Order VIII Rule 1 CPC
State of West Bengal
After the addition of the first proviso to Order VIII Rule 1 of the Code by Amending Act of 2002, the Rule Committee of the Calcutta High Court inserted two more provisos, which needs to be noticed.
The amended provisions are quoted as under:
“1. Written statement.-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
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.
Provided further that the Court can in exceptional cases extend the time beyond ninety days from the date of service of summons if the defendant proves to the satisfaction of the Court that due to unforeseen circumstances he was prevented from filing the written statement within the said time.
Provided further that the Court should in no case extend such time beyond one hundred twenty days from the service of summons unless it is proved to the satisfaction of the Court that the defendant was prevented from filing the written statement earlier due to the circumstances beyond his control.
Inserted by Notification No. 4681-G, dated 6.12.2006, published in the Kolkata Gazette, Extraordinary, dated 7.12.2006.”
Notes:
It is manifest from the aforesaid provision that the third proviso inserted thereto empowers the court to extend time beyond maximum limit subject to the satisfaction of the court that the defendant was prevented from filing the written statement because of the circumstances beyond his/her control.
Section 122 of the Code empowers the High Court to make rules regulating their own procedure and the procedure on Civil Courts subject to their superintendence and may by such Rules annul, alter or add to all or any of the Rules in the first schedule. Section 123 thereof makes imperative to constitute Rule Committee consisting of the persons named therein and the report of the Rule Committee should be submitted to the High Court for consideration. Such Rules approved by the High Court requires further approval of the State Government and shall take effect only after its publication in the Official Gazette either from the date of the publication or from other date, as may be specified under Section 127 of the Code.
By virtue of the aforementioned sections, such rules would be deemed to have been contained in the first schedule and made applicable to all the courts over which the power of superintendence is exercised by that High Court. Another rule making power can be traced from Section 129 of the Code to regulate its own procedure in exercise of original civil jurisdiction. The mere fact that Section 129 expressly confers power to frame rules for regulating procedure on the originsl civil side cannot lead to the conclusion that such rules can be framed under Section 122 of the Code (Shevaram v. Indian Oil Corporation, AIR 1969 Bombay 117).
In view of the aforesaid amended provisions applicable to the State of West Bengal, the court can extend time beyond the outer cap provided it is proved by the defendant that the circumstances was beyond his/her control.
In Sau. Vanita Pravin Gaikwad vs Shri Pravin Pundlik Gaikwad (AIR 2010 BOMBAY 62): Writ Petition under Article 227 of the Constitution of India, the following question arises for consideration “whether a matrimonial petition under the Hindu Marriage Act, 1955 (hereinafter referred to as “the said Act”) filed in the court having jurisdiction under section 19 of the said Act will be governed by the constraints of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”) as amended by Code of Civil Procedure (Amendment) Act, 2002?” Held that unless application made under Section 24 of the Hindu Marriage Act was decided, the Court could not have proceeded to pass an ex-parte decree for non filing of Written Statement.
Additional written Statement: Apex Court in the case of Girnar Traders vs. State of Maharashtra & Ors. [(2007) 7 SCC 555] and the decision in the case of State of Maharashtra and Anr. vs. Sant Joginder Singh Kishan Singh & Ors. [1995 Supp. (2) SCC 475]. He submitted that as the amended provision of Rule 1 of Order VIII was applicable, the additional written statement ought to have been filed within a period of 90 days from the date on which the amended copy of the Petition was served to the petitioner.
Matrimonial Matter: On this aspect there is one more relevant decision in the case of Vanmala w/o. Maroti Hatkar vs. Maroti Sambhaji Hatkar (1999 (2) Mh.L.J. 297). This was a case where the husband committed default in complying with the order of interim alimony and payment of expenses passed under Section 24 of the said Act. This Court held that in such a contingency, if the offending party is the petitioner, the proceedings of the Petition can be ordered to be stayed. If the offending party is respondent, then the defence of the respondent can be struck out. Thus if compliance is not made by a Petitioner with an order passed under section 24 of the said Act, the proceedings of the Petition can be stayed. Thus, the law laid down by this Court is that unless an application made by the respondent for grant of litigation expenses is decided, the respondent is not even expected to file written statement. If such application is decided in favour of the respondent, it is not expected of the respondent to file the written statement unless order granting litigation expenses is complied with. It is not necessary to go into the wider question whether the provisions of Order VIII of the said Code as amended in the year 2002 stand automatically incorporated in Rule 12 of the said Rules.
In a case where respondent has applied under Section 24 of the said Act for grant of litigation expenses, the said respondent cannot be compelled to file a written statement unless an order is passed on the said application. If an order is passed in favour of the respondent directing the petitioner to pay litigation expenses, the respondent is expected to file written statement only after the amount is paid to the respondent.