by Ashmit
Introduction
“Lex dilationes abhorret”, which translates to “the law abhors delay” is a legal maxim for ‘Justice delayed is justice denied’, it emphasises the negative consequences of delaying the administration of justice. If an aggrieved person has the option to seek legal recourse or get fair compensation, but is unable to get it in a timely manner, it is essentially equivalent to having no methods of redressal. This maxim encapsulates the common expectations of those who seek legal recourse from the courts. There have been several cases in which the persons involved have either passed away or lost interest in pursuing the lengthy and arduous legal processes owing to delays in the hearing of their lawsuits.[i] [DS1] It is required of the courts to be prompt, and reasonable and deliver comprehensive justice, which if not done, worsens the condition of the aggrieved and makes the justice insignificant. Failure to file written statements in front of the court for the judgements, to be opined in favour of the aggrieved is one of the issues which is subject to this principle. In a civil suit, the timeline for a defendant to file a written statement is very crucial. This research is an analysis on the presentation of a written statement before the court in a suit, its judicial understanding and principles, further its effect on the parties and the public policy principles entailed.
What is a Written Statement?
A written statement is the ‘defence’ of the defendants. It includes all the statements or media through which the defendant denies the cause of action subsequently the pleadings in a suit, of the plaintiff. The written submission is time-barred, on the expense of such, generally an ex-parte decree is passed unless the defendants are provided with more time, as deemed fit by the court.
Statutory Provisions entailing written statement
The Code of Civil Procedure is a pre-independence enactment. originally enacted in 1859 as Act No. 8 of 1859, has undergone several amendments over the years. In 1908, the Code was re-enacted, coming into force on January 1, 1909. The main goal of the Code of Civil Procedure (CPC) is to assure the administration of justice. Procedural law, which is always aimed at promoting justice, consists of two components: Sections (1-158) and five schedules (the second to fifth were later amended). The First Schedule consists of 51 orders, each consisting of rules. Sections provide the rights of individuals involved in legal disputes and determine the authority of a court to hear and decide a case. These principles establish the core procedures and jurisdiction of the code. The authority to create and modify rules is given to State Governments and High Courts.
As provided by Order VIII Rule 1 of the Code of Civil Procedure, 1908[ii] [ hereinafter “CPC”], [DS2] the defendant has 30 days from the date of service of summons to submit their written statement. If missed, the court can grant an extension, but this is conditional on the recorded reasons and must be submitted within 90 days of the summons service.
An additional proviso allows for further flexibility, If the court permits an extension and the defendant shows grounds for it, they are permitted to submit the written statement beyond the first 30-day period, but no later than 120 days, while also paying the necessary expenses. After 120 days from the day the summons is issued, the defendant must give up the right to submit a written statement, and the court will not take it into account.[iii]
Order VIII Rule 10 of CPC stipulates that whoever is required to submit a written statement under Rule 1 or Rule 9 of Order VIII of the CPC, If the person does not adhere to the designated time limit set by the court, the court can make a decision [DS3] against them or give a suitable directive pertaining to the litigation. After the verdict is announced, a formal order will be prepared. It is crucial to emphasise that the court does not have the authority to prolong the deadline for submitting a written statement, as specified in Rule 1 of this Order.[iv]
The rule confers upon the court the power to either render a judgement against the defendant or give a suitable directive about the action, provided that no extension for submission may be granted. Judicial discretion plays an important role in rendering justice. Several Judgements have looked upon the issue and cleared out the ambiguity over failure to a written submission. This issue contradicts time and justice, the time essential to furnish ‘justice to all’, can affect the ‘justice to all’ which is to be served. While the Order 8 of CPC in Rule 10 clearly states the approach for the courts to handle this issue, there is still some ambiguity on its mandating or discretionary nature.
Judicial Understanding and Principles
The Supreme Court of India has attempted to clarify this position, in the case of Asma Lateef & Anr. v. Shabbir Ahmad & Ors.[v][DS4] the court analysed the Order VIII Rule 10 of the CPC by holding it to be permissive in nature. It enables the trial court in any given case to proceed with any of the two alternatives. The court dwelt on the option of not pronouncing and to make such an order in respect to the claim as a court think fit. It was noted that the verb ‘shall’ in Rule 10 [substituted for the verb ‘may’ by the Amendment Act of 1976], does not furnish the first alternative with the status of a mandatory provision to the extent that in every case of a failure of the written statement, a judgment must be pronounced against him. It highlighted that the second alternative to which ‘shall’ applies equally would have no practical role if the aim was to deliver a judgement in every given case.
