Chintaman Sukhdeo Kaklij And Ors. vs Shivaji Bhausaheb Gadhe And Ors.
2004 Latest Caselaw 911 Bom

JUDGMENT

A.P. Shah, J.

1. Divergent opinions expressed by two learned Single Judges of this Court have necessitated the present reference to a larger Bench to resolve the conflict as regards the true and correct interpretation of Order 8, Rule 1 of the Civil Procedure Code (CPC for short). The question that falls for consideration is whether the Court can permit filing of written statement beyond the period of 90 days stipulated under Order 8, Rule 1 of the Civil Procedure Code. The reference arises in following manner.

2. In Prabhakar Madhavrao Mule v. Bhagwan Mitharam, 2004(2) Mh.L.J. 1058, Vagyani J., held that by virtue of recent amendment to the Civil Procedure Code by Act 22 of 2002, there is no alternative for the defendant to file written statement within 30 days from the date of service of suit summons and by virtue of proviso to Rule 1, Order 8 of the Civil Procedure Code, the written statement can be allowed to be filed on such other day for reason to be recorded in writing, but in any case not later than 90 days from the date of service of suit summons. Rule 1, Order 8 of Civil Procedure Code is mandatory in nature and it requires strict compliance. The time cannot be extended under Order 8, Rule 9 of the Civil Procedure Code as filing of written statement is governed exclusively by Order 8, Rule 1 and on failure to file written statement within 90 days under amended Rule 1, Order 8, the right to file written statement is lost and the defendant cannot bank upon Rule 9, Order 8 of the Civil Procedure Code to wipe out his default. Vagyani J. relied upon the decision of the Division Bench in Indium India Telecom Ltd. v. Motorola Inc., 2004(1) Mh.LJ. 532.

3. As against this in Shailaja A. Sawant (Dr.) v. Sayajirao Ganpatrao Patil, 2004(2) Mh.LJ. 419, Bhosale J., took a view that the provisions of Order 8, Rule 1, Civil Procedure Code as amended by Act of 22 of 2002 are directory in nature. Rule 10 of Order 8, Civil Procedure Code governs both situations where the written statement is required under Rule 1, Order 8 as also where it has been demanded under Rule 9. In both situations if a written statement has not been filed by the defendant, it will be open for the Court to pronounce the judgment against him or make such order in relation to the suit as it thinks fit under Rule 10, Order 8. If a written statement is not filed, the Court is required to pronounce the judgment against him. This also gives discretion either to pronounce the judgment to "make such order in relation to the suit as it thinks fit". In other words, it is open for the Court to allow the defendant to file a written statement even at that stage. Rules 9 and 10 of Order 8 give discretion to the trial Court to allow the defendant to file a written statement at any stage prior to the pronouncement of the judgment.

4. In view of the conflict of opinion in the above two judgments of the coordinate Benches, the matter has been referred to the larger Bench by Khanwilkar J., for an authoritative pronouncement on the point in issue.

5. In order to appreciate the controversy, it is necessary to reproduce the relevant statutory provisions. Before Amendment Act, the relevant part of Order 8, Rule 1 of the Code, which reads as follows :

"(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence."

6. By the Amendment Act of 1999 subsequent to the amendment, Order 8, Rule 1 of Code, was re-enacted as follows :

"1. Written Statement.-- The defendant shall at or before the first hearing or within such time as the Court may permit, which shall not be beyond thirty days from the date of service of summons on the defendant, present a written statement of his defence."

This has been substituted by the Amendment Act of 2002 to read as follows:

"1. Written Statement.-- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.

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."

7. Since the period is required to be reckoned from the date of service of summons on the defendant, it is necessary to refer to Order 5 and the amendment effected thereto. Before its amendment Order 5, Rule 1 of the Code reads as follows :

"1. When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified.

Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim.

Provided further that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons."

