No time
limit for filing amended written statement?
In a civil
suit filing of a written statement by the defendant stipulates a time limit of
30 days and that may be extended to another 90 (Ninety days) , totaling to 120
days, provided sufficient cause is shown for delay in filing written statement
and an application to that effect for seeking condonation of delay is preferred
and subject to such terms as Court may deems fit and appropriate, the delay can
be condoned. However, any delay beyond 120 days in filing written statement
cannot be condoned. In commercial suits, non filing of written statement within
120 days may invite passing of judgment and decree straightway. In general
suits, also, delay in filing written statement beyond 120 days is not liable to
be condoned in the backdrop of Delhi High Court( Original Side Rules), which
shall be dealt with in a while. In such an eventuality, the defence of the
defendant could be struck off. As stated in the case of Commercial Suit under
the Commercial Courts act 2015, if written statement is not filed within 120
days, then, plaintiff may be entitled to judgment and decree forthwith, since,
the rigour of operation of law is more pronounce in the case of Commercial
cases.
There may be
cases in a suit, where plaint is amended after application for seeking
amendment under Order 6 Rule 17 of Code of Civil Procedure is filed and
allowed. There may also be situation that the amendments in the plaint are
carried out much after filing of written statement. Naturally, in this context,
amended written statement shall have to be filed. The question now arises,
whether, written statement to amended plaint shall also have prescription of
120 days as a statutory limit or there are no such limits prescribed in the
case of filing amended written statement to such amended plaint? The answer to the aforesaid situation shall
be dealt with hereunder.
Recently, the
Delhi High Court in a matter captioned as Ms. Raman Sharma vs Ms. Prem Lata Prabhakar & Ors on 30
January, 2024 CS(OS) 20/2018 has dealt with the
issue and may be referred to for answer.
In Raman Sharma (Supra), the gravamen of the case is that defendant Nos. 1 & 2 had filed their amended Written Statements
after 320 days, along with an Application seeking condonation of delay of 320
days in filing the amended Written Statements. The counsel for the plaintiff
had given a "No Objection" to the Application and it was accordingly
allowed and as such the delay of 320 days in filing the amended Written
Statements was condoned and the Written Statement was taken on record.
CONTENTIONS
OF PLAINTIFF AGAINST written statement
(i)
That as per the Chapter VII
Rule 4 of Delhi High Court (Original Side) Rules, 2018 the Written Statement
has to be filed within a period of 30 days which may be extended by the Court
for another 90 days, but not thereafter. Thus, any filing beyond 120 days in a
suit, is not condonable.
(ii)
That Furthermore, the
plaintiff cannot be estopped from raising the ground of limitation as there is
no estoppel against law. Thus, even though the plaintiff had given a no
objection to the condonation of the belated filing of the Written
Statement, but no concession can be made on the law, by the Court.
(iii)
That the Order VIII Rule 1
of CPC is mandatory and there
cannot be any Written Statements taken on record beyond the period of 120 days.
Reliance was put on (i) Ms Charu Agrawal Vs Mr Alok Kalia & Ors CS
(OS)214/ 2022 decided by
Co-ordinate Bench of the Delhi High Court and that of (ii) Ram
Sarup Lugani Vs Nirmal Lugani, 2020 SCC OnLine Del
1353; (iii) Union of India Vs Popular Constructions (2001) 8 SCC 470.
(iv)
That it
was reiterated that there is no estoppel against law and therefore, the
concession given by the plaintiff was inconsequential. In this context reliance
was placed on (i) State
of Rajasthan & Anr Ve Surendra Mohnot & Ors (2014) 14
SCC 77 and (ii) Khetro Mohan Chatterjee & Ors Vs Mohan Chandra Das 1913 SCC OnLine Cal 34.
(v)
That Section 34(3) of
Arbitration & Conciliation Act 1996 read with Chapter VII Rule 4 of the Delhi High
Court (Original Side) Rules, 2018 are akin to Order VIII of CPC 1908. It provides
that the Petition under Section 34 of the Arbitration and Conciliation
Act, 1996 can be filed within the given time and not thereafter. The phrase and
"not thereafter", in the context of Section 34 of the
Arbitration and Conciliation Act, 1996 has been interpreted to mean that under
no circumstances can the period be extended beyond the prescribed period.
(vi)
That
limitation, being a legal issue, it can be raised even at the stage of Appeal
and the Second Appeal, since it goes to the root of the matter and is
a requirement of law. Reliance was placed on the decisions in State
of Gujarat Vs Kothari & Associates (2016) 14 SCC 761.
