Sufficient cause for an extension of time for filing written statement

Introduction

The written statement is part of a civil suit. The written statement is a reply filed by the defendant to the suit filed by the plaintiff. The term written Statement is nowhere defined in the Civil Procedure Code. However, this term can be understood as the pleadings of the defendant wherein the defendant deals with the facts alleged in the plaint.

It is the primary defense of the defendant. In a way of challenging the plaint, the defendant can deny the suit filed by the plaintiff and files a detailed explanation with reason. In this, he will also plead new facts and set up the counterclaim and set-off. All the general rules that were mentioned in Order VI[1] apply to the written Statement.

Who may file the written Statement?

The defendant or his duly authorised representative or agent files the written statement. In case the defendant is a minor, on behalf of him, the natural guardian or parents of the minor may file the written statement with the prior permission.

If the defendant is an unsound party to the suit, a close friend or any relative of the party can file the written statement representing him. If there are several defendants, they can file a joint written statement. In such a case, the written statement must be signed by all of them. In terms of verification, it can be done by any defendant.

Order VIII Rule 1

Order VIII Rule 1 of Civil Procedure Code (Code) provides that “the defendant shall within 30 days from the date of service of summons file a written statement. Proviso to Order VIII Rule 1 [inserted vide Amendment Act of 2000] states that if the defendant fails to file a written statement within 30 days from the date of service of summons.

Therefore, the outer limit of filing the written statement according to Order VIII Rule 1 is 90 days from the date of services of summons. Order VIII Rule 1 of the Code of Civil Procedure deals with the written Statement, Set-off, and Counter-claim.”[2] It states that –

Rule 1: Written Statement

1. The defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence.

Rule 10: Procedure when party fails to present written statement called for by Court:[3]

“Where any party from whom a written statement is required under Rule 1[4] or Rule 9[5] fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgement against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”[6] The same provision has been upheld by the Hon’ble Court in the case of Salem Advocate Bar Association v. Union of India.[7]

The time limit for filing written statement

The Supreme Court in the case of Kailash v. Nankh [8] held that “the outer time limit of 90 days for filing the written statement is not mandatory. The court held that though the provision is couched in a negative language, it is directory and permissive not mandatory or imperative. It provides that process of justice may be hurried but the fairness which is the basic element of justice cannot be permitted to be buried.”

Even in Salem Advocate Bar Association v. Union of India,[9] the Supreme Court has held that the idea of harmonious construction must be utilised while construing the provisions of Order VIII Rule 1 and Rule 10.

The impact would be that, under Rule 10 Order VIII, the court will have the option to enable the defendant to file a written statement even after the 90-day term specified in Order VIII Rule 1. Order VIII Rule 10 makes no mention of the fact that after 90 days, no additional time can be allowed. The court has broad authority to “make whatever order in regard to the suit as it deems fit.”

The aforementioned Supreme Court decision makes it very obvious that the maximum time frame of 90 days specified in Order 8 Rule 1 for filing the written declaration is just advisory and not mandatory. The court has the authority to extend the aforementioned maximum time of 90 days for the purpose for filing the defendant’s written statement.

However, as the Supreme Court has stated, such expansions should only be granted in extremely difficult instances. While extending time, keep in mind that the legislature has set a maximum time restriction 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.”

Amendments with respect to commercial disputes

“The Commercial Courts, Commercial Division, and Commercial Appellate Division of High Courts Act, 2015 was enacted to make” unique arrangements concerning commercial debates. This act adds a subsequent stipulation to Order VIII Rule 1.

As indicated by it in a suit of commercial debate of explicit worth if the defendant neglects to record a written statement within 30 days from the date of administration of request he will be permitted to document the written statement inside the external furthest reaches of 120 days from the date of administration of request.

Assuming and still, after all, that the defendant neglects to document the written statement then the defendant will relinquish the option to document the written statement and the court will not permit the written statement to be taken on record.

