Sikkim High Court

Shanti Subba And Ors vs Jashang Subba on 14 September, 2021

Bench: Hon'Ble The Justice

                            THE HIGH COURT OF SIKKIM : GANGTOK
                                         (Civil Extraordinary Jurisdiction)
                                        DATED : 14th September, 2021
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SINGLE BENCH: THE HON'BLE ACTING CHIEF JUSTICE MRS. JUSTICE MEENAKSHI MADAN RAI
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                                           W.P.(C) No.28 of 2021
                                   Petitioners          :      Shanti Subba and Others
                                                                   versus
                                   Respondent           :      Jashang Subba

                             Application under Articles 226 and 227
                                   of the Constitution of India
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                     Appearance

                             Mr. Zangpo Sherpa, Advocate for the Petitioners.
                             Mr. N. Rai, Senior Advocate with Mr. Sushant Subba, Advocate
                             for the Respondent.

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                                          JUDGMENT

Meenakshi Madan Rai, ACJ.

1. The Petitioners are before this Court seeking

directions for setting aside the impugned Order, dated 30.03.2021,

of the Learned District Judge, Special Division-II, Sikkim at Gangtok,

in Title Suit No.14 of 2018 (Shri Jashang Subba vs. Smt. Shanti

Subba and Others), vide which the Learned Trial Court disallowed

the Petitioners from filing their Written Statements in the Title Suit.

2.(i) The facts relevant for the present purposes are

narrated in seriatim hereinbelow for clarity.

(ii) On 29.09.2018, the Respondent filed a Suit before

the Learned Trial Court against the Petitioners for Declaration,

Recovery of Possession, Injunction and other Consequential Reliefs,

pertaining to a Plot of land situated at Tumlabong, Ranipool, East

Sikkim. Summons was received by the Petitioners on 08.10.2018

Shanti Subba & Ors. vs. Jashang Subba

and appearance through Counsel made before the Learned Court on

26.10.2018, the date previously fixed. The matter was posted for

filing of Written Statement on 05.12.2018. On the relevant day i.e.

05.12.2018, instead of filing the Written Statement, the Petitioners

filed an Application under Order VII Rule 11 read with Section 151 of

the Code of Civil Procedure, 1908 (for short, ―CPC‖) seeking

rejection of the Plaint. A fortnight later, on 21.12.2018, the

Respondent filed his Response to the said Application which came to

be heard and rejected by the Learned Trial Court on 11.03.2019.

(iii) Pursuant thereto, on 28.03.2019, the Petitioners

filed an Application under Section 151 of the CPC seeking leave of

the Court to file their Written Statements beyond the period

prescribed under Order VIII Rule 1 of the CPC. Objection to this

Application, was filed by the Respondent on 24.04.2019. Both the

Petition and the Objection were taken on record but not heard on

the same day.

(iv) On 14.07.2020, the Respondent filed an

Application under Order VIII Rule 10 read with Section 151 of the

CPC, Response to which was filed by the Petitioners on 10.08.2020.

On the same date (10.08.2020), the Petitioners also filed an

Application under Order I Rule 9 read with Section 151 of the CPC,

Reply to which the Respondent filed on 15.09.2020.

(v) On 22.03.2021, the Learned Trial Court heard

both, the Application of the Petitioners filed under Section 151 of the

CPC and the Application of the Respondent filed under Order VIII

Rule 10 read with Section 151 of the CPC. The impugned Order

came to be passed on 30.03.2021.

Shanti Subba & Ors. vs. Jashang Subba

(vi) It is relevant to mention that in the interregnum,

on the Petitioners' Application under Order VII Rule 11 read with

Section 151 of CPC being rejected by the Learned Trial Court vide

Order, dated 11.03.2019, the Petitioners were before this Court on

26.04.2019, assailing it. Civil Revision Petition No.01 of 2019

(Shanti Subba and Others vs. Jashang Subba) was registered in this

Court and vide Judgment pronounced on 26.06.2020, the Revision

Petition of the Petitioners was rejected.