8. After its amendment by the Amendment Act of 1999, the said provision was re-enacted as follows :

"(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, on such day within thirty days from the day of institution of the suit as may be specified therein;

Provided that no such summons shall be issued when a defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim,

Provided further that where the defendant fails to file the written statement on the said day, he shall be allowed to file the same on such other day which shall not be beyond thirty days from the date of service of summons on the defendant, as the Court may think fit."

By the amendment Act of 2002 the provision is re-enacted as follows:

"(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant;

Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiffs claim. Provided further 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."

9. Order 8, Rule 5(2) of the Civil Procedure Code reads as under :

"(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved."

10. Before Amendment Act, Order 8, Rule 9 under the nomenclature "subsequent pleadings" read as follows :

"9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit, but the Court may any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."

By the Amendment Act of 2002, Rule 9, Order 8 was re-enacted as follows :

"9. Subsequent pleadings.-- No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter claim be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same."

11. Order 8, Rule 10 deals with the procedure when party fails to present written statement called for by the Court and it reads as under :

"10. Procedure when party fails to present written statement called by Court where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."

12. By the amendment to Rule 1, Order 8, the legislature intends to prescribe a time limit within which the written statement is to be filed. Order 5, Rule 1 and Order 8, Rule 1, as amended confers a right on the defendant to file the written statement within 30 days from the date of service of summons. However, on a request made by the defendant for extension of time to file the written statement, the Court has the power to extend time for filing the written statement at the request of the defendant by another 60 days beyond the 30 days period prescribed by the aforesaid provisions for the reasons to be recorded in writing. Even after such an extension, if the defendant fails to file the written statement within 90 days from the date of service of summons, what should happen is not provided under the Civil Procedure Code. Does he lose the right to file the written statement or the Court has power to entertain the written statement beyond 90 days time, is the question to be decided in the present case.

13. Two distinct view points were canvassed before us by the learned Counsel appearing for the parties. One view urged by the learned Counsel appearing for the original plaintiffs was that the words used in Order 8, Rule 1 are precise and unambiguous and, therefore, the basic rule of interpretation must be followed, viz. where the language of Rule is clear the Court cannot abstain from giving effect to it merely because it would lead to more hardship. Therefore, howsoever, it may be harsh to the party, if the language of the amended Order 8, Rule 1 is plain and simple then effect should be given to the same and cannot be read otherwise. It was urged that earlier the Court's power to permit filing of written statement was not hedged in by any limitation. As a result a defendant could avoid filing of the written statement on one pretext or the other postponing the trial of the suit indefinitely which was found to be objectionable. Therefore, to curtail the delay caused injustice, the legislature thought it fit in its wisdom to regulate the discretion by prescribing limitation on the same. The discretion conferred upon the Court is not taken away but it is now regulated by prescribing the limitation upon the Court for exercising such discretion. Therefore if the Court reads Order 8, Rule 1 in any other manner - for instance to hold the provisions directory then the words "which shall not be later than 90 days from the date of service of summons" will be rendered nugatory and redundant. It was further urged that the legislature has urged prohibitive and negative words while drafting Order 8, Rule 1 coupled with the word "shall" then such provision must be held to be mandatory even if statute provides no penalty for disobedience of the same. In any event in case of non-compliance of Order 8, Rule 1 penal consequences in Rule 5 and Rule 10 are contemplated where the Court can exercise its power to pronounce the judgment. In view of this position Order 8, Rule 1 will have to be held mandatory.

