Holding

The High Court exceeded its jurisdiction by setting aside the trial court’s order without assigning reasons, and its order is set aside.

Summary

The appellant filed a suit for permanent and temporary injunction in 2002. The respondents, served with summons, repeatedly sought extensions to file their written statement under Order 8 Rule 10 of the CPC, but the trial court rejected their application and set a date for recording evidence. The respondents filed a revision petition, which was dismissed, and then a writ petition before the Allahabad High Court. The High Court set aside the trial court’s order, allowed the written statement to be kept on record and permitted the respondents to contest the suit, subject to a cost deposit. The appellant appealed, contending that the High Court exceeded its jurisdiction under Articles 226 and 227 and that the trial court’s reasons were sufficient. The Supreme Court held that the High Court interfered without assigning any reason, thereby exceeding its limited supervisory jurisdiction, and affirmed that Order 8 Rule 1 is directory but extensions beyond 90 days must be granted only in rare, justified cases. Consequently, the High Court’s order was set aside and the appeal was allowed without costs.

Issues considered

The High Court’s jurisdiction under Articles 226 and 227 to set aside a trial court order rejecting condonation of delay in filing a written statement.
Whether Order 8 Rule 1 (and Rule 10) of the CPC is a mandatory or directory provision and the scope of extending time beyond the 90‑day period.
Whether the trial court and revisional court provided sufficient reasons to justify rejecting the respondents’ application, thereby precluding interference.

Legislation cited

Code of Civil Procedure, 1908s. Order 8 Rule 1, s. Order 8 Rule 10, s. Section 148
Constitution of Indias. Article 226, s. Article 227

Subjects

Order 8 CPCwritten statementcondonation of delayjurisdiction of High CourtArticles 226 and 227procedural improprietydirectory provisionextension of time

Judgment

[2008] 17 S.C.R. 20

A MOHAMMED YUSUF
II.
FAIJ MOHAMMAD & ORS .
. (Civil Appeal No. 7209 of 2008)

DECEMBER 2, 2008
8
[S.B. SINHA AND CYRJAC JOSEPH, JJ.]

CONSTITUTION OF IND/A, 1950:

c Articles 226 and 227 - High Court in writ jurisdiction
setting aside ord,ers of trial and revisional courts whereby
they had rejected defendant's application under Or.8 r.10
CPC for extending time to file written statement - HELQ:
Jurisdiction of High Court under Articles 226 and 227 is
D limited - It could have set-aside the orders only on the ground
of illegality, iffationality and procedural impropriety .;.. Trial
court had assigned sufficient and cogent reasons in support
of its orders - High Court effed in setting aside the orders ~

without assigning any reason therefor - Judgment of High
Court set aside - Code of Civil Procedure, 1908 - Or. 8,
E
r.10.

R.N. Jadi & Brothers and Ors. Vs. Subhashchandra
(2007) 6 SCC 420 and M. Srinivasa Prasad & Ors. Vs. The
Comptroller & Auditor General of India & Ors. 2007 (5)
F SCALE 171, relied on.

Kai/ash Vs. Nanhku and Ors. (2005) 4 SCC 480,
referred to.

Case Law Reference:
G
(20QS) 4 sec 480 referred to para 11
2007 (5) SCALE 171 relied on para 13
(2001) s sec 420 relied on para 13
H 20
MOHAMMED YUSUF v. FAIJ MOHAMMAD & ORS. 21

CIVIL APPELLATE JURISDICTION : Civil Appeal No .. A
-I
7209 of 2008 .
......
From the final Judgment and Order dated 20.9.2007 of the
High Court of Judicature at Allahabad in Writ Petition No.
45197 of 2007.
B
R.S. Hegde, Ohandra Prakash and P .P. Singh for the
Appellant.
~
M.P. Shorawala, Jyoti Saxena, Vipin K. Saxena and T.N.
Saxena for the Respondents.
c
The following Order of the Court was delivered:

• ORDER
Leave granted.
D
1. This appeal is directed against a judgment and order
_.._ dated 20.9.1997 passed by a learned Single Judge of the High
Court of Judicature at Allahabad allowing the writ petition filed
by the respondents herein questioning the validity of an order
dated 29.8.2007 passed by the learned Additional District E
Judge, Mathura in Civil Revision No. 322/2005 affirming the
order dated 24.10.2005 passed by the learned Civil Judge
whereby and whereunder while rejecting the application filed
by the appellant herein under Order 8 Rule 10 of the Code of
Civil Procedure, a date was fixed for recording the evidence F
. ..._
of the plaintiffs and the application filed by the respondents
--< herein praying for condoning the delay in filing the written
statement was rejected.