(vii)
That against a patently
illegal order, the Court can exercise its inherent powers under Section
151 of CPC. Moreover, even under section 153 of CPC, the Court is empowered to
amend any defect or error in any proceedings in the Suit.
CONTENTIONS OF DEFENDANTS
(i)
That the application for
recalling of order whereby amended written statement was taken on record reeks
of mala fide and abuse of the process of law, since, the plaintiff expressly
consented to take the Written Statements on record and had even attempted to
file its replication to the amended Written Statements. It is only when an
objection was taken to the filing of the replication to the amended Written
Statements beyond the stipulated period under the Delhi High Court (Original
Side) Rules, 2018, that the plaintiff turned around and moved the present
application.
(ii)
That the amended written
statement was filed belatedly, in view of mediation proceedings underway for
long period, but, when no amicable
resolution of disputes, could be arrived at that, hence, amended Written
Statement was directed to be filed within two weeks along with the application
for condonation of delay.
(iii)
That the defendants,
thereafter, had filed the amended Written Statement along with the application
for condonation of delay.
(iv)
That the application by the
plaintiff for seeking recall of order whereby amended written statement was
permitted to be taken on record was only an afterthought and is without any basis. The reliance has
been placed on the decision in Union of India Vs Susaka Pvt Ltd & Ors
2018(2) SCC 182, wherein it has been observed that if a plea is available
whether on facts or law, it has to be raised by the party at the appropriate stage
in accordance with law; if not raised and/or given up with consent, it would be
precluded from taking such plea on the principle of waiver.
(v)
That reliance
was placed on Bharat Kalra Vs Raj Kishan Chhabra 2022 SCC OnLine SC 613,
to buttress the point that that delay in filing of the Written Statement could
be compensated with costs, but to deny the benefit of filing the Written
Statement, is unreasonable. When the plaintiff had already given a no objection,
hence, there cannot be any deviation from that and raising objection to the
filing of the amended Written Statement is untenable.
(vi)
That in Salem
Bar Association Vs Union of India 2005 (6) SCC 344, wherein it was held
that the provisions including proviso to Order VIII Rule 1 of CPC
permit filing the Written Statement accepted expiry of 90 days from initial 30
days and the delay beyond 120 days, can be condoned by the Court.
The issue therefore
raised in this context is –
Whether a Written Statement to the amended
plaint can be accepted beyond the statutory period of 30 days plus 90 days as
contemplated under the Proviso to Order VIII Rule 1 read with Section
151 of the Code of Civil Procedure, 1908 and read with Delhi High Court
(Original Side) Rules, 2018.
AND
Whether a bar stipulated in the law of
limitation can be condoned?
Before further deliberation, it is imperative to state that the
law prescribes a certain thing to be done in a certain way, then it cannot be
done in any other way as has been encapsulated in the Latin maxim Expressio unius est exclusion alterius.
If a person makes a statement to the contrary, to renounce the
benefit of a right introduced in his own favour, the legal principle proffered
in quilibet potest renunciare juri prose
introducto (One can waive a right available to him in his behalf) . No
doubt, this is essentially restricted to the provisions intended for the
benefit of an individual and may not apply to Law enacted, based on public
policy such as law of limitation, in the present case.
The Supreme Court in the case
of France B Martins Vs Mafalda Maria Teresa Rodrigues (1999) 6 SCC
627 has categorically observed that the period of limitation is founded
on public policy and aimed at secure the quietus of the issues raised beyond
certain period and need of a quicken diligence and to prevent oppression till
perpetuity.
In
Union
of India Vs British India Corporation Ltd (2003) 9 SCC 505 it is held that the question of limitation is a
mandate to the forum and irrespective of the issue being raised, the forum must
consider and apply it. Similar is the ratio in State
of Gujarat Vs M/s Kothari & Associates AIR ONLINE 2015 SC 206 and that the objection to the limitation can also be raised even at
the stage of second appeal, if the bar of limitation is evident.
It is thus found that the time frames defined for the purpose of
limitation are absolute and do not admit to any exception. The Courts shall be
bound by it and no exception can be carved out, irrespective of genuine reasons
for delay. Even if a party may give a concession to the other by waiving off
the limitation period, a party making such statement cannot be held bound by that,
since, the principle of estoppel shall not operate against the law.