3.(i) Learned Counsel for the Petitioners while

reiterating the facts as reflected hereinabove, advanced the

argument that the Learned Trial Court had passed the impugned

Order, dated 30.03.2021, arbitrarily, having failed to consider that

on 05.12.2018, which was the second date on which the Petitioners

appeared before the Court, they had filed their Application under

Order VII Rule 11 read with Section 151 of the CPC seeking

rejection of the Plaint on the ground of non-disclosure of cause of

action. That, the Order, dated 05.12.2018, reflected that the

Petitioners were allowed to file their respective Written Statements

on the next date fixed i.e. 18.12.2018. However, on 18.12.2018, the

Respondent sought time to file Response to the Application of the

Petitioners under Order VII Rule 11 read with Section 151 of the

CPC, thereafter the matter was fixed for hearing on the Application.

That, it was only on 11.03.2019 that the said Application was

disposed of and there was no specific Order passed by the Learned

Trial Court till then with regard to filing of Written Statement by the

Petitioners. Relying on the ratio of Saleem Bhai and Others vs. State of

Maharashtra and Others1, it was canvassed that the Learned Trial

Court failed to consider that there was no delay in filing the Written

(2003) 1 SCC 557

Shanti Subba & Ors. vs. Jashang Subba

Statement by the Petitioners and that there cannot be a direction to

file a Written Statement without deciding the Application under

Order VII Rule 11 of CPC. That, in fact, immediately on rejection of

the Application under Order VII Rule 11 of CPC on 11.03.2019, the

Petitioners on 28.03.2019, filed an Application under Section 151 of

CPC seeking leave of the Court to file their respective Written

Statements, however this Petition came to be disposed of by the

impugned Order only on 30.03.2021.

(ii) That, in view of the pendency of the Application

under Order VII Rule 11 of CPC read with Section 151 of CPC from

06.12.2018 to 11.03.2019, the limitation for filing of Written

Statements by the Petitioners would begin to run only from

12.03.2019. That, adjournments were granted by the Learned Trial

Court on several dates without deciding the Application under

Section 151 of the CPC. Besides, the Respondent also jointly sought

adjournment with the Petitioners on several dates on grounds as

reflected in the Order Sheets of the Learned Trial Court. Despite this

circumstance, the Respondent with mala fide intention, filed an

Application under Order VIII Rule 10 read with Section 151 of the

CPC on 14.07.2020 to deprive the Petitioners from filing their

Written Statements. That, the Learned Trial Court has erroneously

based its finding on the ratiocination of SCG Contracts (India) Private

Limited vs. K.S. Chamankar Infrastructure Private Limited and Others2

disregarding the fact that the said Judgment was passed in an issue

pertaining specifically to a Commercial Dispute while the instant

matter is a Title Suit. That, the Hon'ble Apex Court in its Judgment,

dated 20.01.2020 in Desh Raj vs. Balkishan (Dead) Through Proposed

(2019) 12 SCC 210

Shanti Subba & Ors. vs. Jashang Subba

Legal Representative Ms. Rohini3 has clarified the applicability of the

Judgment of SCG Contracts (India) Private Limited supra. That, the

provisions of Order VIII Rule 1 of CPC is not Mandatory but

Directory in nature and the Rules of procedure are the handmaids of

justice. Hence, appropriate Orders be issued setting aside the

impugned Order and allowing the Petitioners to file their respective

Written Statements in the Title Suit.

4. Resisting the contentions of Learned Counsel for

the Petitioners, Learned Senior Counsel for the Respondent

submitted that firstly, the act of the Petitioners in invoking Section

151 of the CPC seeking extension of time to file the Written

Statement is erroneous. Relying on the Judgments of the Hon'ble

Supreme Court in Somar Bhuiya and Others vs. Kapil Kumar Gautam and

Others4 and Smt. Santosh Chopra vs. Teja Singh and Another5, it was

contended that it is settled law that where there is a specific

provision of law, the provision of Section 151 CPC cannot be

invoked. That, the Petitioners ought to have approached the Learned

Trial Court under the correct provisions of law seeking extension of

time to file their Written Statements, hence the Petition under

Section 151 of the CPC deserves no consideration. That, although

the Petitioners placed reliance on R.K. Roja vs. U.S. Rayudu and

Another6 wherein the Hon'ble Supreme Court had referred to the

case of Saleem Bhai and Others supra, the Hon'ble Court has

unequivocally stated therein that the liberty to file an Application for

rejection under Order VII Rule 11 CPC cannot be a ruse for

retrieving lost opportunity to file Written Statement. That, the

(2020) 2 SCC 708

AIR 1974 Patna 289

AIR 1977 Delhi 110

(2016) 14 SCC 275

Shanti Subba & Ors. vs. Jashang Subba

Hon'ble Supreme Court in SCG Contracts (India) Private Limited supra

has, with lucidity, held that the Written Statement of the Defendant

must be taken off the record if the time limit, as statutorily

prescribed, is not followed. Accordingly, the Petition deserves a

dismissal.

