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TMI Blog2005 (8) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on 10.11.2003 and the written statement was filed on 10.7.2004. According to the learned counsel for the appellant, the written statement should not have been entertained as it was filed beyond 30 days (which is the normal period) and even beyond 90 days which is the maximum period. By order dated 12.8.2004 learned Subordinate Judge accepted the written statement which had been filed and rejected the prayer of the appellant to reject the written statement filed. According to the appellant after amendment of CPC the Court has no discretion to extend the period for filing the written statement beyond 90 days from the date of service of summons even where the Court extends the time beyond 30 days. 4. Learned counsel for the appellant submitted that the amendment requiring filing of the written statement within the stipulated time is intended to avoid delay in disposal of suits and to avoid unnecessary harassment to the litigants. Learned counsel for the respondents on the other hand submitted that the provisions of Order VIII Rule 1 of CPC are directory and when written statement has already been filed and accepted by the trial Court, the High Court has rightly rejected appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disposal of civil cases". 7. The text of Order VIII, Rule 1, as it stands now, reads as under: - "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." 8. Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 13. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words - "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. 14. Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India (JT 2002 (9) SC 175). However to work out modalities in respect of certain provisions a Committee was constituted. After receipt of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tah & Anr. [AIR 1955 SC 425], considering the provisions of the Code dealing with the trial of the suits, it was opined that: "Now a code of procedure must be regarded as such. It 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 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. Next, there must be ever present to the mind the fact that 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 exceptions 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII 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 VIII Rule 1 providing for 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 disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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