The Supreme Court in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd.,[10] held that stipulation added by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 is compulsory and no written statement can be taken on record in commercial suits, in case it isn’t documented inside 120 days from the date of service of summons.

It’s also important that you understand how to respond to a summons.

Condonation of delay

Condonation of delay implies the expansion of endorsed time in specific extraordinary cases subject to the sufficient cause. The term condonation implies an inferred exculpation of an offense by regarding the offender as though it had not been submitted.[11]

Here the alluded offense is the offense of overlooking the law of time span that has been endorsed by the Limitation Act, 1963. The legitimate direction for the benefit of the defendants’ party implores and unassumingly demands the Hon’ble court to exculpate and present sufficient cause for their delay.

In the case of Balwant Singh v. Jagdish Singh,[12] the court held that a party looking for condonation of delay should show that they were acting with a bonafide goal and had gone to all potential lengths an option for them and control and didn’t move toward the court with any pointless delay.

In Ashok v. Rajendra Bhausaheb Mulak,[13] case, the court set out the rule that expresses that a bonafide botch with respect to the counsel in seeking after a cure is a decent ground for condonation of delay in moving toward the right gathering in the right sort of procedures.

In Ator Ali and Ora. v. Abdul Majid,[14] the counsel instead of documenting a revision application against the suit, recorded a writ appeal under Art.226 of the Constitution. On the excusal of the request, the counsel understood his mistake and without constantly waiting through much time filing the revision application, after the lapse of the limit time frame, alongside the Application for condonation of delay.

The court seeing that the slip-up submitted was real in nature supported the delay as the party was not careless and it is inappropriate to take a tough perspective on the delay.

Section 5 of the Indian Limitation Act[15]

Section 5 (6)[16] of the act deals with the extension of the prescribed period in a certain exceptional case.

It depicts that if the appellant or the applicant satisfies the court that he had a sufficient cause for not preferring the appeal or making the application within such period, then such application or appeal shall be admitted even after the prescribed time.

Explanation – the fact that the appellant or the applicant was misled by any order, practice or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

This can be done only in exceptional situations and the burden to explain the reasons for delay in a satisfactory manner lies on the defendant who seeks extension of time for filing the written statement. It is also laid down in the section that complete discretion is upon the court whether to grant condonation of delay and it lays the burden to prove the sufficient cause upon the party who is claiming such condonation.

In the case of Atcom Technologies Ltd. v. Y.A. Chunawala and Co.[17], the Supreme Court has reiterated the legal principle that “the maximum time period of 90 days for the purposes of filing of the written statement can be extended in exceptional cases. It was held that in such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days.”

Though Section 5[18] contemplates the clarification of delay to the satisfaction of the court and makes no difference between the state and the citizens, due to the implementation of a strict standard of proof in the case of Government, which is subject to the influence of its officials, who often will not have any personal interest in its transactions, may lead to grave miscarriage of justice and thus certain amount of latitude is permissible in such cases.[19]

The doctrine of “Sufficient Cause”

The doctrine of sufficient cause which manages the expansion of time is equivalent to the idea of the Condonation of Delay. Section 5 of the limitation act, 1963[20] arrangements with the optional force of the court to concede an allure or an application, after the termination of the limited time frame with the limitation that it very well may be practiced by the court provided that there exists a “sufficient cause” for the delay in recording such an allure or application.

There is no fundamental definition given to the expression “sufficient cause” neither in the code nor in the Limitation Act. This gives it a lot more extensive extent of translation. The ambit of force that can be practiced by the court w.r.t. exercise of prudence can’t be limited. This is because the application relies upon the premise of facts each case.[21]

To look for condonation of delay, a party should show the “sufficient Cause” of delay and fulfil the court that there has been a sufficient explanation that hindered him from recording the written statement or application offer inside the endorsed time period.

At the point when the defendant neglects to record the written statement, a sufficient cause for example sufficient avocation must be given else the choice will be passed against him. In any case, there can be a few special cases for this common guideline and an application or allure can be conceded by the court even after the time of limitation by approving the delay.

