. After multiple requests, the written statement was filed 142 days later. The trial Court, without recording reasons, permitted it subject to payment of costs, a decision challenged by the appellant before the High Court, which dismissed the petition, holding that the order was discretionary.
Findings of Court:
Neither the trial Court nor the High Court provided any reasons for accepting the written statement after the expiry of the time limit, thereby failing to satisfy the requirement of recording reasons for extension under Order VIII Rule 1 and the principles laid down by this Court.
Issues:
Whether the trial Court and the High Court were justified in exercising discretion to permit filing of written statements after 142 days of the expiry of the prescribed period without recording reasons. Whether the impugned order suffers from an error of law justifying interference under Article 227.
Ratio Decidendi:
Extension of time to file written statements is permissible only in exceptional circumstances with reasons recorded in writing; neither the trial nor the appellate Court indicated any such reasons, so the discretion was not properly exercised, warranting interference and setting aside of the impugned orders.
Result:
The appeal is allowed, the orders of the trial Court and the High Court are set aside, and the matter is remitted to the trial Court for fresh consideration in light of the principles laid down.
(A) The Civil Procedure Code, Order VIII, Rule 1, as amended w.e.f. 1.7.2002, governs the filing of written statements by defendants in civil suits, prescribing a default period of thirty days from service of summons, extendable only upon satisfactory reasons recorded in writing where exceptional circumstances beyond the defendants control demand departure from the schedule. The impugned order passed by the trial Small Cause Court and summarily affirmed by the High Court under Article 227 of the Constitution falls under this framework, where the respondents filed the written statement after a delay of 142 days without any stated justification, and the courts below failed to record any reasons for excusing the delay or exercising discretion favourably. The extension of time is not a matter of right but an exception, available only to prevent grave injustice and not for laxity or gross negligence.
(B) The case underscores that the extension of time to file a written statement is an exception to the rule, must be founded on recorded reasons demonstrating exceptional circumstances, and cannot be granted routinely. Courts must vigilantly ensure compliance with the time schedule, and costs may be imposed both to deter unwarranted delays and to compensate the plaintiff. A discretionary order under Article 227 is maintainable only if the exercise of discretion is supported by clear and intelligible reasons.
Facts of the case:
The appellant instituted Civil Suit No. 59 of 2005 seeking vacant and peaceful possession of suit premises. Summons were served, and the respondents were granted time to file a written statement, which was delayed beyond the prescribed period. After multiple requests, the written statement was filed 142 days later. The trial Court, without recording reasons, permitted it subject to payment of costs, a decision challenged by the appellant before the High Court, which dismissed the petition, holding that the order was discretionary.
Findings of Court:
Neither the trial Court nor the High Court provided any reasons for accepting the written statement after the expiry of the time limit, thereby failing to satisfy the requirement of recording reasons for extension under Order VIII Rule 1 and the principles laid down by this Court.
Issues:
Whether the trial Court and the High Court were justified in exercising discretion to permit filing of written statements after 142 days of the expiry of the prescribed period without recording reasons. Whether the impugned order suffers from an error of law justifying interference under Article 227.
Ratio Decidendi:
Extension of time to file written statements is permissible only in exceptional circumstances with reasons recorded in writing; neither the trial nor the appellate Court indicated any such reasons, so the discretion was not properly exercised, warranting interference and setting aside of the impugned orders.
Result:
The appeal is allowed, the orders of the trial Court and the High Court are set aside, and the matter is remitted to the trial Court for fresh consideration in light of the principles laid down.
JUDGMENT
Dr. Arijit Pasayat, J.—Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court dismissing the Writ Petition filed by the appellant holding that the order passed by the trial Court was a discretionary one. The trial Court by its order dated 9.9.2005 granted permission to the respondents to file written statement subject to payment of costs of Rs.2000/-. The said order was passed in Civil Suit No. 59/2005 by the Small Cause Judge, Pune.
3. Background facts in a nutshell are as follows:
Appellant filed Civil Suit No.59 of 2005 in the Court of Small Cause Judge, Pune, inter-alia seeking vacant and peaceful possession of the suit premises. The suit was filed on 24.12.2004. The Small Cause Judge, Pune, issued summons to the respondents in the suit which were served on 22.3.2005. On 25.4.2005 counsel for the respondents filed vakalatnama and prayed for time to get information from his client and to file written statement, if any. On 20.6.2005 the matter was fixed for filing of the written statement. However, no written statement was filed. The Advocate requested for further time. The trial Court granted time to the respondents to file written statement at their own risk. Again, the matter was fixed for 14.7.2005. On that date also written statement was not filed. Again time was granted at the risk of the respondents. The written statement in fact was filed on 12.8.2005. Appellant sought for time to file the objections regarding the acceptability of the written statement which was filed after 142 days. By a cryptic order dated 9.9.2005 as noted above written statements were permitted to be filed and taken on record subject to payment of costs of Rs.2,000/-. The order of the trial Court was challenged before the High Court in a writ petition filed under Article 227 of the Constitution of India, 1950 (in short the ‘Constitution’). The High Court summarily dismissed the writ petition on the ground that discretionary power has been exercised.
4. In support of the appeal, learned counsel for the appellant submitted that after amendment to Order VIII of the Code of Civil Procedure, 1908 (in short the ‘Code’) w.e.f. 1.7.2002, the defendant is granted 30 days time to present the written statement. The period is to be reckoned from the date of service of summons. However, the proviso to the said provision permits extension of time when the Court is satisfied about the existence of reasons to be recorded in writing. It is submitted that neither the trial Court nor the High Court indicated any reason justifying the extension of time.
5. Learned counsel for the respondents on the other hand submitted that the reason for excuse was shown for filing of the written statement. Though elaborate reasonings have not been indicated, the order being a discretionary one, no interference is called for.
6. The parameters for extending the time granted by Order VIII Rule 1 of the Code have been delineated by this Court in several cases. In Kailash v. Nanhku and Ors. (2005 (4) SCC 480) it was noted as follows:
“42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. 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 just as a matter of routine and merely for the asking, more so, when the period of 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 time schedule prescribed by Order 8 Rule 1 of the Code 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.
44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when 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 dual purpose: (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.”
7. Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of the time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash’s case (supra). The appeal is allowed to the aforesaid extent with no order as to costs.
Appeal allowed accordingly.