2. The basic fact of the matter is oot in dispute.
G
3. Appellant herein filed a suit for a decree for permanent
..,. injunction in the year 2002. A separate application for grant of
temporary injunction was also filed. Summons upon the
defendants were served on 6.7.2002. The defendants
appeared through their learned advocate on 19.7.2002. H

'
22 SUPREME COURT REPORTS [2008) 17 S.C.R.

.A 4. Appellant filed an appiication for grant of temporary
~
injunction which was rejected on 28.1.2004. An appeal was
preferred thereagainst which wa·s disposed of by ~n order
dated 14.5.2004. It is neither in doubt nor in ·dispute th~t the
defendants-respondents filed applications for extensi9n 'of time
B for filing written statement number of times. The matter was also
adjourned on one ground or the other.

5, On or about 31.1.2005, the appellant also filed an
y
application before the learned trial Judge for pronouncing
judgment in terms of Order 8 Rule 1O of the Code of Civil
c Procedure, inter a/ia, on the premise that the defendants-
respondents did not file any written statement. It is on_ the same
date the defendants filed an application for filing written , ....
statement. No application for condonation of del~y in filing the
written statement was, however, filed. -
D
6. However, on 23.9.2005, as indicated hereinbefore by
reason of an order dated 24.10.2005, while rejecting the said
~--
application of the respondent, the trial Judge allowed the plaintiff
to ex~mine his own witnesses in supportof his case. ..
E 7. A Revision Petition was filed by the respondents which
by reas_on of an order dated ~9.8.2007 was dismissed by the
teamed, District
. Judge.
8. Being aggrieved by and dissatisfied with the said order,
F the respondents filed ·a Writ Petition which was marked as -+
CMWP No. 45197/2007 before the High Court. By reason of
the impugn~d judgment, the High Court has allowed the said
Writ Petition, directing:

"Considering the facts and circumstances of the
G case, this Court is of the opinion that the petitioner should
be permitted to contest the suit on merit.

In view of the aforesaid, the order of the trial court
refu~ing to keep the written statement on record is set
H aside. The written statement sliall be kept on the record
I
MOHAMMED YUSUF v. FAIJ MOHAMMAD & ORS. 23

. and the defendant-petitioner shall be permitted to contest A
-I the matter on merit subject to payment of cost of
Rs.10,000/-, which shall be deposited by the defendant-
petitioner in favour of the plaintiff by means of a bank draft
within two weeks. The amount so deposited can be
withdrawn by the plaintiff. The writ petition is allowed." B
9. Mr. R.S. Hegde, learned counsel appearing on behalf
of the appellant would submit that keeping in view the fact that
the summons upon the defendants were served on 6.7.2002
and no step having been taken to file written statement for a
period of three years and only on 31.5.2005 1 an application for c
filing written statement having been filed, the High Court
committed a serious error in passing the in:'pugned judgment.

10. Learned counsel appearing on behalf· of the
respondents, on the other hand, would contend that from a D
perusal of the order-sheet before the trial Court, it would appear
that dates after dates were fixed for filing written statement and,
. ..._ furthermore, having regard to the fact that the appellant himself
preferred an appeal before the learned District Judge against
an order rejecting his application for grant of temporary E
injunction, the written statement could not be filed.

11. It is urged that the provisions of Order 8 Rule 1 of the
Code of Civil Procedure having been held to be directory in
nature by this Court in Kai/ash Vs. Nanhku and Ors. (2005) 4
SCC 480, this Court may not exercise its discretionary F
jurisdiction under Article 136 of the Constitution of India.

12. Order 8 Rule 1 of the Code of Civil Procedure reads
thus:

"[1. Written statement:- The defendant shall, within G
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 H
24 SUPREME COURT REPORTS [2008] 17. S.C.R.