14. Per contra, the learned Counsel appearing for the original defendants submitted that the intention of the legislature in introducing the amended provisions of Order 8, Rule 1 is not to penalize the defendant who does not submit his defence within the stipulated period or to take away the discretion that was vested in the Court prior to the amendment. In their submission, procedural Rules are normally not to be considered mandatory in nature. Procedure is something designed to facilitate justice. The procedural code is not a penal enactment for punishment and penalties. Penal consequences for not putting in the defence in time are also not provided in the provisions. The provisions of Order 8, Rule 1 are therefore directory in nature. It was further submitted that the purport and object of the enactment must be given its full effect. Therefore the provisions of Rules 9 and 10 of Order 8 cannot be ignored totally while considering the power of the Civil Court to allow the defendant to file his written statement beyond the period of 90 days as stipulated under Order 8, Rule 1. According to the learned Counsel, Rule 9 of Order 8 empowers the Court in extra ordinary cases to use judicial discretion to permit the defendant to file a written statement within the outer span of 30 days from the date of passing the order for reasons to be recorded in writing. Insofar as Rule 10 of Order 8 is concerned, it was submitted that the provisions of Rule 10 show that though the defendant is required to file a written statement within 30 days after receipt of summons and though the Court can extend time till 90 days, the Court is not divested of the power to give further time for filing a written statement. It was submitted that the very fact that Rules 9 and 10 are reintroduced by recent amendment by the Parliament would show that the Parliament never intended the Court to pronounce judgment immediately after the failure on the part of the defendant to file a written statement within 90 days.

15. The question is what is the true scope of Order 8, Rule 1 of Civil Procedure Code after 2002 Amendment Act. The answer to that question would necessarily depend upon whether the provisions are mandatory or directory. If the provisions are mandatory in that case even if in case on non-compliance for reasons beyond the control of the party or Advocate, time should not be extended. If it is directory, the Court can condone the delay and/or extend the time in cases of non-compliance within the time for the reasons beyond the control of the party or the Advocate if it has power to extend the time. Even if the Court has power to extend time, in case of wilful gross or deliberate default, the Court may refuse to extend the time. It is well settled position of law that no universal rule can be formulated as to whether an enactment shall be considered directory or mandatory except that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In a oft-quoted passage Lord Campbell said "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered". Therefore the question as to whether the statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it one way or the other.

16. In Raza Buland Sugar Co. Ltd. v. Municipal Board, , a Constitution Bench of the Supreme Court had to consider the question whether Section 135(3) read with Section 94(3) of the U.P. Municipalities Act was mandatory or directory. The facts were that Rampur Municipality, by a special resolution, proposed to levy property tax on persons or a class of persons. Section 131(3) required that the Board shall pass a resolution and have it published in the manner prescribed in section 94 of such proposed tax. Section 135(3) declared that a notification of the imposition of the tax under sub-section (2) thereof shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act. Under Section 94(3), every resolution passed by the Board shall be published in a local Hindi newspaper or in its absence by general or special order as may be directed by the State Government. The Municipality had contended that it had followed that procedure. The appellants contended that there was infraction in that behalf. While considering that question, per majority it was held that:

"The question whether a particular provision of a statute was mandatory... or directory cannot be resolved by laying down any general Rule and it should depend upon the facts of each case and for that purpose the object of the statute in working out the provision is a determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious genera! inconvenience or injustice to persons resulting from the provision or other provisions dealing with the same subject and other considerations which may rise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."

After exhaustive consideration of the subject it was held that though there was a technical defect inasmuch as the local paper in which the publication had been made, was in Urdu and not in Hindi, there was a substantial compliance and it was held to be directory and the tax imposed was upheld.

17. In recent decision in Topline Shoes Ltd. v. Corporation Bank, , the Supreme Court, while dealing with the interpretation of the provisions of Consumer Protection Act, 1986 formulated following question for determination -- whether or not the State Consumer Disputes Redressal Commission, could grant time to the respondent to file his reply, beyond a total period of 45 days, in view of Section 13(2) of the Consumer Protection Act, 1986. The Supreme Court after considering the Statement of Objects and Reasons of the said Act held thus:

"Thus the intention to provide a time frame to file reply, is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision, however, as framed, does not indicate that it is mandatory in nature. In case the extended time exceeds 15 days, no penal consequences are prescribed therefor. The period of extension of time "not exceeding 15 days" does not prescribe any time of period of limitation. The provision appears to be directory in nature, which the consumer forums are ordinarily supposed to apply in the proceedings before them. We do not find force in the submission made by the appellant in person that in no event, whatsoever the reply of the respondent could be taken on record beyond the period of 45 days. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes."

