This article is written by Adhila Muhammed Arif, a student at Government Law College, Thiruvananthapuram. This article elucidates the provisions in Order 8, Rule 10 of the Code of Civil Procedure, 1908, which is concerned with the consequences of not filing a written statement.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Code of Civil Procedure, 1908, is the procedural law that governs how the civil courts of our country must function. It lays down the rules for civil proceedings. The Code also contains substantive law, as laid down in its 158 sections, and also comprises 51 orders, which constitute its true procedural aspects. Order VIII of the Code of Civil Procedure deals with written statements, set offs, and counterclaims. A written statement is an integral part of a civil suit. When a suit is commenced by a plaint, the defendant has to file a written statement as a reply. There are several rules in Order VIII that govern how and when the written statement should be filed, and also the consequences for not filing. This article discusses the procedure when a party fails to present a written statement called for by the court, and the same is discussed under Order 8 Rule 10 of the CPC.
First, let us start with understanding what a ‘written statement’ exactly is.
What is a written statement
The Code of Civil Procedure does not give a definition of a ‘written statement’. In general terms, it can be defined as the statement of defence in writing, filed by the defendant, and it deals with every material fact alleged by the plaintiff in the plaint. It contains objections to the plaintiff’s allegations as well as new facts, if any. It essentially refers to the pleading of the defendant, as a plaint is the pleading of the plaintiff. The provisions concerning the written statement are contained in Order VIII of the Code of Civil Procedure.
The matter in the written statement must be stated concisely. It must only contain the facts on which the defendant relies for his defence and not the evidence to prove such facts.
Pleading of new facts
- As per Order VIII Rule 2, the defendant can also raise new facts that were not pleaded by the plaintiff in the plaint. He can raise any such facts or matters that show that the suit is not maintainable.
- However, it must be specifically pleaded and not expressed in general or vague terms.
- Such facts must be pleaded in the first instance itself. If it is not raised in the first instance when it was possible, it cannot be subsequently raised in an appeal.
Denial of facts
- It must either deny or accept the allegations in the plaint. If an allegation is not denied, it is deemed to have been accepted.
- According to Order VIII Rule 3 of CPC, it is important for the defendant to make an express and specific denial. The defendant cannot simply make a general denial of the plaintiff’s allegations.
- As per Rule 4, evasive denial or denial that does not answer the substance does not qualify as a denial. For instance, if the defendant wants to deny the allegation of the plaintiff that he had received a certain sum of money, he has to expressly deny the receipt of the amount and also specifically state the amount alleged. Evasive denial is taken as admission unless the plaint is also vague and stated in general terms.
Who can file a written statement
- A written statement, as stated earlier, is meant to be filed by the defendant.
- However, the defendant may file it through an agent authorised by him. It cannot be filed by someone who is not a party to the dispute.
- In the case of multiple defendants, there can be a common written statement signed by all, or at least verified by one of the defendants who is familiar with the facts.
When should a written statement be filed
- Order VIII Rule 1 lays down the period within which the defendant must file a written statement.
- The written statement should be filed by the defendant within thirty days from the day when the summons was served to him.
- However, this period can be extended up to ninety days from the date of service of summons by the court for reasons to be recorded in writing.
- In the case of commercial disputes, the written statement must be filed within thirty days from the date of service of summons. However, it can be extended by the court up to one hundred and twenty days from the date of service of summons for reasons to be recorded in writing, for which the defendant must pay the costs that the court thinks are appropriate. The expiry of this period results in the forfeiture of the right of filing a written statement.
- If the defendant does not file the written statement within the prescribed time period, he must file it as early as possible, along with a delay application, praying for the condonation of delay in filing the written statement. However, there has to be a sufficient cause that is outside the control of the party. If the reason satisfies the court, the court shall accept the application and proceed, and if not, the court shall reject it.
- In the case of Mohammed Yusuf v. Faij Mohammad and Ors. (2009), the defendant had filed a written statement after three years, praying for the condonation of delay. The application was rejected. The Allahabad High Court allowed a writ petition filed by the defendant, that challenged the rejection. The Supreme Court held that the High Court must not have interfered as there was no failure of justice or error on the face of the record. The Court held that the grant of time beyond the thirty-day period is not automatic. While granting the extension, the court must be cautious and examine whether there are sufficient reasons that call for the extension. The extension shall not be granted indiscriminately as it would defeat justice.
