BADAT & Co. v. EAST INDIA TRADING CO.

Order VII of the Code of Civil Procedure prescribes, among others, that the plaintiff shall
give in the plaint the facts constituting the cause of action and when it arose, and the facts
showing the court has jurisdiction. The object is to enable the defendant to ascertain from
the plaint the necessary facts so that be may admit or deny them. Order VIII provides for
the filing of a written- statement, the particulars to be contained therein and the manner of
doing so ; rules 3, 4 and 5 thereof are relevant to the present enquiry and they read :

Order VIII Rule 3. It shall not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant must deal specifically with
each allegation of fact of which he does not admit the truth, except damages. r. 4 Where a
defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer
the point of substance. Thus if it is alleged that he (1) (1927) 43 T.T.R. 541.
received a certain sum of money, it shall not be sufficient to deny that he received that
particular amount, but he must deny that he received that sum or any part thereof, or else
set out how much he received. And if an allegation is made with diverse circumstances, it
shall not be sufficient to deny it along with those circumstances.
Rule 5. Every allegation of fact in the plaint, if not denied specifically, or by necessary
implication, or stated to be not admitted in the pleading of the defendant, shall be taken to
be admitted except as against a person under disability. Provided that the Court may in its
discretion require any fact so admitted to be proved otherwise than by such admission.

These three rules form an integrated code dealing with the manner in which allegations of
fact in the plaint should be traversed and the legal consequences flowing from its non-
compliance. The written-statement must deal specifically with each allegation of fact in the
plaint and when a defendant denies any such fact, he must not do so evasively, but answer
the point of substance. If his denial of a fact is not specific but evasive, the said fact shall
be taken to be admitted. In such an event, the admission itself being proof, no other proof
is necessary.

The first paragraph of r. 5 is a re-production of O.XIX, r. 13, of the English rules made
under the Judicature Acts. But in mofussil Courts in India, where pleadings were not
precisely drawn, it was found in practice that if they were strictly construed in terms of the
said provisions, grave injustice would be done to parties with genuine claims. To do 'Justice
between those parties, for which Courts are intended, the rigor of r. 5 has been modified by
the introduction of the proviso thereto. Under that proviso the Court may, in its discretion,
require any fact so admitted to be proved otherwise than by such admission. In the matter
of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more
laxity in the pleadings in the interest of justice. But on the Original Side of the Bombay
High Court, we are told, the pleadings are drafted by trained lawyers bestowing serious
thought and with precision. In construing such pleadings the proviso can be invoked only
in exceptional circumstances to prevent obvious injustice to a party or to relieve him from
the results of an accidental slip or omission, but not to help a party who designedly made
vague denials and thereafter sought to rely upon them for non- suitng the plaintiff. The
discretion under the proviso must be exercised by a Court having regard to the Justice of a
cause with particular reference to the nature of the parties, the standard of drafting obtaining
in a locality, and the traditions and conventions of a Court wherein such pleadings are filed.
In this context the decision in Tildestey v. Harper(1) will be useful. There. in an action
against a lessee to set aside the lease granted under a power the statement of claim stated
that the donee of the power had received from the lessee a certain sum as a bribe, and stated
the circumstances; the statement of defence denied that sum had been given, and denied
each circumstance, but contained no general denial of a bribe having been given. The Court
held, under rules corresponding to the aforesaid rules of the Code of Civil Procedure, that
the giving of the bribe was not sufficiently denied and therefore it must be deemed to have
been admit- ted. Fry J. posed the question thus : What is the point of substance in the
allegations in the statement of claim ? and answered it as follows :

"The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley,
and that point of substance is nowhere met............ no fair and substantial answer is, in my
opinion, given to the allegation of substance, namely that there was a bribe. In my opinion
it is of the highest importance that this rule of pleading should be adhered to strictly, and
that the Court should require the Defendant, when putting in his statement of defence, and
the Plaintiff, when replying to the allegations of the Defendant, to state the point of
substance, and not to give formal denials of the allegations contained in the previous
pleadings without stating the circumstances. As far as I am concerned, I mean to give the
fullest effect to that rule. I am convinced that it is one of the highest benefit to suitors in the
Court."

(1) (1878) L.R. 7- Ch. D. 403.