18. The Supreme Court then after considering decision in Sangramsingh v. Election Tribunal, Kotah and Anr., , held thus :

"11. We have already noticed that the provisions as contained under Clause (a) of Sub-section (2) of Section 13 is procedural in nature. It is, also clear that with a view to achieve the object of the enactment, that there may be speedy disposal of such cases, that it has been provided that reply is to be filed within 30 days and the extension of time may not exceed 15 days. This provision envisages that proceedings may not be prolonged for a very long time without the opposite party having filed his reply. No penal consequences have however been provided in case extension of time exceeds 15 days. Therefore, it could not be said that any substantive right accrued in favour of the appellant or there was any kind of bar of limitation in filing of the reply within extended time though beyond 45 days in all. The reply is not necessarily to be rejected. All facts and circumstances of the case must be taken into account. The Statement of Objects and Reasons of the Act also provides that the principles of natural justice have also to be kept in mind. 12. The power to extend time under Clause (a) is with a rider that the extension may not exceed 15 days. We have, however, already held that the provision saying that extended time may not exceed 15 days is directory in nature. It does not mean that orders extending the time to file reply may be passed repeatedly unmindful or a totally ignoring the provision that the extension may not exceed 15 days. This provision has always to be kept in mind while passing an order extending the time to file a reply to the petition. It is another matter, as we have found that in case time is extended exceeding 15 days, it may not be a kind of illegality which may deny or deprive the respondent to file his reply within the time granted by the Forum/Commission."

19. The word "shall" is used in Order 8, Rule 1 of Civil Procedure Code. However, it is settled law that where a statute uses the word "shall" while laying down a duty, it is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. In Owners and Parties interested in M. V. "Vali Pero" v. Fernandeo Lopez, , the Supreme Court held that it is not an invariable rule and even though the word "Shall" is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be merely directory. In short, the construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which the word "shall" has been used. The Court held that the word "shall" used in the expression "deposition shall be signed by witness" in Rule 4 of the Calcutta High Court Rules has to be given the meaning keeping in view the intention of the legislature, the purpose of the enactment and the consequence which would follow from construing it as mandatory or directory. The Court further held that in case of interpretation of rules of procedure-construction which subserves cause of justice is to be preferred to one which is rigid and negative cause of justice. The Court then observed thus:

"Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of the rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriod situations, all of which cannot be envisaged acting within the limits of the permissible construction must be preferred to that which is rigid and negative the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. This is the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system."

20. In State of Haryana and Anr. v. Raghubir Dayal, , the Supreme Court observed :

"The use of the word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word "shall" prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the hole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word "shall", therefore ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word "shall" as mandatory or as directory, accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something an prescribed the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory".

21. In light of the decisions cited above, it is clear that even if the word "shall" is used in the Code it need not be construed that the time limit prescribed in Order 8, Rule 1 of the Code is mandatory. Before proceeding further it would be necessary to bear in mind the observations of Bose J., in Sangramsingh v. Election Tribunal Kotah and Anr. (supra) that, "Code of Procedure.... is "procedure" something designed to facilitate justice and further its ends not a penal enactment for punishment and penalties, not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exception and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle".

