Holding

Order 8 Rule 1 CPC is a procedural, directory provision and does not preclude the court from accepting a written statement filed after the 90‑day period.

Summary

In a civil suit the defendants failed to file their written statement within the 90‑day period prescribed by Order 8 Rule 1 of the Code of Civil Procedure. The trial court refused to accept the belated statement, holding that the provision barred any extension. The defendants appealed; the High Court acknowledged the trial court’s power but declined to set aside its order. The Supreme Court held that Order 8 Rule 1 is a procedural, not substantive, provision and its language, though negative, is directory rather than mandatory. Consequently, the court retains the residuary power to accept a written statement filed after 90 days, especially where the parties are close relatives, and the appeal was allowed, setting aside the High Court’s order.

Issues considered

Whether Order 8 Rule 1 CPC, as amended, makes the 90‑day limit for filing a written statement mandatory or directory.
Whether a court has the power to accept a written statement filed beyond the 90‑day period.
Whether the procedural provision can be relaxed in cases involving close relatives to avoid injustice.

Legislation cited

Code of Civil Procedure, 1908s. Order 8 Rule 1

Subjects

Order 8 Rule 1written statementprocedural lawmandatory vs directorycivil procedureextension of timenatural justicecourt's residuary power

Judgment

[2008] 16 S.C.R. 469

SAMBHAJI & ORS. A
~
v.
GANGABAI &- ORS.
(Civil Appeal No. 6731. of 2008)

NOVEMBER 20, 2008
B
[DR.-ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Code of Civil Procedure, 1908:
G
0.8 r.1, proviso - Written statement- Filing of, after the
extended period of 90 days - Permissibility - Held: Order 8-
r. 1 does not specifically take away power of court to accept
written statement beyond the time provided for - Nature of
the provision contained therein is procedural, hence should D
not ordinarily be construed as mandatory - Merely, because
a provision of law is couched in a negative language implying
-1 mandatory character, the same is not without exceptions -
On facts, grounds indicated by the defendants for seeking
acceptance of the written statement filed belatedly, not without E
substance - Where close relatives are litigants, liberal
approach be adopted - Interpretation of statutes - Procedural
law.

0. 8 r. 1, proviso - Object of - Held: Is to expedite hearing
and not scuttle the same. F
- t-
In a suit, the defendants-appellants did not file written
statement within the period of 90 days. The Trial Court
passed an order directing that no written statement was
to be accepted. The defendants-appellants filed an G
application along with written- statement with two
prayers; first prayer was to set aside the earlier order
relating to non-filing of the written statement and second
to accept the written statement along with the
469 H
470 SUPREME COURT REPORTS [2008) 16 S.C.R.
'
A application. The Trial Court held that in terms of the ~
amended Order VIII Rule 1 CPC, there was .no scope for
accepting a written statement filed beyond the fixed
period of 90 days. The appellants filed writ petition before
the High Court. High Court held that though the view of
B the Trial Court that it had no power to acceptthe written
statement. filed, after 90 days was not correct in the
circumstances of the case, no .case for interference was 1-- ...._
made out. Hence the instant appeal.

Allowing the appeal, the Court
c
HELD: 1. Order 8 Rule 1 CPC after the 1999
ame!'ldment, 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
D 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 v ,,
)-- '
on record though filed beyond the time as provided for.
Further, the nature of the provision contained in Order 8
E Rule 1 is procedural. It is not a part of the substantive law.
Substituted Order 8 Rule 1 intends to curb the mischief
~
of unscrupulous defendants adopting dilatory tactics,
delaying the disposal of cases, causing inconvenience
to the plaintiffs and the petitioners approaching the court
F for quick relief and also the serious inconvenience of the
court faced with frequent prayers for a~journments. The -t· I-
object is to expedite the hearing and not to scuttle the
same. While justice delayed may amount to ·justice
denied, justice hurried may in some cases amount to
G justice. buried. [Para 8] [475-F-H; 476-A]
r
I

2.1. All t_he rules of prpcedure are the handmaids of
justice. The language employed by the draftsman of t-
processual law may be liberal or stringent, but the fact
remains that the object of prescribing procedure is to ~
H -.
'
!
f
SAMBHAJI & ORS. v. GANGABAI & ORS. 471

advance the cause of justice. In an adversarial system, A
no party should ordinarily be denied the opportunity of
participating in the process of justice dispensation.
Unless compelled by express and specific language of
the statute, the provisions of CPC or any other
procedural enactment ought not to be· construed in a B
manner which would leave the court helpless to meet '