A 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.]
13. Although in view of the terminologies used therein the
8 period of 90 days prescribed for filing written statement
appears to be a mandatory provision, this Court in Kai/ash
(supra) upon taking into consideration the fact that in a given
case·the-defendants may face extreme hardship in not being
. abi€do:defend the suit only because he had not filed written
c statement within a period of 9o days, opined that the said
provision was directory in nature. However, while so holding this
Court in no uncertain terms stated that defendants may be
permitted to file written statement after expiry of period of 90
days only on exceptional situation. The question came up for
D consideration before this Court in M. Srinivasa Prasad & Ors.
Vs. The Comptroller & Auditor General of India & Ors. 2007
(5) SCALE 171, wherein a Division Bench of this Court upon
~-
noticing Kai/ash-{slJpra) held as under:
"7. Since neither the trial Court nor the High Court
E have indicated any reason to justify the acceptance of the
written statement after the expiry of time fixed, we set
· aside the orders of the trial Court and that of the High
Court. The matter is remitted to the trial Court to consider
the matter afresh in the light of what has been stated in
F Kailash's ·case (supra). The appeal is allowed to the
-t'
aforesaid extent with no order as to costs."
14. lhe matter was yet again considered by iii three-judge ...
Bench of this Court in R.N. Jadi & Brothers and Ors. Vs.
Subhashchandra (2007) 6 SCC 420. P.K. Balasubramanyan
G
J., who was also a member in Kailash(supra) in his concurring r
judgment stated the law thus:
y
· "14. It is true that procedure is the handmaid of
justice. The court must always be anxious to do justice and
H to prevent victories by way of technical knockouts. But how
MOHAMMED YUSUF v. FAIJ MOHAMMAD & ORS. 25

far that concept can be stretched in the context of the A
amendments brought to the Code and in the light of the
mischief that was sought to be averted is a question that
has to be seriously considered. I am conscious that I was
a party to the decision in Kai/ash, Vs. Nanhku which held
that the provision was directory and not mandatory. But B
there could be situations where even a procedural provision
could be construed as mandatory, no doubt retaining a
power in the Court, in an appropriate case, to exercise a
... jurisdiction to take out the rigour of that provision or to
mitigate genuine hardship. It was in that contest that in c
Kailash Vs. Nanhku it was stated that the extension of time
beyond 90 days was not automatic and that the court, for
reasons to be recorded, had to be satisfied that there was
sufficient justification for departing from the time-limit fixed
by the Code and the power inhering in the court in terms
D
of Section 148 of the Code. Kailash is no authority for
receiving written statement, after the expiry of the period
;..__ permitted by law, in a routine manner.

15. A dispensation that makes Order 8 Rule 1
directory, leaving it to the courts to extend the time E
indiscriminately would tend to defeat the object sought to
be achieved by the amendments to the Code. It is,
therefore, necessary to emphasise that the grant of
extension of time beyond 30 days is not automatic, that it
should be exercised with caution and for adequate reasons F
and that an extension of time beyond 90 days of the service
of summons must be granted only based on a clear
satisfaction of the justification for granting such extension,
the court being conscious of the fact that even the power
of the court for extension inhering in Section 148 of the G
Code, has also been restricted by the legislature. It would
be proper to encourage the belief in litigants that the
imperative of Order 8 Rule 1 must be adhered to and that
only in rare and exceptional case, will the breach thereof
will be condoned. Such an approach by courts alone can
H
26 SUPREME COURT REPORTS [2008] 17 .s.C.R.
e
~
A carry forward the legisfative intent of avoiding delays or at
least in curtailing the delays in the disposal of suits filed in ~

courts. The lament of Lord Denning in Allen Vs. Sir Alfred
McA/pine & Sons that law's delay have been intolerable
and last so long as to turn justice sour, is true of our legal
B system as well. Should that state of affairs continue for all
times?"
15. In view <>{the authoritative pronouncements of this
Court, we iJre of the opinion that the High Court should not have
allowed the writ petition filed by the respondent, particularly,
c when both the learned trial judge as also the Revisional Court
had assig~ed sufficient and cogent reasons in support of their
orders.
16. As indicated hereinbefore, the High Court allowed the
D writ petition and thereby set aside the orders passed by the trial
Court as also the Revisional Court without assigning any reason
therefor. The jurisdiction of the High Court under Article 226 and
227 of the Constitution of India is limited. It could have set aside, .....
the orders passed by the learned trial Court and the Revisional
~
E Court only on limited ground, namely, illegality, irrationality and
procedural impropriety. The High Court did not arrive at a finding
that there had been a substantial failure of justice or the orders
passed by the trial Court as also by the Revisional. Court \

contained error apparent on the face of the record warranting
interference by a superior Court in exercise of its supervisory
F
jurisdiction under Article 227 of the Constitution of India. -f' "
17. For the reasons stated above, the impugned judgment
of the High Court cannot be sustained. It is set aside
accordingly. The . appeal'
. ~
is allowed.
. In the facts and "
G circumstances of this case, there shall be no order as to costs.
18. In this view of the matter' the respondents would be ..'
y
entitled to withdraw the sum of Rs.10,000/- deposited by them
as costs.
H R.P. Appeal allowed.