22. It is thus cardinal rule of our jurisprudence that procedural provisions are not meant to thwart justice, but to advance it. Keeping those objectives in mind, we will have to consider whether and to what extent the provisions of the amended Civil Procedure Code, insofar as the filing of the written statement is concerned, have to be read as mandatory or directory. It appears to us that the intention to provide time frame to file the written statement is meant to expedite the hearing of the suits and to avoid unnecessary protraction of the proceedings and discourage parties from applying for adjournments for filing written statement any length of time. The intention is not to penalize the defendant who does not submit the defence in the prescribed period or to take away the discretion that prior to amendment vested with the Court. The changes effected by the amendment are aimed at curtailing the delays and not the defences. Various provisions, including the provisions of Rules 9 and 10, Order 8 vesting the discretion with the Courts are kept intact, enabling the Court to grant appropriate extension of time. It is pertinent to note that Rules 9 and 10 were omitted by Act 44 of 1999 but again they were reintroduced after Act 22 of 2002. It is the trite principle of interpretation of law that the enactment has to be read as a whole and one Rule or one section in the enactment cannot be a guiding factor for ascertaining the intendment of the Legislature. The very fact that Rules 9 and 10 are reintroduced by Act 22 of 2002 by the Parliament shows that the Parliament never intended to impose penal consequences on account of non-compliance of the provisions of Order 8, Rule 1 of Civil Procedure Code.

23. In this background, if we took at the entire scheme of these provisions and the law prior to the amendment and after the amendment, the conclusion is inescapable that upon the expiry of the time of 90 days stipulated under Rule 1, Order 8, the Court has power to permit the defendant to file the written statement in exceptional and extra ordinary circumstances. Rule 10, Order 8 provides that where a party from whom written statement is required either under Rule 1 or Rule 9 of Order 8, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce the judgment against him or make such order in relation to the suit as it thinks fit. Rule 10 governs both the situations where a written statement is required under Rule 1 of Order 8 as also where it has been demanded under Rule 9. In both the situations, if the written statement has not been filed by the defendant it will be open to the Court to pronounce the judgment against him or make such order in relation to the suit as it thinks fit. The Rule gives discretion either to pronounce the judgment against the defendant or "make such order in relation to the suit as it thinks fit". These words are of immense significance inasmuch as they give discretion to the Court not to pronounce the judgment against the defendant and instead pass such order as it may think fit in relation to the suit. There are two leading decisions of the Supreme Court under Order 8, Rules 1, 5 and 10 of the Code.

24. In Modula India v. Kamakshya Singh Deo, , the Supreme Court while dealing with the scope of Order 8 of the Code held as follows :

"An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the Code of Civil Procedure. Rules 1, 5 and 10 of this Code have been recently amended by the amendment Act of 1976. We find nothing in these Rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the Court. Under Rule 5(2) where the defendant has not filed a pleading it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the Court may in its discretion require any such fact to be proved. Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed 'by the Court, the Court 'shall pronounce judgment against him or make such order in relation to the suit as it thinks fit'. It will be seen that these Rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court 'shall' pronounce judgment against him, it is obvious from the language of the Rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these Rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightaway because written statement has not been filed. Reference was made before us to Sub-rule (1) of Rule 5. This sub-rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made use to sustain the contention that where there is no written statement the Court is bound to accept the statements contained in the plaint and pass a decree straightaway. These provisions of the Code of Civil Procedure far from supporting the contentions of the plaintiff that decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely that even in such cases, it is a matter for the Court to exercise a discretion as to the manner in which the further proceedings should take place. We therefore do not think that the terms of Order 8 in any way conflict with the conclusion reached by us".

25. Similarly in the decision in Balraj Taneja v. Sunil Madan, , the Supreme Court held as follows :

"29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the Court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10 of Civil Procedure Code. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is matter of the Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression 'the Court may, in its discretion, require any such fact to be proved' used in such Sub-rule (2) of Rule 5 of Order 8, or the expression 'may make such order in relation to the suit as it thinks fit' used in Rule 10 of Order 8."