- In the case of Christian Broadcasting Network Inc. v. CBN News (P) Ltd. (2018), the Delhi High Court held that the Court can invoke Order VIII Rule 10 of CPC if the defendant fails to file a written statement. In this case, the plaintiff was involved in broadcasting services and came across the defendant’s YouTube channel ‘CBN NEWS’, which was identical to the plaintiff’s trademark. A cease and desist notice was served on the defendant but to no avail. So, the plaintiff filed a suit. The defendant had failed to file a written statement. The plaintiff prayed for a temporary injunction and the Court passed it.
- Another case is Nagaratnam Pillai v. Kamlathammal A (1945), here, there was a question as to whether Order VIII Rule 10 applies to Order VIII Rule 9. Rule 9 states that the parties cannot file further pleadings after filing a written statement, other than by way of defense to set-off or counterclaim. It also states that the Court may at any time require a written statement or additional written statement from any of the parties and fix a time that is not beyond thirty days for presenting the same. The Court decided that it relates to Rule 9.
Now, let us get to the topic. What does Order VIII Rule 10 of the CPC say?
Consequences of not filing a written statement
As per Order VIII Rule 10, if any person who is required to file a written statement does not do so within the time period prescribed or permitted by the court, the court shall pronounce the judgement against him or issue an order, and a decree shall be drawn up on the pronouncement of the judgement. The time period prescribed for the filing of the written statement in Rule 1 shall not be extended by the court.
The court has two alternatives when a written statement has not been filed:
- Granting of adjournment: The court can grant an adjournment to the defendant. This grants more time to the defendant to file a written statement. However, no more than three adjournments can be given to a party to the suit as per Order VII Rule 1 of the Code. If the party still fails to file the written statement, the court can move on to the next alternative, which is the ex parte decree.
- Pass an ex parte decree: The court can pass an ex parte decree against the defendant. This is not mandatory but the court has the discretion to do so. This is usually avoided by the court in the first instance. However, if the party fails to file a written statement in spite of many adjournments, the court can resort to passing an ex parte decree against the defendant.
Now that we know the consequences of not filing the written statement during the prescribed time period, let us look at the provisions of appeal and revision.
Appeal and revision
Order VIII Rule 10 provides that a decree will be drawn upon such judgement. Following that, an appeal would lie under Section 96. As per Section 115, the High Court can adjudicate upon such a decree through revision. When a decree is appealable, the aggrieved party cannot apply for revision.
Now, let us look at the inherent powers of the court with regard to the same.
Inherent powers of the court
Section 151 of the CPC lays down the inherent powers of the court. As per this Section, no provision in the Code acts as a restriction on the power of the court to issue an order in the interest of justice or for the purpose of preventing the abuse of the power of the court.
This Section acts as a limitation to Order VIII Rule 10 of the Code. This provision allows the courts to extend the period of limitation for filing the written statement. However, this is only allowed in exceptional situations that arise from causes outside the control of the defendant. This power cannot be used in ordinary cases.
Now that we are familiar with the provisions of the code, let us look at some important decisions by the judiciary regarding the same matter.
Case laws
Atcom Technologies Ltd. v. Y.A Chunawala and Co. (2018)
Facts
An appeal was filed by the defendant in the Supreme Court against an order made by the Delhi High Court in a revision petition that struck off his right to file a written statement as he had repeatedly delayed the filing in the civil court. The dispute was between two brothers on an agreement to sell off their ancestral property. The ancestral property consisted of a building, where the ground floor was owned by the respondent or the plaintiff, and the first floor was owned by the appellant or the defendant. The brothers entered into an agreement of sale where the appellant or the defendant agreed to sell the first floor to the respondent or the plaintiff. The plaintiff later filed a suit for specific performance of the agreement, claiming that the respondent was attempting to sell the subject matter of the agreement to third parties. Due to the defendant’s failure to file the written statement, the civil court granted several extensions, to the point where it exceeded 90 days. Before appealing to the Supreme Court, the appellant had first approached the Delhi High Court through revision. The Court dismissed the petition by relying on the judgement in Oku Tech Pvt. Ltd. v. Sangeet Agarwal and Ors. (2016), which laid down that courts do not have the discretion to grant an extension beyond 120 days.
Contention of the appellant
- The High Court’s decision was erroneous as the Oku Tech judgement is only applicable in the case of commercial disputes. The case here is of non-commercial nature.
- The time period prescribed under Order VIII Rule 1 is merely procedural and directory. The appellant also claimed that the same was decided by the Supreme Court in cases such as Salem Advocate Bar Association, T.N. v. Union of India (2005). The time period of 90 days can be extended by the court using its discretionary powers in exceptional cases.
