Holding

Order 8 Rule 1 of the CPC is directory, and delay in filing a written statement may be condoned if exceptional circumstances are shown.

Summary

The appellant, a defendant in a partition suit, failed to file his written statement within the 30‑day period and beyond the 90‑day limit prescribed by Order 8 Rule 1 of the CPC because his counsel advised him to wait for the outcome of a pending appeal and the case files were not available. Both the trial court and the High Court rejected his application for condoning the delay, relying on the proviso to Order 8 Rule 1. The Supreme Court examined whether the provision is mandatory or directory and, relying on Salem Advocate Bar Association v. Union of India, held that it is directory and may be relaxed in exceptional circumstances. The Court found the appellant’s reasons—bonafide belief and lack of records—to constitute sufficient cause for condonation. Consequently, the appeal was allowed, the lower court order set aside, and the written statement accepted, with the trial court directed to proceed with the suit expeditiously.

Issues considered

Whether delay in filing a written statement beyond the 90‑day period under Order 8 Rule 1 can be condoned.
Whether the provisions of Order 8 Rule 1 of the CPC are mandatory or directory.
Whether the appellant’s circumstances constitute sufficient cause for condonation of delay.

Legislation cited

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

Subjects

Order 8 Rule 1written statementcondonation of delaydirectory provisionmandatory provisioncivil procedurepartition suitexceptional circumstances

Judgment

[2008] 5 S.C.R. 963

"(

ZOLBA A
\I.
KESHAO AND ORS.
(Civil Appeal No. 2360 of 2008)
~
APRIL 1, 2008
B
. (TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.)

Code of Civil Procedure, 1908:

Or. 8, r. 1 - Filing of written statement after expiry of
statutory period - HELD: It would be open to the court to permit c
defendant to file written statement if exceptional circumstances
have been made out - Unless compelled by express and
specific language of statute, provisions of Order 8 Rule 1 or
any procedural enactment should not be construed in a manner
-;
which would leave the court helpless to meet extraordinary D
)< situations in the ends of justice - In the instant case, facts
stated would constitute sufficient cause for condoning delay
in filing written statement and it has to be taken that non-
availability of records in the trial court had prevented the
defendant from filing written statement within the period of E
limitation which was an exceptional circumstance - High Court
as well as trial court erred in rejecting application for condoning
' delay in filing written statement - Application is allowed and
~
the written statement accepted - Trial court to proceed with
hearing of the suit and dispose of the same expeditiously. F
, Salem Advocate Bar Association, Tamil Nadu vs. Union
of India AIR 2005 SC 3353 - relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2360 of 2008.
G
From the Judgment and final Order dated 11/10/2006 of
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur
• in W.P. No. 4019/2006

963 H
964 SUPREME COURT REPORTS [2008] 5 S.C.R.

A Shivaji M. Jadhav for the Appellant.
The Order of the Court was delivered by

1. Leave granted.
2. In spite of due service, no one has entered appearance
B on behalf of the respondents. Even at the time of hearing of this
appeal, the respondents. had failed to appear to contest the
appeal.

3. This appeal is directed against the judgment and order
c dated 11th of October, 2006 passed by a learned Judge of the
High Court of Judicature at Bombay, Nagpur Bench in Writ
Petition No.4019 of 2006 by which the learned Judge had
dismissed the writ petition filed by the appellant for condoning
the delay of 35 days in filing the written statement in a suit for
partition and separate possession of agricultural land filed by
0
the respondents.
4. We have heard the learned counsel appearing for the
appellant and also examined the impugned order of the High
Court as well as of the trial court and also the application for
E acceptance of the written statement, which was filed out of time.
5. Having heard the learned counsel for the appellant and
after considering the materials on record, we are of the view
that in the facts and circumstances of the present case, the High
Court ought to have condoned the delay in filing the written
F statement under Order 8 Rule 1 of the Code of Civil Procedure
(in short "the CPC"), even if some delay was caused in filing the ~·
same. The appellant was the defendant in the suit for partition
and separate possession of agricultural land falling under Gat
No.243 admeasuring 0.50 H.R. situated at Village Mouza- Kojai
G and house No.139 situated at Village Gaijapur, Maharashtra
(herein after referred to as the 'suit properties'). The plaintiffs/
respondent Nos. 1 to 5 have also sought for a declaration to the
effect that a Will dated 5th of June, 2003 executed in favour of •
the respondent No.6 (petitioner No. 2 in the High Court) was
H illegal, null and void and also for permanent injunction restraining
ZOLBA v. KESHAO AND ORS. 965

--;
the appellant from making any construction over the open land A
falling in house No.139.A perusal of the record would show that
the respondents in the pending suit moved an application for
grant of temporary injunction against the appellant. By an order
dated 29th of April, 2005, the Civil Judge, Junior Division,
Nagbhid granted temporary injunction in favour of the B
I respondents. Feeling aggrieved, the appellant has preferred a
misc. civil appeal before the District Judge, Chandrapur and
the same is now pending decision. The appellant under bonafide
i belief and on instruction of his counsel in the trial court could not
file the written statement as he was advised by his counsel that c
the written statement could be filed after the decision of the
appeal pending before the district court. However, when advised
by his counsel, the appellant filed an application for accepting
the written statement on condonation of delay. The learned Civil
Judge, Junior Division, Nagbhid rejected the said application
D
for condoning the delay and refused to permit the appellant to
file the written statement in view of the proviso to Order 8 Rule 1
of the CPC. A review petition was filed which was also rejected
by an one line order. It is against this order a writ petition was
moved before the High Court, which was also dismissed. Before
we look into the provisions under Order 8 Rule 1 of the CPC, E
we need to record that the learned counsel appearing for the
appellant contended before us that the provisions for filing the
written statement under Order 8 Rule 1 of the CPC are directory
1
in nature and therefore, it was open to the court to condone the
1
delay in filing the written statement and such written statement F
--, filed by the appellant could be accepted. Before we consider
whether the provisions under Order 8 Rule 1 of the CPC are
mandatory or directory in nature, we need to consider the
provisions under Order 8 Rule 1 of the CPC which run as
under: - G
"The defendant shall, within thirty days from the date of
service of summons on him, present a written statement
j
of his defence :
Provided that where the defendant fails to file the written H
966 SUPREME COURT REPORTS [2008) 5 S.C.R.