26. In light of the above decisions of the Supreme Court it is clear that there is no penal consequences for not filing the written statement within the time stipulated. Rule 10, Order 8 gives power to the Court to make such order in relation to the suit as it thinks fit. In Vimalkumar Nathmal Goenka v. Vinod Kumar Nathmal Goenka, 1999(1) Mh.LJ. 180 = AIR 1999 Bom. 57, Sinha J., while dealing with the said Rule held that, for the ends of justice, if necessary, the written statement can be admitted on record till the Court proceeds to deliver the judgment. The learned Judge observed :

"8. In order to consider the issue in question it will be meaningful to consider purport of Order VIII, Rule 10 of the Code of Civil Procedure. There is no difficulty in coming to the conclusion that Rule 10 gives discretion to the Court and the Court can permit the defendant to file written statement at any stage prior to pronouncement of judgment. Plain reading of Rule 10 makes it clear that the Court can either pronounce judgment against the defendant in the absence of written statement or pass any order as it thinks fit. In view of the above referred legal position vis a vis Rule 10 of Order 8 of Code of Civil Procedure, the trial Court could have exercised discretion even at the stage when ex parte hearing was concluded and matter was fixed for delivery of judgment on 29-12-1997. However, in the instant case, admittedly the same had not been done by the trial Court and the matter was posted for passing necessary orders on the applications (Exhs. 50 and 51) preferred by the applicant. Since judgment was not pronounced in the matter by the trial Court on the date on which it was fixed for pronouncement of judgment i.e. 29-12-1997 and the matter was adjourned for passing necessary orders on Exhs. 50 and 51, it cannot be said that the trial Court had exhausted the jurisdiction vested in it as per Order 8, Rule 10 of Code of Civil Procedure nor can it be construed that the trial Court had no jurisdiction to accept the written statement. In the present case, the trial Court did not reject Exh. 50 on 29-12-1997 and did not pronounce judgment on 29-12-1997 (date fixed for delivery of judgment) and adjourned the matter to a future date. The entire exercise undertaken by the trial Court clearly shows that it did not exercise jurisdiction vested in it by the first part of Order 8, Rule 10 of Code of Civil Procedure, i.e. by pronouncing the judgment of failure to file written statement as required under Order 8, Rule 1 of Code of Civil Procedure. The present case would fall within the ambit of latter part of Rule 10 of Order 8 of the Civil Procedure Code, i.e. "or make such order in relation to the suit as it thinks fit". Hence once the case/suit was adjourned to a future date, it is impliedly clear that the trial Court had exercised discretion contemplated in the above referred latter part of Rule 10 of Order 8 of Code of Civil Procedure. It is, therefore, not possible to hold that the trial Court was not competent to accept written statement filed by the original defendant No. 3." 27. Similarly the Calcutta High Court in Ramesh Chandra Bhattacharyya v. Corporation of Calcutta and Ors., , has held as follows : "On perusing the Rule 10 or Order 8 carefully I have no doubt in my mind that Rule 10 gives discretion to the trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the Court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the Court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the Court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the trial Court had the jurisdiction under Order 8, Rule 10, Civil Procedure Code to accept the written statement even at that stage. When the learned trial Court exercised its jurisdiction and decided to accept the written statement so that there could be contested hearing of the suit. I am not inclined to interfere with that order under section 115, Civil Procedure Code. In the result, the application under section 115, Civil Procedure Code is dismissed and the rule is discharged. There will be no order as to costs."

28. In pursuance to the amended Order 8, Rule 9, the Court has got power under extraordinary and in rare circumstances to require at any time written statement or additional written statement to be filed in a case within the outer limit of 30 days to be fixed by the Court. The only difference between the old Code and the new Code as far as Order 8, Rule 9 is concerned, is that no time limit is fixed in old Code and discretion is given to the Court to fix the time for presenting the written statement. In the amended Code, the Court may permit filing of the written statement or additional written statement from any of the parties, but the Court must fix an outer limit of not more than 30 days for presenting the same. Of course the power under Order 8, Rule 9 should be used only in exceptional cases and for reasons recorded in writing and cannot be exercised by the defendant as a matter of right. Such exercise of discretion must be judicial and not capricious and such right must be keeping with the spirit of the amended Code.