• -' extraordinary situations in the ends of justice. The
mortality of justice at the hands of law troubles a Judge's
conscience and points an angry interrogation at the law
reformer. [Paras 9 and 10] (476-8-E] c
2.2. The processual law dominates in certain systems
so as to overpower substantive rights and substantial
justice. The humanist rule that procedure should be the
handmaid, not the mistress, of legal justice compels
consideration of vesting a residuary power in Judges to D
act ex debito justitiae where the tragic sequel otherwise
' would be wholly inequitable. Justice is the goal of
1
jurisprudence, processual, as much as substantive. No
person has a vested right in any course of procedure. He
has only the right of prosecution or defence in the E
manner for the time being by or for the court in which the
case is pending, and if, by an Act of Parliament the mode
of procedure is altered, he has no other right than to
proceed according to the altered mode. A procedural law
should not ordinarily be construed as mandatory, the F
~-+
procedural law is always subservient to and is in aid to
justice. Any interpretation which eludes or frustrates the
recipient of justice is not to be followed. Processual law
is not to be a tyrant but a servant, not an obstruction but
an aid to justice. [Paras 11 and 12] [476-F-H; 477-A] G
2.3. Though the power of the Court under the proviso
appended to Rule 1 of Order 8 CPC is circumscribed by
the words "shall not be later than ninety days" but the
consequences flowing from non-extension of time are
H
472 SUPREME COURT REPORTS [2008] 16 S.C.R.

A not specifically provided for 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,
wherf called upon to interpret the nature of the provision,
s may, 'keeping in view the entire context ·in which the
provision came to be enacted, hold the same to· be
directory 'thou~h worded in the negative form. [Para 13] ·~ .~
[477~C-D]

C Salem Advocate Bar Assn. v. Union of India, (2005) 6
sec 344, relied on.
Salem Advocate Bar Association v. Union of India, (2003)
1 sec 49, referred to.

D 3. In the instance case, the trial court proceeded on
the _erroneous premises that there was no scope to.
accept the written .statement.after,90 days. The High ,.
Court ~Y the impugned order held. that thoug~ it had. ~ '

power,.no case was niade out to a~cept the.prayer. The
E grounds incHcaled by the appellants seeking acceptance
of the written statement filed belatedly, cannot be
considered to be triv.ial or without substance. In the case
of this nature where close relatives are litigants a liberal
approach. is called for. [Para 15] [479".G-H; 480-A]
F Case Law Reference:
•' +-''
c2005) s sec 344 · relied on Para 14

(2003) 1 sec 49 referred to Para 14
G CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6731 of 2Q08.
' ;. +·
From the Judgment a.nd final Order dated 7.6.2006 of the
High _Court of Judicature at Bombay, Bench at Aurangabad in
H Writ Petition No.5601 of 2004.
SAMBHAJI & ORS. v. GANGABAI & ORS. 473

Sudhanshu S. Choudhari, Naresh Kumar, Rashmi Tyagi A
and Arundhati for the Appellants.

M.Y. Deshmukh and Rameshwar Prasad Goyal for the
Respondents.
B
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Bombay High Court dismissing the Writ c
petition filed by the appellants questioning correctness of the
order passed by the trial court rejecting the application for
setting aside the order directing that no written statement was
to be accepted and also not allowing the appellants who are
the defendants in RCS No.99 of 2003 filed by respondent No.1 D
the plaintiff to file written statement. Rest of the respondents are
the defendants in the suit. Admittedly an order was passed
stating that the written statement was not filed within the period
of 90 days. An application was filed alongwith the written
statement with two prayers; first prayer was to set aside the E
earlier order relating to non-filing of the written statement and
second to accept the written statement along with the
application. The trial court held that in terms of the amended
Order VI 11 Rule 1 of the Code of Civil Procedure, 1908 (in short
the 'CPC'), there was no scope for accepting a written
. _., statement filed beyond the fixed period of 90 days. The order
F
was challenged before the High Court which noted that though
the view of the trial court that it had no power to accept the
written statement filed after 90 days was not correct in the
circumstances of the case no case for interference was made
out. G

3. Learned counsel for the appellants submitted that the
factual scenario clearly showed that the trial court and the High
Court erred in not accepting the prayers made.
1-ri
474 SUPREME COURT REPORTS- [2008] 16 S.C.R.

A 4. Learned counsel for the respondent No.1 on the other
hand stated that the plaintiff is an old lady in her 80's and with
a view to prolong the proceedings the appellants are
deliberately trying to harass her.