A 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 ~ays from
the date of service of summons."
B 6. As noted herein earlier, the trial court as well as the High
Court, relying on the proviso to Order 8 Rule 1 of the CPC,
refused to permit the appellant to file the written statement on
the ground that such written statement was filed after 90 days
from the date of service of summons.
c
7. Considering the facts and circumstances of the present
case and the statements made in the application for condoning
the delay in filing the written statement, we are not in a position
to hold that the appellant was not entitled to file the written
statement even after the expiry of the period mentioned in the
D
proviso to Order 8 Rule 1 of the CPC. After reading the
provisions, in particular the proviso to Order 8 Rule 1 of the ~

CPC, we are unable to hold that the provisions under Order 8
Rule 1 are mandatory in nature. In Sa/em Advocate Bar
Association, Tamil Nadu vs. Union of India [AIR 2005 SC
E 3353], it has been clearly held that the provisions including the
proviso to Order 8 Rule 1 of the CPC are not mandatory but
directory. It has been held in that decision that the delay can be
condoned and the written statement can be accepted even after
the expiry of 90 days from the date of service of summons in
F exceptionally hard cases. It has also been held in that decision
that the use of the word "shall" in Order 8 Rule 1 of the CPC by ,,,.
itself is not conclusive to determine whether the provision is
mandatory or directory. The use of the word "shall" is ordinarily
indicative of mandatory nature of the provision but having regard
G to the decision in that case, the same can be construed as
directory. In paragraph 21 of the said decision, this court observed
as follows: -
"The use of the word 'shall' in order 8 Rule 1 by itself is '
H
. not conclusive to determine whether the provision is
ZOLBA v. KESHAO AND ORS. 967

,. mandatory or directory. We have to ascertain the object A
which is required to be served by this provision and its
design and context in which it is enacted. The use of the
word 'shall' is ordinarily indicative of mandatory nature of
the provision but having regard to the context in which it
is used or having regard to the intenti6n of the legislation, B
the same can be construed as directory. The rule in
question has to advance the cause of justice and not to
defeat it. The rules of procedure are made to advance
the cause of justice and not to defeat it. Construction of
the rule or procedure which promotes justice and prevents
miscarriage has to be preferred. The rules or procedure
c
are hand-maid of justice and not its mistress. In the
present context, the strict interpretation would defeat
;ustice."
8. Therefore, following the principles laid down in the D
decision, as noted hereinabove, itwould be open to the court to
)' permit the appellant to file his written statement if exceptional
circumstances have been made out. It cannot also be forgotten
that in an adversarial system, no party should ordinarily be
denied the opportunity of participating in the process of justice E
dispensation. Therefore, unless compelled by express and
specific language of the statute, the provisions of Order 8 Rule
1 of CPC or any procedural enactment should not be construed
in a manner, which would leave the court helpless to meet
extraordinary situations in the ends of justice. Keeping this F
principle as laid down by this court in the case of Salem

' -0..,
Advocate Bar Association (supra) in mind and in view of our
observations made herein above, we now look into the
~
averments made in the application for condoning the delay in
filing the written statement. In the application, it has been stated
G
that on instruction of his counsel in the trial court, the written
statement was not filed within the period of limitation as the
appellant was under bonafide belief that the written statement
, shall be filed after the decision of the appeal by the District Court.
The written statement was, however, filed and the records of
H

•
968 SUPREME COURT REPORTS [2008] 5 S.C.R.

A the case were called from his lawyer who has been conducting .-
his case in the appeal pending before the District Court. The
facts disclose that the misc. appeal has been filed against an
order of injunction before the District Court - Chandrapur
whereas the suit is pending before the Civil Judge, Junior
B Division, Nagbhid. Since the appeal was pending, the records
of the appellant were then lying with the lawyer at Chandrapur.
Therefore, the file was not available with the lawyer of the
appellant at Nagbhid and therefore, the written statement could
not be filed within the period of limitation. Such being the position,
C in our view, the facts stated would constitute sufficient cause for
condoning the delay in filing the written statement and it has to
be taken that the non-availability of records at Nagbhid had
prevented the appellant from filing the written statement within
the period of limitation which in our view was an exceptional
D case constituting sufficient cause for condoning the delay in filing
the written statement. In this view of the matter, in the facts and
circumstances of the case and in view of the reasoning given
above, we hold that the High Court as well as the trial court had
erred in rejecting the application for condoning the delay in filing
the written statement. Accordingly, the application for condoning
E the delay is allowed and the written statement filed by the
appellant is accepted and consequent thereupon, the impugned
ord.er which affirmed the order of the trial court rejecting the
application for condoning the delay in filing the written statement
is set aside. The trial court shall now proceed with the hearing
F of the suit and dispose of the same positively within one year
from the date of supply of a copy of this order to it.
9. For the reasons aforesaid, this appeal is allowed to the
extent indicated above. There will be no order as to costs.
G R.P. Appeal allowed.

•.