29. In our opinion, harmonious reading of Rules 1, 5, 9 and 10 of Order 8 of Civil Procedure Code would indicate that in exceptional and extraordinary cases the Court has discretion to permit the defendant to file the written statement beyond the period of 90 days stipulated under Rule 1, Order 8 of Civil Procedure Code.

30. The aforesaid view of ours is supported by the decisions in Nachipeddy Ramaswamy v. P. Buchi Reddy, , Dr. Sukhdev Singh Gambhir v. Amrit Pal Singh, and Ponnamma v. Subburaman, 2003(11) I.L.D. 90. In Prasanna Paravathamba v. M. S. Radhakrishna Dixit, a learned Single Judge of Karnataka High Court also took a view that the provisions of Order 8, Rule 1 are directory. This decision of the learned Single Judge, was, however, overruled in A. Sathyapal v. Yasmin Banu Ansari, AIR 2004 Kant. 246. We have gone through the decision in A. Sathyapal's case. We are unable to agree with the view taken by the Division Bench that the Court trying a civil suit does not have any power to extend time for filing written statement beyond what is stipulated in Order 8, Rule 1 of the Civil Procedure Code.

31. Our attention was also drawn to the decision of the Supreme Court in Dr. J. J. Merchant v. Shrinath Chaturvedi, 2002(6) SCC 65. There the Court was considering the provisions of section 13 of the Consumer Protection Act, 1986. It is the rule of interpretation that even an interpretation of cognate statute need not necessarily be followed unless the provisions are pari materia and considering the object of the statute. In the case Dr. J. J. Merchant the Court considered section 13 of the Consumer Protection Act which also provides for filing written statement within a period of 30 days. The Supreme Court has referred to Order 8, Rule 1 and observed that, "Under this Rule also there is legislative mandate that written statement or defence is to be filed within 30 days. However, if there is failure to file such written statement within the stipulated time, the Court can at the most extend further time of 60 days and not more". The Supreme Court in Dr. J. J, Merchant's case was not considering the issue as to whether the Court has power to extend the time beyond the period prescribed under the provisions of Section 13 of the Consumer Protection Act or under Order 8, Rule 1 of the Civil Procedure Code of that matter. The issue involved in the present case was not the issue before the Supreme Court in Dr. J. J. Merchant's case. So the said decision cannot be relied upon to decide the present issue.

32. In Iridium India Telecom. Ltd, (supra) the Division Bench of this Court, to which one of us (Shah, J.) was a party, was dealing with an appeal arising from the judgment of the learned Single Judge of this Court. The learned Single Judge by exercising inherent powers under section 148 of the Civil Procedure Code had extended time for filing written statement holding that section 148 could be invoked to extend the period prescribed under Order 8, Rule 1, notwithstanding the proviso to Order 8, Rule 1 which curtails the power of the Court to extend the time only upto 90 days. The Division Bench held that the provision of section 148 cannot be resorted to where the time is fixed by the Code. The Division Bench then proceeded to consider the principle issue whether the provisions of Order 8, Rule 1 would apply to suits on the Original Side. That issue has ultimately answered in the negative holding that Order 8, Rule 1 would not apply to suits on the Original Side and such suits on the Original Side will continue to be governed by the Original Side Rules. The issue as to whether the Order 8, Rule 1 is mandatory or directory was not decided by the Division Bench. In fact the Court's attention was not drawn to Rules 9 and 10 of Order 8 of Civil Procedure Code.

33. In view of the foregoing discussion we hold that Rules 9 and 10 of Order 8 of Civil Procedure Code give discretion to the trial Court to allow the defendant to file written statement even after the expiry of a period of 90 days as contemplated by Order 8, Rule 1. We hasten to add that this does not mean that the order of extending time to file written statement can be granted casually, and unmindful of provisions that extension would not exceed 90 days. The provisions of Order 8, Rule 1 always be kept in mind while passing order extending time for filing written statement to the suit and ordinarily such extension shall not be granted except in exceptional and special circumstances.

Office is directed to place the petitions before the learned Single Judge for appropriate orders.