- The written statement could not be filed due to the lapse on part of his counsel and that he had appeared before the civil court on all the dates of the hearing.
Contention of the respondent
The defendant was granted several chances to file the written statement. The statutory period of 90 days cannot be extended.
Issues
- Is the suit of commercial nature?
- Can the statutory period of 90 days be extended?
- Is the time period prescribed directory in nature?
- Can the appellant be allowed to file the written statement?
Judgement
In this case, the Supreme Court held that in some very exceptional cases of non-commercial nature, the court can extend the period for filing a written statement beyond ninety days. Hence, the prescribed period is a “directory” and not mandatory. The defendant has to prove that there is a strong case that supports such an extension. The court observed that the suit is of a non-commercial nature. The court dismissed the appeal by stating that the appellant was given numerous opportunities but still failed to file the written statement.
Rajendrabhai Maganbhai Koli v. Shantaben Maganbhai Koli (2022)
Facts
The applicant applied for the writ of certiorari against an order passed by the Additional Civil Judge to be allowed to file a written statement. The applicant had been given several opportunities but failed to make an appearance and the court proceeded with the matter. The order was passed as the extension would not be given beyond 120 days.
Contentions of the applicant
- The judgement in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) was relied upon by the applicant to contend that the 120-day period is merely a directory and not mandatory
- The right of the applicant to file the written statement does not affect the right of the plaintiff in the case. Hence, allowing the defendant to file the written statement does not jeopardise the plaintiff’s position, but disallowing the defendant from filing the written statement would certainly jeopardise the defendant’s position.
- The applicant also stated that he is willing to pay the necessary costs if any.
Issues
- Is the time period prescribed for filing the written statement mandatory or directory?
- Can the applicant be allowed to file the written statement?
Judgement
- In this case, the Gujarat High Court held the view that the ninety-day limit for filing a written statement in non-commercial disputes is directory in nature and not mandatory. The Court stated that it must be used sparingly and not in ordinary cases.
- The Court, after examining the merits and circumstances of the case, held that the writ petition is allowed and that the applicant is allowed to file the written statement.
- The Court made such an order while taking the pandemic situation into consideration.
- The Court, however, ordered the applicant to pay an exemplary cost of Rs. 10,000.
- The Court also clarified that the order passed by it will not act as a precedent as it was made with respect to the facts and circumstances of the case.
M/s SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd. (2019)
Facts
- A suit was filed by M/S SCG Contracts India Pvt. Ltd., who is the appellant, against K.S. Chamankar Infrastructure Pvt. Ltd., claiming a sum of Rs. 6,94,63,114/-.
- The defendant had not filed a written statement even after 120 days. The date on which the period expired was 11 November 2017.
- The defendant had filed for the rejection of the plaintiff’s plaint and the Court rejected this application.
- The defendant had applied for an extension of the time period for filing the written statement. The Court granted time till 15 December 2017 for the defendant to file the written statement. This order was made on 5 December 2017.
- The plaintiff makes an application on the 6th of August 2018, claiming that the extension of the time period beyond 120 days is not supported by the Code of Civil Procedure. The Court issued an order on 24 September 2018 stating that the Order made on 5 December 2017 was final.
- The plaintiff or the appellant, in this case, challenged both orders, the one made on 5 December 2017 and the one made on 24 September 2018, by special leave petitions before the Supreme Court.
Issue
Can the defendant file the written statement after 120 days?
Judgement
- In this case, the Supreme Court held that in disputes of commercial nature, the written statement must be filed within one hundred and twenty days and not beyond.
- The Supreme Court clarified that if the defendant fails to file the written statement within this period, it has the effect of the forfeiture of the right to file a written statement. Even in exceptional cases, this period cannot be extended. The provision in Order VIII Rule 10 clearly states that the time period prescribed for suits of commercial nature in Order VIII Rule 1 cannot be extended. Hence, in commercial suits, the time period prescribed by the code is mandatory and not merely directory.
- The Court relied on the judgements of the Delhi High Court in the cases of Oku Tech Pvt Ltd v Sangeet Agarwal & Ors. (2016) and Maja Cosmetics v. Oasis Commercial Pvt. Ltd. (2017) to decide this case. These judgements held that the provision in Order VIII Rule 1 and Rule 10 is mandatory and not merely a directory provision.
- Additionally, the Court cited the judgement made in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (1961) to reiterate that Section 151 does not precede this provision. The inherent powers of the court provided by Section 151 of the Code of Civil Procedure cannot be used in commercial suits to extend the period of one hundred and twenty days.