Coming back to the issue of condonation of delay in filing written
statement, it is to be borne in mind that in order to curb inordinate delays in
litigations, comprehensive amendments were introduced in The Code of Civil Procedure, 2002 , effective w.e.f.
01.07.2002. As the bottleneck was identified for long period taken for
completion of pleadings, hence, with a view to address the problem, Order VIII
Rule 1 of CPC along with its Proviso,
was introduced, thereby maximum time of 120 days was defined for filing of the
written statement.
This mandate was further reinforced in the Delhi High Court (Original Side)
Rules, 2018. Chapter VII Rule 4 of the Rules, 2018 and that provides
for the extension that can be granted by courts if the Written Statement is not
filed within 30 days of being served. The provision reads as under:
"4. Extension of
time for filing written statement.--If the Court is satisfied that the
defendant was prevented by sufficient cause for exceptional and unavoidable
reasons in filing the written statement within 30 days, it may extend the time
for filing the same by a further period not exceeding 90 days, but not
thereafter. For such extension of time, the party in delay shall be burdened
with costs as deemed appropriate. The written statement shall not be taken on
record unless such costs have been paid/ deposited. In case the defendant fails
to file the affidavit of admission/ denial of documents filed by the plaintiff,
the documents filed by the plaintiff shall be deemed to be admitted. In case,
no written statement is filed within the extended time also, the Registrar may
pass orders for closing the right to file the written statement."
It is worthwhile to note that the Delhi High Court (Original Side)
Rules, 2018, were enacted in exercise of the powers under Section 129 of
CPC empowering the high court to make rules "not inconsistent with the
Letters Patent to regulate its own procedure in the exercise of its original
jurisdiction as it shall think fit. It was held by the Supreme Court in Iridium
India telecom Ltd Vs Motorala Inc (2005) 2 SCC 145 while dealing
comprehensively of the
Charter establishing High Courts and the scope of the non-obstante clause in
Section 129 and it was held that the non obstante clause in Section 129 is
intended to bypass the entire body of the Code so far as the rules made by the
Chartered High Court for regulating the procedure on its Original Side, are
concerned.
It was inter alia held
that the Rules framed by High Courts would prevail over the provisions of
Code of Civil Procedure, even if the said Rules are inconsistent with the Code.
It was observed as under:
"39. Taking into
account the extrinsic evidence, i.e. the historical circumstances in which the
precursor of Section 129 was introduced into the 1882 Code by a specific
amendment made in 1895, we are of the view that the non obstante clause used in
Section 129 is not merely declaratory, but indicative of Parliament's intention
to prevent the application of the CPC in respect of civil proceedings
on the Original Side of the High Courts."
As far as the word “but not
thereafter” it has been interpreted in several judgments, for instance in Gautam
Gambhir Vs Jai Ambay Traders
2020 SCC OnLine Del 2621 that the words "but not thereafter" mentioned in the
Rule 4, of Chapter VII of the Delhi High Court Rules, 2018 clearly indicate
that a total of 120 days granted for filing of Written Statement cannot be
extended and if the same is not complied with, then the Registrar may pass
orders closing the right to file the same.
In the case of Ram
Sarup Lugani (Supra), the Division Bench of Delhi High Court has upheld
the Delhi High Court (Original) Rules, 2018 to hold that the said Rules shall
prevail over the Code of Civil Procedure. The inherent powers
contemplated in Chapter I Rule 16 of the said Rules are not to be exercised
over to overcome or circumvent the limitation expressly provided under Chapter
VII of the Rules. The phrase "but not thereafter", though in the context
of filing of a Replication, was interpreted and it was observed that the words
not thereafter must clearly be accorded due weight and the timeline provided
could not be extended by the Courts or take the replication on record after the
time has been exhausted by the party.
The Delhi
High Court in Ms. Raman Sharma (Supra)
has held as under:
67. In the present case,
the facts involved are different as it is not a case of filing the Written
Statement in the first instance. The Suit was filed on 12.01.2018 to which the
Written Statements were filed by defendant Nos. 1 & 2 filed on 07.03.2018.
The Plaintiff sought amendment of the plaint which was allowed vide Order dated
18.12.2019 and the amended plaint was taken on record. The defendants were
directed to file their amended Written Statement to the amended Plaint within
30 days.
71. The pertinent question
which now remains to be answered is whether the stringent timeframes as
prescribed under Order VIII Rule 1 of CPC for filing of the Written Statement
within 30 days of service which may be extended to 120 days on showing
sufficient cause, is also applicable to the amended pleadings.