In the Landmark case of Balraj Taneja v. Sunil Madan[vi][DS5] the Supreme Court observed that the court cannot provide for both the conditions of, admission of facts made by the defendant or to pronounce a judgement due to failure of written submissions by the defendant, blindly. The deemed admission does not mean that all facts must be correct; if this is the case, the court can rule against the defendant for failing to provide written submissions; if the facts are in dispute, the court may pursue the second option under Order VIII Rule 10 of the CPC.
The Supreme Court of India in Sangram Singh v Election Tribunal, Kotah & Anr.[vii][DS6] briefly stated the issue on the point of the scope of the court’s discretion in the matter
“(32) We have already seen that when a summons is issued to the defendant it must state whether the hearing is for the settlement of issues only or for the final disposal of the suit (O.5, R.5). In either event, O.8, R.1 comes into play and if the defendant does not present a written statement of his defence, the Court can insist that he shall; and if, on being required to do so, he fails to comply – “the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.” (O.8, R.10). This invests the Court with the widest possible discretion and enables it to see that justice is done to `both’ sides; and also, to witnesses if they are present: a matter on which we shall dwell later.”[viii]
The J&K [DS7] High Court in Chuni Lal Chowdhry v Bank of Baroda[ix] [DS8] laid down that, where needed the court has the ability to either pronounce the verdict against the defendant or make an order in connection to the action as it considers proper depending upon whether the suit was for the final disposal or for the settlement of the issues only. The court has considerable power in the latter scenario to award further time, but the discretion cannot be utilised arbitrarily.
If in a case the defendant was purposefully extending the proceedings and therefore failed to provide a good and acceptable reason for not providing the Written statement, the court can lose his right of defence of Smt. Sushila Jain v Rajasthan Financial Corporation Jaipur[x].[DS9]
The respective courts in the above-mentioned cases have rightly opined upon the relevancy of discretion of the courts and non-arbitrability in the discretion.
Suggestions and the way forward
It is rightly so that courts cannot pronounce a judgement by a mere failure to file a written statement, when they have an alternative to provide for a fair chance to the other party, with the factor of disputed questions of facts. The court should not be absent on the reasonability when deciding between the two alternatives under Order VIII Rule 10 of CPC. The above-mentioned cases have rightly created a school of thought on the issue, by clarification of the alternatives and under what circumstances the courts are supposed to adhere to them. The way forward is to look upon the precedent set by the higher courts for different aspects of this particular issue. The courts should allow for a fair chance in case of a bonafide mistake, otherwise rightly so should proceed to pass a decree.
Conclusion
The failure to file written statements not sufficient for the judgements, is an issue with a clear statement within the legislation but has an ambiguous prospect to its nature, mandatory or discretionary. It should be noted that the provision provides two alternatives to the court with the word ‘shall.’ This places a wide scope of the Court’s discretion on the issue, which should not be infused with arbitrability.
The court’s discretion is to be fundamental upon reasonability and fairness, if the court is satisfied that there is no question of fact, it is feasible and important to pronounce the judgement timely, on the other hand, if there are disputed questions of fact, the second alternative of making an order as deemed fit stands coinciding with reasonability and fairness. Key judicial decisions such as Asma Lateef & Anr. v. Shabbir Ahmad & Ors. and Balraj Taneja v. Sunil Madan[DS10] have cleared the nature of the issue.
It is crucial for a society with such a large population as India, wherein around 10995193 civil cases are still pending in district and taluka courts[xi], to be able to provide for justice to each timely. The submission of written statements is a very fundamental requirement under the procedural law, failure of which can affect the time under which justice is served thus affecting not just an individual but all those who approach the courts to find a remedy. A mere failure with prudent reasons should not be enough to pronounce a judgement but in any given case of court satisfaction with relevant factors as mentioned in the research, the judgement should be pronounced to serve justice and save time.
[i] Sameer Yasir, Elke Scholiers, “India’s Court System Is Hopelessly Backed Up” <https://www.nytimes.com/2024/01/13/world/asia/india-judicial-backlog.html> accessed on 15 July 2024.
[ii] The Code of Civil Procedure, 1908, Order VIII Rule 1.
[iii] Ibid.
[iv] The Code of Civil Procedure, 1908, Order VIII Rule 10.
[v] Asma Lateef & Anr. v Shabbir Ahmad & Ors. 2024 LiveLaw (SC) 39.
[vi] Balraj Taneja v. Sunil Madan 1999, AIR SCW 3345.
[vii] Sangram Singh v Election Tribunal, Kotah & Anr 1955 AIR 425.
[viii] Ibid.
[ix] Chuni lal Chowdhry v Bank of Baroda 1982 AIR 93 JAMMU AND KASHMIR.
[x] Smt. Sushila Jain v Rajasthan Financial Corporation Jaipur, 1979 AIR 215 RAJ.
[xi] National Judicial Data Grid <https://njdg.ecourts.gov.in/njdgnew/index.php> accessed on 16July 2024.