Limitation in the filing of Written Statement

By | March 6, 2020
Limitation in the filing of Written Statement

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In this article, we will discuss the limitation in the filing of a Written Statement. Order 8 Rule 1 provides that a Written Statement ordinarily be filed within a period of 30 days, however, an extension of 90 days can be granted by recording the reasons in writing and the payment of costs as it deems fit to allow the same to be put on record.

Introduction

The term ‘Written Statement’ has not been defined in the code. It is a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff. [1] In other words, a written statement is the pleading of the defendant wherein he deals with every material fact alleged by the plaintiff in his plaint and also states any new facts in his favour or takes legal objections against the claim of the plaintiff.

Object

As provided under Order 8 Rule 1

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.

The provisions of Rule 1 were amended through the Amendment Act of 1999 “received the assent of the president on December 30, 1999 but the same was not brought into force. Finally, through the Code of Civil Procedure (Amendment) Act, 2002,” again, Rule 1 was substituted in the present form and was brought into force from July 01, 2002.

Extension of Time

Under Order 8 Rule 1 the courts are empowered to permit the defendant to file a written statement after thirty days from service of summons on him. However, it requires the court to record reasons in writing to extend time. Rule 1 also prescribes the outer limit of ninety days from the date of service of summons on the defendant.[2]

Where there are several defendants and summons of the suit has been served on some of the defendants, the prayer for extension of time for filing written statement by those defendants on whom summons have been served cannot be granted solely on the ground that other defendants have not been served the summons.[3]

Failure to file a Written Statement

Madras High Court in Narayanappa v. Suryanarayana,[4] held that while a person fails to comply with an order under Order 8 Rule 9 suffer a penalty under Rule 10, whereas the same penalty is not specified under Order 8. The High Court observed that this defect should be set right, by appropriate amendment, if necessary.

Related Judgements

In Sandeep Thapar v. SME Technologies Pvt. Ltd.,[5] “a question as to whether the court can grant permission to file written statement after the expiry of the prescribed period under order 8 Rule1 arose before Supreme Court. Relying on the ration laid down in Kailash v. Nanhku,[6] it was held that the purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 is to expedite and not to scuttle the hearing.”

The Supreme Court in the landmark judgement of Salem Advocate Bar Association, Tamil Nadu v. Union of India,[7] “it was held that it would be open to the court to permit the defendant to file his written statement if exceptional circumstances are made out.” Where the court is satisfied by the reasons assigned by the defendant for not filing a written statement within the statutory period, it can extend the period, since the provision is not mandatory.

In Shiv Shankar Dey v. Damodar Ram,[8] the Jharkhand High Court observed that Order 8 Rule 1 is not mandatory in nature, but a mere procedural law. The court, while rejecting the prayer for filing of the written statement, ought to have kept in mind the background of the party, social structure and the disability attached to the party.

Division Bench of Orissa High Court in Jholie Baba Agency v. State Bank of India,[9] held that the order passed by Debt Recovery Tribunal was not a proper exercise of discretion. Where, in a suit for recovery of outstanding dues filed by Bank before Debt Recovery tribunal, the defendant could not file the written statement as he was out of station the Tribunal, on the application of the defendant directed him to file the written statement on the same day or after a week on deposit of 5% of the bank’s claim.

Conclusion

The effect of Order 8 Rule 1 is that the written statement ordinarily is to be filed within a period of 30 days, however, an extension of 90 days can be granted by recording the reasons in writing and the payment of costs as it deems fit to allow the same to be put on record. However, the defendant must file the written statement within a maximum period of 120 days from the date of service of summons.[10]

As procedural law is at “the hands of Judge’s conscience and substantial justice. The humanist rule that the procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel would be wholly” inequitable.[11]


[1] Food Corporation of India v. Yadav, (1982) 2 SCC 499

[2] Siraj v. Prem Nath, AIR 1993 SC 2525

[3] Rakesh Jolly v. Bhim Singh, AIR 2007 HP 38

[4] AIR 1950 Mad. 46

[5] (2014) 2 SCC 302

[6] AIR 2005 SC 2441

[7] AIR 2005 SC 3353

[8] AIR 2010 Jhar 148

[9] AIR 2009 Ori 109

[10] SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd.,

[11] Sushil Kumar v. State of Bihar, AIR 1975 SC 1185


  1. Jurisdiction under Code of Civil Procedure 1908(Opens in a new browser tab)
  2. Procedure to Institute a Suit By or Against a Partnership Firm(Opens in a new browser tab)
  3. General Rules of Filing a Plaint