72. The Scheme of Code
of Civil Procedure, in regard to the amendments of the pleadings, as
encapsulated in Order VI Rule 17 of Code of Civil Procedure, provides that the
pleadings (which includes the plaint and the written statement) may be amended
at any stage, if considered just and necessary for determining the real
question in controversy between the parties. However, this provision is
circumscribed by twin conditions in the Proviso which are: that the amendment
shall not be allowed after the trial has commenced; and unless the Court comes
to the conclusion that such matter could not have been raised before the
commencement of trial, despite due diligence.
The scope
of filing an amended Written Statement to an amendment allowed in a plaint had
been explained by the Full Bench of Delhi High Court n the case of Kedar
Nath & Ors Vs Ram Prakash & Ors 1999 (48) DRJ (FB): -
"22. To sum up, we are of the opinion that:
(i) merely because an amendment has been allowed in the plaint,
the defendant does not get a right and certainly not an unbridled right to file
a new written statement;
(ii) any additional pleading cannot be at variance or inconsistent
with the original pleading;
(iii) a pleading inconsistent with or in departure from an
original pleading can be allowed only by way of amendment subject to the leave
being granted by the Court under Order 6 Rule 17 of CPC
(iv) Order 6 Rule 17 CPC applies to amendment in the plaint and
the Written Statement-both. It applies to amendment sought for by one party and
also to consequential amendments in the pleadings sought for by the opposite
party. Any amendment - whether original or consequential, shall be only by the
leave of the Court.
In Gurdial
Singh & Ors Vs Raj Kumar Aneja & Ors (2002) 2 SCC 445, it has
been further explained that when an application under Order VI Rule 17 of
CPC is allowed, such amendments are known as consequential amendments.
It is relevant to mention that the phrase "consequential
amendment" finds mention in the decision of the Supreme Court in a
matter reported as Bikram Singh & Ors Vs Ram Baboo & Ors AIR 1981 SC 2036. The
Court may see that the plea sought to be introduced is by way of an answer to
the plea previously permitted to be incorporated by way of amendment by the
opposite party or not? A new plea cannot be permitted to be added in the garb
of a consequential amendment.
The Delhi High Court in Ms. Raman Sharma (Supra) has observed that in this case the
issue is to file amended written statement to the amended plaint. The
amendments were allowed to the Plaint, but in response thereto, instead of
responding to the consequential amendments, the defendants took independent
pleas in their amended Written Statement. Consequentially, the Written
Statement filed to the amended Plaint was directed to be taken off the
record and thereafter, the Written Statement was again sought to be filed and
the same was filed after a delay of 320 days which has been condoned by the
high court vide a speaking order and the Written Statement to amended Plaint were
taken on record.
In para 77 of Ms
Raman Sharma (Supra) it is held as under:
“Here, in such cases, the timeframes as provided under Order
VII Rule 1 of CPC would not be applicable to the Written Statement filed by
defendant Nos. 1 & 2, as "consequential amendments" to an amended
Plaint do not fall within the scope and purview of Order VIII Rule 1 of
CPC and Order VI Rule 18 of CPC becomes applicable for determining the time
frame for such amended pleadings. The provision reads as under: -
"Order VI -- Pleadings
Generally .......
Rule 18: Failure to amend
after order.--
If a party who has obtained
an order for leave to amend does not amend accordingly within the time limited
for that purpose by the order, or if no time is thereby limited then within
fourteen days from the date of the order, he shall not be permitted to amend
after the expiration of such limited time as aforesaid or of such fourteen
days, as the case may be, unless the time is extended by the Court."
It may be noted from the
aforesaid that 14 days time frame is extendable by the Court and is a
discretion of Court. It is not difficult to comprehend the rationale either.
Either party can seek permission to amend the Plaint or the Written Statement
which is already on record and has been filed within the given timeframe. The
amendments are allowed to be made at any stage before the trial but can also be
considered at a later stage if they could not have been made earlier
despite exercise of due diligence. Since the pleading can be amended at any
stage, the time frame of 120 days as prescribed for the filing of original
Written Statement becomes inapplicable to consequential amendments made to the
Written Statement. This is more so as the defence of the defendant is already
on record and it is only to the amendments allowed to the plaint that an
additional response is required.
Thus, there
is no timeframe provided for filing of the written statement/pleadings which
are consequent to an amendment, and the Court may grant the time as it may deem
fit in terms of Order VI Rule 18 of CPC.
------
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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