In the case of Collector Land Acquisition v. Mst. Katiji & Ors,[22] the Supreme Court held that “The term sufficient cause in the provision is reasonably flexible, allowing courts to apply the law in a meaningful manner. It allows the court to serve justice, which was why they were formed.”

The inference can be drawn as that the sufficient cause should be such uncommon circumstance which is outside one’s ability to control. There is nobody and-appropriate meaning of “sufficient Cause” as the courts has total freedom to choose whether the cause is sufficiently sensible or not.

A court realizes that refusal to overlook delay would result for closing a suitor from advancing his cause. There are no assumptions that delay in moving toward the court is consistently conscious. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act ought to get a liberal development to progress significant equity. [23]

“Mistake by the counsel, mistake of law, illness of the party, death of the party’s family members,” worldwide pandemic or passing of the counsel and so on, could be a portion of the sufficient causes permissible by the court. Ignorance of law, negligence and carelessness can never be considered as a sufficient cause.

Factors considered as sufficient cause

“The existence of the sufficient cause to the satisfaction of court is the condition set for the court to exercise its discretion in the matter of Condoning Delay. Sufficient cause must be a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which a party, could have avoided but the exercise of due care and attention cannot be a sufficient cause.”[24]

“Granting of extension under Section 5 on sufficient cause being shown is a matter of discretion which is judicial and not arbitrary.”[25]  In the matter of Condonation of delay conduct of party is a relevant factor.[26]

If party is not negligent but delay has occurred on account of fault of counsel’s clerk, delay ought to be condoned.[27] After expiry of limitation period each day’s delay has to be explained and not delay for before expiry of limitation period.

“The test whether or not a cause is sufficient is to see whether it is a bona fide cause, inasmuch as nothing can be considered to be bonafide which is not done with due care and attention.” Where neither negligence nor inaction nor want of bona fide is imputable to a party for the delay in filing an appeal it would constitute sufficient cause. Since sufficiency as to cause of delay for condonation is a question of fact and not substantial question is law.

“The phrase sufficient cause pertains to the establishment of appropriate facts before the court, to which the court can apply its mined. Condonation depends on the facts of each case buy the facts must be placed by the applicant before the court. Section 5 applies to all applications except an application under Order XXI of the code. Order XXI deals with the law relating to the execution of decrees and orders.”

Inability without fault –

When the court creates a limitation and the party is unable to conform to it, for no fault of his own; the law will ordinarily excuse him.

Merits of case –

Delays will ordinarily he excused id there are any merits in the case.

Poverty, Minority or Paupers –

Neither the poverty of the appellant nor the fact that she is a paradanashian lady would constitute a sufficient cause.

Ignorance of Law –

Ignorance of law can be considered as a sufficient cause in exceptional cases ex. Paradanashian lady knowing nothing about law and procedure. But pure and simple ignorance of law cannot be a justification for condonation of delay of about 17 years.

Fraud –

Fraud of the legal advisor’s clerk by not presenting the application and running away with the money there being no negligence on the part of the lawyer, is sufficient cause within the meaning of the section. Counsel’s clerk mistake is a sufficient cause.

Illness and imprisonment –

Illness as a sufficient cause for condoning of delay. A mere plea of the appellant’s illness is not a sufficient cause for not filing an appeal in time but illness will be a sufficient ground id it’s nature is such as to afford a reasonable excuse.

He has to submit copies of the medical fee and certificates along with the condonation of delay. Party having low blood pressure and advised to bed rest is a sufficient cause for a court to be liberal.

• Subsequent changes in the law.
• Illness of the party.
• When the Party is a government servant.
• The delay is caused due to the pendency.
• Engagement is not a sufficient cause.
• Inter-departmental correspondence or consultation or similar administrative reason does not constitute sufficient ground.
• Wrong advice of the counsel regarding limitation period for execution of decree given in good faith is a sufficient cause. But mistaken advice by a senior counsel and basis there of not disclosed is not a sufficient cause.
• Misconception regarding legal requirement of substitution of heirs after party’s death caused on account of bona fide but wrong legal advice is sufficient cause.