5. The rival submissions of Learned Counsel for the

parties were heard in extenso and all documents on record

meticulously perused including the impugned Order as also the

citations made at the Bar.

6. The questions that fall for consideration before this

Court are:

(1) Whether the Petition invoking Section 151 of the Code of Civil Procedure, 1908, deserves to be disregarded by the Court, being the inappropriate provision for the purpose of seeking extension of time to file Written Statement?

(2) Whether the Proviso to Order VIII Rule 1 of the Code of Civil Procedure, 1908, would apply in the facts and circumstances of the present case?

7. The narrative of the events before the Learned

Trial Court have already been reflected hereinabove. While

addressing the first question formulated above, in K. K. Velusamy vs.

N. Palanisamy7, the Hon'ble Supreme Court relying on a catena of

decisions pertaining to the scope of Section 151 of the CPC held that

the submission of the Respondent therein that Section 151 of the

CPC could not be used for reopening evidence or for recalling

witnesses was unacceptable. The Court observed that Section 151 of

the CPC is not a substantive provision which creates or confers any

power or jurisdiction on Courts, it merely recognizes the

discretionary power inherent in every Court as a necessary corollary

(2011) 11 SCC 275

Shanti Subba & Ors. vs. Jashang Subba

for rendering justice in accordance with law, to do what is ‗right' and

undo what is ‗wrong.' In other words, to do all things necessary to

secure the ends of justice and prevent abuse of its provisions.

Nevertheless, the powers under Section 151 or for that matter Order

XVIII Rule 17 of the Code are not intended to be used routinely at

the drop of a hat.

8. In Rupa Ashok Hurra vs. Ashok Hurra and Another8 it

was opined inter alia as hereunder;

―69. True, due regard shall have to be had as regards opinion of the Court in Ranga Swamy [(1990) 1 SCC 288] but the situation presently centres around that in the event of there being any manifest injustice would the doctrine of ex debito justitiae be said to be having a role to play in sheer passivity or to rise above the ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time and the present phase of socio-

economic conditions of the society. Manifest injustice is curable in nature rather than incurable and this Court would lose its sanctity and thus would belie the expectations of the founding fathers that justice is above all. There is no manner of doubt that procedural law/procedural justice cannot overreach the concept of justice and in the event an order stands out to create manifest injustice, would the same be allowed to remain in silentio so as to affect the parties perpetually or the concept of justice ought to activate the Court to find a way out to resolve the erroneous approach to the problem? ...........................................In the event there is any affectation of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affectation of public confidence as regards the doctrine of integrity in the justice delivery system, technicality ought not to outweigh the course of justice -- the same being the true effect of the doctrine of ex debito justitiae. The oft-quoted statement of law of Lord Hewart, C.J. in R. v. Sussex Justices, ex p McCarthy [(1924) 1 KB 256 : 1923 All ER Rep 233 : 93 LJKB 129] that it is of fundamental importance that justice should not only be done, should manifestly and undoubtedly be seen to be done, had this doctrine underlined and administered therein.‖ (Emphasis supplied)

The pronouncements extracted hereinabove lend succour to the

expectation that technicality should not come in the way of meting

out even handed justice. In the instant matter, the Petitioners have

filed a petition under Section 151 of the CPC instead of filing it under

Order VIII Rule 1 and the Proviso thereof, however, manifest

injustice cannot be perpetuated on grounds of technicality.

(2002) 4 SCC 388

Shanti Subba & Ors. vs. Jashang Subba

Procedure is to be seen as a mechanism to advance the course of

justice and by no means to thwart the process. Hence, there is no

reason to disregard the Application under Section 151 of the CPC

merely for the reason that the appropriate provision was not

invoked.