M/s Diligent Media Corporation Ltd. v. Sandy Ltd. (2021)
Facts
A commercial summary suit was filed by Sandy Ltd., the plaintiff, against Diligent Media Ltd. A summons was issued to the defendant. While the summons was pending, the defendant made an application on March 15, 2018 for the rejection of the plaint, claiming that the suit was not maintainable as it was barred by limitation. During the pendency of the application, on August 20th, 2018, the defendant was allowed a time period of four weeks to file the written statement. The defendant had failed to file a written statement during the said period. He filed an application for the condonation of delay with the Bombay High Court.
Issues
Can the court, in a commercial summary suit, grant an extension of time to file a written statement beyond the prescribed period of 120 days? Is the procedure for a commercial summary suit different from an ordinary commercial suit?
Judgement
- The Bombay High Court stated that the rules of procedure for summary suits are different from that of ordinary suits. The rules of special procedure of summary suits are provided under Order 37 of the Code of Civil Procedure.
- The Court clarified that for commercial summary suits, the time period prescribed under Order VIII Rule 1 and Rule 10 does not apply. The time period is meant to be determined by the court as per the provision in Order V Rule 1 of CPC. Or, the time period of ninety days applies and it commences from the date of grant of leave, and not from the date of service of summons.
- The Court stated that though the time period is directory and not mandatory for commercial summary suits, the court must exercise its discretion carefully.
- The Court approved the contention of the defendant that due to the application made by the defendant to reject the plaint, he could not file the written statement. The Court was of the opinion that the defendant’s application was not mala fide and that he had not attempted to delay the prosecution. The Court allowed the defendant to file the written statement on the ground of interest of justice.
- However, the Court imposed a cost of Rs. 1,00,000 on the defendant for the delay of the trial of the suit.
Conclusion
Order VIII Rule 10 of the Code essentially lay down that if the defendant does not file a written statement within the time and manner prescribed by the provisions in the Order, the court shall pass a judgement against him. The provision also makes it clear that the court cannot extend the one-hundred and twenty days duration prescribed under Rule 1 under any circumstances for commercial disputes. The question as to the nature of Rule 10 was answered in various court decisions. For suits involving non-commercial subject matter, Rule 10 is merely a directory provision and not mandatory. That is, in exceptional circumstances, the time period prescribed in Rule 1 can be extended. Such an extension is made by invoking the inherent powers of the court as given in Section 151 of the Code. The extension must be granted in the interest of justice. However, as the rule is mandatory for commercial disputes, such an extension cannot be given in any circumstances.
Frequently Asked Questions (FAQs)
Is the time limit prescribed under Order VIII Rule 10 of the Code of Civil Procedure mandatory or directory?
The time limit prescribed is a directory provision for non-commercial suits as per the decisions in cases such as Kailash v. Nanhku and Ors. (2005) and Rajendrabhai Maganbhai Koli v. Shantaben Maganbhai Koli (2022). However, it is mandatory in commercial disputes as per the decisions in M/s SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd. (2019) and Desh Raj v. Balkishan(D) (2020).
Can the court give an extension beyond the period prescribed in Order VIII Rule 1?
Yes, the court can give an extension beyond the prescribed period for filing a written statement in non-commercial suits in very exceptional situations. This extension is not given in ordinary cases as it would be an abuse of power by the court. However, such an extension is not granted at all in cases involving commercial disputes beyond the 120 days prescribed in Order VIII Rule 1.
What if the defendant does not file a written statement?
If the defendant does not file a written statement, the court will pass an ex parte decree against the defendant. The court, in its discretion, can also grant adjournments for special reasons before passing an ex parte decree, but it cannot be granted more than three times.
References
- https://advocatetanmoy.com/2019/10/05/order-8-rule-10-cpc-non-filing-of-written-statement/#:~:text=Order%208%20Rule%2010%20of,a%20decree%20shall%20be%20drawn.
- https://blog.ipleaders.in/whether-the-time-limit-to-file-written-statement-under-order-viii-rule-1-code-of-civil-procedure-1908-is-mandatory-or-directory/
- https://www.livelaw.in/news-updates/gujarat-high-court-cpc-written-statement-order-vii-rule-10-directory-sparingly-190394
- https://lawblog4u.in/what-is-the-effect-of-non-filing-written-statements-in-a-suit/
- https://www.lexology.com/library/detail.aspx?g=47619ebd-1a6b-4838-b171-d8e3eeb7f71f
- https://elplaw.in/wp-content/uploads/2019/02/190222-Litigation-Alert.pdf
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