Delay cannot be condoned in absence of any substantial cause with sufficient legal value. The expression “sufficient cause” should therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay.

Covid 19 as a sufficient cause for condonation of delay

The law protects citizens’ rights and requires some degree of attention and care from those seeking protection of their rights. To avoid an unlimited window of opportunity to approach the courts for redress, the law of limitation establishes time limits for legal actions.

The law of limitation takes precedence over substantive law to the point that a party’s rights may be forfeited if an action is not launched within a specified time frame. The Covid – 19 epidemic has created unusual circumstances. With the introduction of covid-19 and the subsequent lockdown, it was inevitable that plaintiffs would be unable to approach the courts conscientiously.

Any defendant in a civil action must file a defence, which is done by submitting a written statement. It must be filed within 30 days of the defendant receiving a summons/notice from the court, notwithstanding the grace period provided by law.

If the defendant fails to file within the statutory time frame, his or her right to defend is forfeited. “Because the substantial right to defence may be struck off in many cases as a result of the difficulties litigants faced during in the Covid-19 pandemic, it became critical to understand how the courts perceive the Supreme Court’s order to extend all limitations in cases where written statements are filed beyond the aforementioned outer limit of 120 days.”

References:

[1] Order VI, CPC, 1908.

[2] Order VIII Rule 1, CPC, 1908.

[3] Order VIII Rule 10, CPC, 1908.

[4] Order VIII Rule 1, CPC, 1908.

[5] Order VIII Rule 9, CPC, 1908.

[6] Salem Advocate Bar Association v. Union of India, AIR 2005 SC.

[7] AIR 2005 SC.

[8] kailash v.Nankh, AIR 2005 SC 2441; (2005) 4 SCC 480.

[9] Salem Advocate Bar Association v. Union of India, AIR 2005 SC; 2005 (6) SCC, 344.

[10] SCG Contracts (India) (P) Ltd. V. K.S. Chamankar Infrastructure Pvt. Ltd. (C.A 1638/2019).

[11] AIR 2005 SC.

[12] Balwant Singh v. Jagdish Singh, CIVIL APPEAL No. 1166 OF 2006.

[13] Ashok v. Rajendra Bhausaheb Mulak, CIVIL APPEAL NO. 7591 OF 2012

[14] Ator Ali and Ora. v. Abdul Majid, 1982.

[15] Section 5, Limitation Act, 1963.

[16] Section 5(16), Limitation Act, 1963.

[17] Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639.

[18] Section 5, Limitation Act, 1963.

[19] IOCL v. Subrata Borah Chowlek, (2010) 12 Scale 209: 2010 (262) ELT 3.

[20] Section 5, Limitation Act, 1963.

[21] G.Ramagowda v. Special Land Acquisition Officer, AIR 1988 SC 897

[22] Collector Land Acquisition v. Mst. Katiji & Ors ,1987 AIR 1353, 1987 SCR (2) 387.

[23] Shakuntala Devi Jain v. Kuntal Kumari, AIR 1869 SC 575.

[24] Ramlal, etc. v. Rewa Coalfields Ltd., (1961) 2 S.C.J. 556 : AIR 1962 S.C. 361; Brij Indar Singh v. Kanshi Ram, 44 I.A. 218 : AIR 1917 P.C. 156.

[25] R.S. Chandramull Indrakumar v. Goenka, 67 Cal. W.N. 482.

[26] A.F.Corporation v. Sr. B. Singh, AIR 1984 Cal, 516.

[27] S.Kumari v. K.K. Sabhawal, 1985 Rajdhani L.R. 384.

This article has been authored by Sade Tejaswi a student at National Law University, Visakhapatnam.