9.(i) While dealing with the second question supra, we

are concerned with the provisions of Order VIII Rule 1 of the CPC,

which are extracted hereinbelow for easy comprehension of the

matter;

―ORDER VIII WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM

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.‖

From a bare reading of the provision, it is evident that the

Defendant is required to file a Written Statement of his defence

within thirty days of service of Summons on him. Nevertheless,

failure on the part of the Defendant does not debar him from filing a

Written Statement at a later date, subject to the Court allowing him

to do so for reasons which the Court is required to record. This is

evident from the Proviso to Order VIII Rule 1 of the CPC. That

having been cleared, it is essential now to consider whether the

Petitioners have made out a case for exercise of the discretionary

powers of the Court in their favour.

(a) On 29.09.2018, Title Suit No.14 of 2018 was

registered before the Learned Trial Court. The Suit was accompanied

by an Application under Order XXXIX Rules 1 and 2 read with

Shanti Subba & Ors. vs. Jashang Subba

Section 151 of the CPC, which was ordered to be listed for hearing

on 01.10.2018.

(b) On 01.10.2018, the Petitioners were ordered to

maintain Status Quo with regard to the disputed property and Notice

issued to the Petitioners returnable by 26.10.2018.

appearance through their Counsel and the Learned Trial Court

recorded inter alia as follows,

"..................

Now to come up for filing of W.S, if any.

To: 05.12.2018.

.................."

(d) On 05.12.2018, the Petitioners were before

the Court with an Application under Order VII Rule 11 read with

Section 151 of the CPC instead of a Written Statement. The

Respondent sought time to file Reply to this Petition which was

permitted and the next date fixed on 18.12.2018. The Order of the

Court, dated 05.12.2018, inter alia reads as follows;

"..................

Ld. Counsel for the defendants prays for time to file W.S.

Ld. Counsel for the defendants also files applications under Order VII Rule 11 r/w section 151 of C.P.C.

Ld. Counsel for the plaintiff prays for time to file reply to the same.

Considered, time allowed.

To: 18.12.2018.

For: filing of reply."

................."

Pausing here for a moment, it may pertinently be noticed that the

Court fixed the next date for filing of ―reply‖ to the Application of the

Petitioners under Order VII Rule 11 read with Section 151 of the

CPC but made no mention of the fate of the Written Statement. It

was for the Court at this juncture to have spelt out whether the

Written Statement was to be filed or whether the Petitioners were to

await disposal of the aforementioned Application. The Order of the

Court is silent on these aspects.

Shanti Subba & Ors. vs. Jashang Subba

(e) On 18.12.2018, the Respondent sought

further time to file the Reply. No reference is made to the filing of

Written Statement by the Petitioners, either by the Petitioners

themselves nor was it brought to the notice of the Court by either of

the parties. The Court itself too neglected to mention the non-filing

of the Written Statement in its Order. The next date was fixed on

21.12.2018.

(f) On 21.12.2018, Reply by the Respondent to

the Application of the Petitioners under Order VII Rule 11 read with

Section 151 of the CPC came to be filed. 06.02.2019 was fixed for

hearing on this Petition. No reference was made by the Petitioners

about their Written Statements neither did the Court raise a

question on this count.

(g) On 06.02.2019, adjournment was sought by

the Respondent on grounds that the conducting Senior Counsel was

out of station. The Court considered and granted time till

25.02.2019 for hearing of the Application under Order VII Rule 11

read with Section 151 of the CPC and still failed to consider that

Written Statement had not yet been filed.

(h) On 25.02.2019, the Petition under Order VII

Rule 11 read with Section 151 of the CPC finally came to be heard

and the matter was listed for orders on 11.03.2019.

(i) On 11.03.2019, the Order was pronounced

rejecting the Petition filed by the Petitioners. It is only on this date

that the Court broached the subject of Written Statement and

recorded inter alia as follows;

"11.03.2019 .....................

Date is fixed for Order.

Order pronounced vide separate sheets of papers.

Shanti Subba & Ors. vs. Jashang Subba

No Written statement on behalf of the defendants has been filed.

Now to come up for examination of parties under Order X of C.P.C.

.................."

The next date was fixed on 28.03.2019.

(j) On 28.03.2019, the Counsel for the

Petitioners filed an Application under Section 151 of the CPC seeking

extension of time to file their Written Statements. The Respondent

sought time to file Reply to this Petition. Without considering the

Petition filed on that day and after permitting the Respondent to file

Response to it, strangely enough before deciding the Application,

the Court proceeded to examine the Respondent under Order X of

the CPC on the same day.