8 5. The Code of Civil Procedure enacted in 1908
consolidated and amended the laws relating to the procedure
of the Courts of Civil Judicature. It has undergone several +- .,
amendments by several Acts of the Central and State
Legislatures. Under Section 122 CPC the High Courts have
power to amend by rules, the procedure laid down in the orders.
c In exercise of these powers various amendments have been
made in the orders by various High Courts. Amendments have
also been made keeping in view the recommendations of the
Law Commission. Anxiety of Parliament as evident from the
amendments is to secure an early and expeditious disposal of
D civil suits and proceedings without sacrificing the fairness of
trial and the principles of natural justice inbuilt in any sustainable
/
procedure. The Statement of Objects and Reasons for enacting ),-
the Code of Civil Procedure (Amendment) Act, 1976 (104 of
1976) (in short "the 1976 Amendment Act") highlights the
E following basic considerations in enacting the amendments:

"5. (i) that a litigant should get a fair trial in
accordance with the acce-pted principles of natural justice;

(ii) that every effort should be made to expedite the
F -t-~
disposal of civil suits and proceedings, so that justice may
not be delayed;

(iii) that the procedure should not be complicated and
should, to the utmost extent possible, ensure fair deal to
G the poorer sections of the community who do not have the
means to engage a pleader to defend their cases."
+-
6. By the 1999 Amendment Act the text of Order 8 Rule 1
was sought to be substituted in a manner that the power of the
H

l
SAMBHAJI & ORS. v. GANGABAI & ORS. 475
[DR. ARIJIT PASAYAT, J.]
I ----t,
court to extend the time for filing the written statement was so A
circumscribed as would not permit the time being extended
beyond 30 days from the date of service of summons on the
defendant. Due to resistance from the members of the Bar
against enforcing such and similar other provisions sought to
be introduced by way of amendment, the Amendment Act could 8
not be promptly notified for enforcement. The text of the
~
provision in the present form has been introduced by the
~ Amendment Act with effect from 1-7-2002. The purpose of
such-like amendments is stated in the Statement of Objects and
Reasons as "to reduce delay in the disposal of civil cases". c
7. The text of Order 8 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, D
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 E
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 8 Rule 1 after the amendment casts an obligation
~ -t on the defendant to file the written statement within 30 days from
F
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 G
~t provision contained in Order 8 Rule 1 is procedural. It is not a
part of the substantive law. Substituted Order 8 Rule 1 intends
to curb the mischief of unscrupulous. defendants adopting
dilatory tactics, delaying the disposal of cases, causing
H
..

476 SUPREME COURT REPORTS [2008] 16 S.C.R.

It--
,, 1
A inconvenience to the plaintiffs and the petitioners approaching
the court for quick relief and also the ,serious inconvenience of
the court faced with frequent prayers for adjournments. The
object is to expedite the hearing and not to scuttle the same.
While justice delayed may amount to justice denied, justice
8 hurried may in some cases amount to justice buried.
9. All the rules of procedure are the handmaids of justice. +- "'
The language employed by the draftsman of processual law .....
may 'be liberal or stringent, but the fact remains that the object
of pre~cribing procedure is to advance the cause of justice. In
c an adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice
dispensation. Unless compelled by express and specific
language of the statute, the provisions of CPC or any other
procedural enactment ought not to be construed in a manner
D which would leave the court helpless to meet extraordinary
situations in the ends of justice.
~
'(

10. The mortality of justice at the hands of law troubles a
Judge's conscience and points an angry interrogation at the law
E reformer.

11. The processual law so dominates in certain systems
as to overpower substantive rights and substantial justice. The
humanist rule that procedure should be the handmaid, not the
mistress, of legal justice compels consideration of vesting a
F +~
residuary power in Judges to act ex debito justitiae where the
tragic sequel otherwise would be wholly inequitable. Justice is
the goal of jurisprudence, processual, as much as substantive.
No person has a vested right in any course of procedure. He
has only the right of prosecution or defence in the manner for
G the time being by or for the court in which the case is.pending,
and if, by an Act of Parliament the mode of procedure is altered. -)r •
he has no other right than to proceed according to the altered
mode. A procedural law should not ordinarily be construed as
mandatory, the procedural law is always subservient to and is
H
~·

SAMBHAJI & ORS. v. GANGABAI & ORS. 477
[DR. ARIJIT PASAYAT, J.]
------1, A
in aid to justice. Any interpretation which eludes or frustrates
the recipient of justice is not to be followed.

