Order VIII Rule 1 of Code of Civil Procedure 1908 provides for a time limit of a maximum
of 120 days for filing written statements after the service of summons is complete. Whether it
is mandatory or directory depends on the nature of the transaction or the subject matter of the
case.
The interpretation of the said Order can be seen in the catena of judgments by the Hon’ble
Supreme Court. The Supreme Court has clearly stated that the maximum time provided for
filing of written statements cannot exceed 120 days (30 days after delivery of summons +
90 days grace period).
Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, AIR 2005
SC
1. It was observed that 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'.
2. 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.
3. While extending time, it has to be borne in mind that the legislature has fixed the
upper time limit of 90 days. The discretion of the Court to extend the time shall not be
so frequently and routinely exercised so as to nullify the period fixed by Order VIII
Rule 1."
Shoraj Singh vs. Charan Singh, AIR 2021 SC 573
The Supreme Court has observed that the period of 90 days for filing of written statement
under Order VIII Rule 1 of Code of Civil Procedure in civil suits is directory.
The bench of Justices Hemant Gupta and V. Ramasubramanian held the provisions of
Order VIII Rule 1 CPC are mandatory in the Commercial Courts under the Commercial
Courts Act, 2015.
"It may be stated herein that the provisions of Order 8 Rule of CPC are mandatory in the
Commercial Courts under the Commercial Courts Act, 2015", the Supreme Court observed in
the judgment.
FACTS
1. In this case, in a suit for specific performance of contract, the written statement was
not filed by the defendant beyond the time stipulated under Order 8, Rule 1, CPC,
but the petitioner did not file any application disclosing reason for not being able to
file written statement within time.
2. Eight months later, the defendant filed an application in which he stated that the
delay is on account of mistake and oversight. The trial Court rejected the said
application holding that the petitioner has failed to disclose any satisfactory reason
much less any compelling reason for not being able to file written statement within
time.
3. The High Court upheld the said Trial Court order observing that the ground of
'mistake' cannot be said to be a compelling circumstance beyond the control of the
petitioner, so as to condone delay in filing the written statement.
In Commercial Courts
The Commercial Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, 2015, amended this provision by adding the following proviso to Rule 1:
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 written statement on such other day, as may be
specified by the Court, for reasons to be recorded in writing and on payment of such costs as
the Court deems fit, but which shall not be later than one hundred twenty days from the date
of service of summons and on expiry of one hundred twenty days from the date of service of
summons, the defendant shall forfeit the right to file the written statement and the Court shall
not allow the written statement to be taken on record. But this was made applicable to cases
involving commercial disputes.
In SCG Contracts India Pvt. Ltd vs. K.S. Chamankar Infrastructure Pvt. Ltd, AIR 2019
SC the Supreme Court observed that this proviso is mandatory and no written statement can
be taken on record in commercial suits, if it is not filed within 120 days from the date of
service of summons of the Suit.
In a judgment delivered last year, the Supreme Court in Desh Raj v Balkishan, AIR 2020
SC clarified that the mandatory time-line for filing written statement is not applicable to non-
commercial suits. As regards non-commercial suits, the time-line for written statement is
directory and not mandatory, the Court held.
NON COMMERCIAL SUITS
In Salem Advocate Bar association v/s Union of India AIR 2005 SC 3353, the Apex court
has held that the court can grant an extension after the expiry of the 90-days period under
Order VIII Rule 10 but it should not grant such an extension so frequently. Therefore, the
time limit to file a written statement under Order VIII Rule 1 is a directory and mandatory.
In Atcom Technologies Ltd. v/s Y.A Chunawala and co. AIR 2018 SC 639, the Hon’ble
Apex court reiterated that the court can grant an extension for filing written statements after
the expiry of 90 days in exceptional cases. The defendant shall provide very strong valid
reasons to the court for requesting the extension of the 90-day period.
In Deshraj v/s Balkishan 2020, the Hon’ble supreme court reiterated the dictum laid down
in the case of Atcom tech Ltd. v/s Y.A Chunawala 2018, for filing of the written statement in
non-commercial suits. The Supreme Court again emphasized the exceptional circumstances
of a case as a valid reason for granting permission for filing a written statement after the
expiry of 90 days.