(k) On 24.04.2019, the Respondent filed his

Reply and the Court fixed the date for hearing on 03.05.2019.

(l) On 03.05.2019, the Learned Presiding

Officer was out of station to attend Training for Judicial Officers and

the date was deferred to 23.05.2019.

(m) On 23.05.2019, the Case File was

transferred to the Court of the Learned District Judge, Special

Division-II, Sikkim by an Order of this Court. On the same date, the

Learned Court of Special Division-II posted it to 24.05.2019 for

further Orders.

            (n)           On 24.05.2019, the Learned Trial Court,

recorded inter alia as follows;

                          "......

At the outset, Ld. Counsel for the defendants submit that they have filed a Revision Petition before the Hon'ble High Court of Sikkim against the Order passed by the Ld. District Judge, East Sikkim at Gangtok vide Order dated: 11.03.2019........................

..................................

In view of the aforesaid submissions and the Order dated:23.05.2019 of the Ld. District Judge, East at Gangtok, let the matter be fixed on 06.06.2019."

Shanti Subba & Ors. vs. Jashang Subba

(o) From 06.06.2019, the matter was adjourned

on grounds that the Revision Petition was pending before the High

Court from where it was forwarded for Mediation. In fact, the Orders

reveal that the parties jointly sought time from 26.09.2019 on

grounds that the matter was fixed for Mediation. On 05.03.2020, the

Learned Trial Court was informed that the matter could not be

settled by Mediation and was fixed for hearing before the High

Court. The Learned Trial Court thus fixed 31.03.2020 for further

orders. Meanwhile, the country was plagued by the Covid-19

Pandemic and Nation wide lockdown was declared.

(p) The Judgment of this High Court rejecting

the Revision Petition was pronounced on 26.06.2020. On

14.07.2020, the parties appeared before the Learned Trial Court and

placed the Judgment of this Court before it. On the same date, the

Respondent also filed an Application under Order VIII Rule 10 read

with Section 151 of the CPC and the matter was listed on

31.07.2020 for further orders. It is apposite to remark here that till

then on several dates the parties had jointly sought adjournment

and the Respondent did not object to the non-filing of the Written

Statement by the Petitioners for almost two years. Due to the

Pandemic still ravaging the country, the matter was not taken up

and came to be heard finally only on 22.03.2021 and the impugned

Order pronounced on 30.03.2021.

(ii) From the Orders reflected hereinabove, it is

evident that the Court fixed 05.12.2018 for filing of Written

Statements by the Petitioners but the said Order did not reflect as to

whether the Petitioners had been granted further time or whether

further time to file the Written Statements was declined, indicating

Shanti Subba & Ors. vs. Jashang Subba

that the Court was also remiss in its duty, as already observed

supra. Thereafter the Orders reflect that no reference was made to

the filing of the Written Statement and on 11.03.2019, the Court

came to the sudden realization that no Written Statement was filed

on behalf of the Petitioners but proceeded to fix the matter for

examination of the parties under Order X of the CPC, without

recording its disinclination to permit filing of the Written Statements.

Although the Application under Section 151 of the CPC was filed by

Learned Counsel for the Petitioners on 28.03.2019 seeking

extension of time to file their Written Statements, the Learned Court

while allowing the Petitioners to file Response, kept the matter

pending for several months and instead of considering the Petition

and pronouncing its decision, examined the Respondent under Order

X of the CPC on that date. The Petition was disposed of a year later,

on 30.03.2021 vide the impugned Order. In Saleem Bhai and Others

supra relied on by Learned Counsel for the Petitioners, the short

common question that arose for consideration in the Appeals, was

whether an Application under Order VII Rule 11 of the CPC ought to

be decided on the allegations in the Plaint and filing of Written

Statement by the contesting Defendant is irrelevant and

unnecessary. Answering this question, the Hon'ble Supreme Court,

after duly considering the matter, at Paragraph 9, observed thus;

―9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC 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. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-

exercising of the jurisdiction vested in the court as well as procedural irregularity. ......‖ (Emphasis supplied)

Shanti Subba & Ors. vs. Jashang Subba

The matter was thereafter remitted back to the Learned Trial Court

for deciding the Application under Order VII Rule 11 of the CPC on

the basis of the averments in the Plaint, after affording an

opportunity of being heard to the parties in accordance with law.