12. Processual law is not to be a tyrant but a servant, not
an obstruction but an aid to justice. A Procedural prescription
is the handmaid and not the mistress, a lubricant, not a resistant B
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 B is
circumscribed by the words "shall not be later than ninety days''
but the consequences flowing from non-extension of time are c
not specifically provided for 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 D
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 th~ E
Amendment Act and the 1999 Amendment Act was rejected
by this Court in Salem Advocate Bar Association v. Union of
India [2003(1) sec 49]. However, to work out modalities in
respect of certain provisions a committee was constituted. After
receipt of the committee's report the matter was considered by F
- "* a three-Judge Bench in Sa/em Advocate Bar Assn. v. Union
of India [2005(6}SCC 344]. As regards Order 8 Rule 1 the
committee's report is as follows: (SCC pp. 362-63, paras 15-
18)

"15. The question is whether the court has any power G
~ or jurisdiction to extend the period beyond 90 days. The:
maximum period of 90 days to file written statement has
been provided but the consequences on failure to file
written statement within the said period .have not been
:.. provided for in Order 8 Rule 1. The point for consideration H
\'!"

478 SUPREME COURT REPORTS [2008] 16 S.C.R.

,b
A is whether the provision providing for maximum period of
ninety days is mandatory and, therefore, the court· is
altogethe~ powerless to extend the time even in an
exceptionally hard case.

B 16. It.has been common practice for the parties to
take long adjournments for filing written statements. The
legislature with a view to curb this practice and to avoid +

• unnecessary delay and adjournments, has provided for the
maximum period within which the written statement is

• c required to be filed. The mandatory or directory nature of
Order 8 Rule 1 shall have to be determined by having
regard to the object sought to be achieved by the
amendment. It is, thus, necessary to find out the intention
of the legislature. The consequences which may follow and
whether the same were intended by the legislature have
D also to be kept in view.

17. In Raza Buland Sugar Co. Ltd. v. Municipal ,t-
Board, Rampur [AIR 1965 SC 895] a Constitution Bench
of this Court held that the question whether a particular
E provision is mandatory or directory cannot be resolved by
laying down any general rule and it would depend upon the
facts of each case and for that purpose the object of the
statute in making out the provision is the determining
factor. The purpose for which the provision has been made
F and its nature, the intention of the legislature in making the
-t--
provision, the serious general inconvenience or injustice
to persons resulting from whether the provision is read one
way or the other, the relation of the particular provision to
other provisions dealing with the same subject and other
G considerations which may arise on the facts of a particular
case including the language of the provision, have all to
I be taken into account in arriving at the conclusion whether +-·
I a particular provision is mandatory or directory.

In Sangram Singh v. Election Tribunal, Kotah [AIR
H "-
SAMBHAJI & ORS. v. GANGABAI & ORS. 479
[DR. ARIJIT PASAYAT, J.]
. ~
1955 SC 425] considering the provisions of the Code A
dealing with the trial of suits, it was opined that: (SCR
pp.8-9)

'Now a code of procedure must be regarded as
such. It is procedure, something designed to facilitate B
justice and further its ends: not a penal enactment for
punishment and penalties; not a thing designed to trip
people up. Too technical a construction of sections that
leaves no room for reasonable elasticity of interpretatio n
1

should therefore be guarded against (provided always that
justice is done to both sides) lest the very means designed
c
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 D
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 E
clearly defined they must be given effect to. But taken by
and large, and subject to that proviso, our laws of
procedure should be construed, wherever that .is
reasonably possible, in the light of that principle.' " [See:
- f SK. Salim Haji Abdul Khyumsab v. Kumar (2006(1) SCC F
46)) and R.N. Jadi & Bros. v. Subhashchandra [2007(6)
sec 4201

15. In the instance case the trial court proceeded on the
erroneous premises that there was no scope to accept the
G
written statement after 90 days. The High Court by the
.. impugned order held that though it had power, no case was
made out to accept the prayer. We have considered the grounds
indicated by the appellants seeking acceptance of the written
statement filed belatedly. They cannot be considered to be trivial
H
480 SUPREME COURT REPORTS [2008) 16 S.C.R.

A or without substance. In the case of this nature where close
relatives are litigants a liberal approach is called for. In the
circumstances we set aside the impugned order of the High
Court affirming the order passed by the trial court refusing
acceptance of the written statement. The matter is not very
s complex. We request the trial court to complete trial of the suit
within the period of six months. The appeal is allowed without
any order as to costs.
D.G. Appeal allowed.