This ratio therefore observes that an Application under Order VII

Rule 11 of the CPC ought to be disposed of before an Order for filing

of Written Statement is made for the reasons mentioned therein.

(iii) It may relevantly be noticed that in the case of

R.K. Roja supra, as correctly pointed out by Learned Senior Counsel

for the Respondent, the Hon'ble Supreme Court, while making a

reference to the case of Saleem Bhai and Others supra, as extracted

hereinabove, had added the observation in its Judgment, inter alia,

as follows;

"6. ...............However, we may hasten to add that the liberty to file an application for rejection under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement."

It is, however, worthwhile noticing that although the Hon'ble Court,

after hearing the Learned Counsel appearing for the Appellant on

the Application under Order VII Rule 11 of the CPC, was satisfied

that the Application did not come within the purview of any of the

situations under Order VII Rules 11(a) to (f) of the CPC, concluded

that nevertheless in the peculiar facts of the case, the Appellant be

given an opportunity to file the Written Statement within two weeks

from the date of disposal of the Appeal.

(iv) Learned Senior Counsel for the Respondent had

buttressed his submissions by relying on SCG Contracts (India) Private

Limited supra. On this aspect, we may relevantly refer to the ratio of

the Hon'ble Supreme Court in Desh Raj vs. Balkishan (Dead) Through

Proposed Legal Representative Ms. Rohini (supra), wherein it clarified

Shanti Subba & Ors. vs. Jashang Subba

that the Commercial Courts Act, 2015 through Section 16, amended

the CPC in its application to Commercial Disputes. Section 16 of the

Commercial Courts Act, 2015, provides as under;

―16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.--(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a specified value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a specified value.

(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908, by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.‖

Accordingly, Commercial Disputes defined under Section 2(c) of the

Commercial Courts Act, 2015, are governed by the CPC as amended

by Section 16 of the said Act, while Non-Commercial Disputes fall

within the ambit of the original provisions of the CPC. It was also

observed that the ratio in SCG Contracts (India) Private Limited supra,

concerning the mandatory nature of the timeline prescribed for filing

of the Written Statement and the lack of discretion of the Courts to

condone any delay, is applicable only to Commercial Disputes as the

Judgment was undoubtedly rendered in the context of a Commercial

Dispute. The ratio in SCG Contracts (India) Private Limited supra is not

applicable thereby to the case at hand.

(v) In Atcom Technologies Limited vs. Y.A. Chunawala and

Company and Others9, the Hon'ble Supreme Court while examining

the provisions of Order VIII Rule 1 of the CPC and the extension of

period of filing of Written Statement from thirty days up to ninety

days, observed that as per the said provisions, the Defendant is

obligated to present a Written Statement of his defence within thirty

(2018) 6 SCC 639

Shanti Subba & Ors. vs. Jashang Subba

days from the date of service of summons. That the Proviso thereto

enabled the Court to extend the period up to ninety days from the

date of service of Summons for sufficient reasons. It was held inter

alia as follows;

―20. This provision has come up for interpretation before this Court in number of cases. No doubt, the words ―shall not be later than ninety days‖ do not take away the power of the court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from Salem Advocate Bar Assn. (2) v. Union of India [Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344] : (SCC p. 364, para

21) ―21. ... There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to ―make such order in relation to the suit as it thinks fit‖. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending 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 so as to nullify the period fixed by Order 8 Rule 1.‖

21. In such a situation, onus upon the defendant is of a 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 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?‖ (Emphasis supplied)

(vi) On the anvil of the ratiocinations of Atcom

Technologies Limited and Salem Advocate Bar Association vs. Union of

India10 (supra), it emerges that the words ―shall not be later than

ninety days,‖ does not divest the Court of its discretionary powers to

accept Written Statement beyond the time stipulated in the said

provision. In fact, it is propounded that the provision of Order VIII

Rule 1 providing for the upper limit of ninety days to file Written

Statement is Directory. However, it must also be borne in mind that

although the Court has wide powers to make such Order in relation

(2005) 6 SCC 344

Shanti Subba & Ors. vs. Jashang Subba

to the Suit as it thinks fit, the Order extending time to file the

Written Statement cannot be exercised in a routine manner and

frequently to nullify the period fixed by Order VIII Rule 1 of the CPC.