It is true that in England the concerned rule is inflexible and that there is no proviso to it as
is found in the Code of Civil Procedure. But there is no reason why in Bombay on the
original side of the High Court the same precision in pleadings shall not be insisted upon
except in exceptional circumstances. The Bombay High Court, in Laxminarayanan v.
Chimniram Girdhai Lal(1), construed the said provisions and applied them to the pleadings
in a suit filed in the court of the joint Subordinate Judge of Ahmednagar. There the plaintiffs
sued to recover a sum of money on an account stated. For the purpose of saving limitation
they relied in their plaint upon a letter sent by the defendant-firm. The defendants in their
written statement stated that the plaintiffs's suit was not in time and that "the suit is not
saved by the letter put in from the bar of limitation". The question was raised whether in
that state of pleadings, the letter could be taken as admitted between the parties and,
therefore, unnecessary to be proved. Batchelor, Ag. C. T., after noticing the said provisions,
observed "It appears to us that on a fair reading of paragraph 6, its meaning is that though
the letter put in by the plaintiff is not denied the defendants contend that for one reason or
another its effect is not to save the suit from the bar of limitation. We think, there- fore,
that...... the letter, Exhibit 33, must be accepted as admitted between the parties, and
therefore, unnecessary to be proved." The written statement before the High Court in that
case was one filed in a court in the mofussil ; yet, the Bombay High Court implied the rule
and held that the letter need not be proved aliunde -is it must be deemed to have been
admitted in spite of the vague denial in the written statement. 1. therefore, hold that the
pleadings on the original side of the Bombay High Court should also be strictly construed,
having regard to the provisions of rr. 3, 4 and 5 of Order VIII of the Code of Civil
Procedure, unless there are circumstances wherein a Court thinks fit to exercise its
discretion under the proviso to r. 5 of O.VII.
 Kailash v. Nanhku (2005)

Q) Whether the time limit of 90 days as prescribed by the Proviso appended to Rule 1 of Order
VIII of the CPC is mandatory or directory in nature?

The CPC which consolidated and amended the laws relating to the procedure of the Courts
of Civil Judicature in the year 1908, has in the recent times undergone several amendments
based on the recommendations of the Law Commission displaying the anxiety of
Parliament to secure an early and expeditious disposal of civil suits and proceedings but
without sacrificing the fairness of trial and the principles of natural justice in-built in any
sustainable procedure. The Statement of Objects and Reasons for enacting Code of Civil
Procedure (Amendment) Act, 1976 (104 of 1976) records the following basic
considerations which persuaded the Parliament in enacting the amendments:-

(i) that a litigant should get a fair trial in accordance with the accepted principles of natural
justice;

(ii) that every effort should be made to expedite the disposal of civil suits and proceedings,
so that justice may not be delayed;

(iii) that the procedure should not be complicated and should, to the utmost extent possible,
ensure fair deal to the poorer sections of the community who do not have the means to
engage a pleader to defend their cases.

By Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) the text of Order VIII,
Rule 1 was sought to be substituted in a manner that the power of court to extend the time
for filing the written statement was so circumscribed as would not permit the time being
extended beyond 30 days from the date of service of summons on the defendant. As is well-
known, there was stiff resistance from the members of the Bar against enforcing such and
similar other provisions sought to be introduced by way of amendment and hence
the Amendment Act could not be promptly notified for enforcement. The text of the
provision in the present form has been introduced by Code of Civil Procedure
(Amendment) Act, 2002 (22 of 2002) with effect from 1.7.2002. The purpose of such like
amendments is stated in the Statement of Objects and Reasons as "to reduce delay in the
disposal of civil cases".

The text of Order VIII, Rule 1, as it stands now, reads 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 same on such other day, as may be specified
by the Court, for reasons to be recorded in writing, but which shall not be later than ninety
days from the date of service of summons."

Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule
1 has been drafted, shows that it casts an obligation on the defendant to file the written
statement within 30 days from the date of service of summons on him and within the
extended time falling within 90 days. The provision does not deal with the power of the
court and also does not specifically take away the power of the court to take the written
statement on record though filed beyond the time as provided for. Secondly, the nature of
the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive
law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to
curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the
disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court
for quick relief and also to the serious inconvenience of the court faced with frequent
prayers for adjournments. The object is to expedite the hearing and not to scuttle the same.
The process of justice may be speeded up and hurried but the fairness which is a basic
element of justice cannot be permitted to be buried.

All the rules of procedure are the handmaid of justice. The language employed by the
draftsman of processual law may be liberal or stringent, but the fact remains that the object
of prescribing procedure is to advance the cause of justice. In an adversarial system, no
party should ordinarily be denied the opportunity of participating in the process of justice
dispensation. Unless compelled by express and specific language of the Statute, the
provisions of the CPC or any other procedural enactment ought not to be construed in a
manner which would leave the court helpless to meet extraordinary situations in the ends
of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of
Bihar (1975) 1 SCC 774, are pertinent:-

"The mortality of justice at the hands of law troubles a Judge's conscience and points an
angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and
substantial justice. The humanist rule that procedure should be the handmaid, not the
mistress, of legal justice compels consideration of vesting a residuary power in judges to
act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable.
Justice is the goal of jurisprudence __ processual, as much as substantive."

In The State of Punjab and Anr. v. Shamlal Murari and Anr. (1976) 1 SCC 719, the Court
approved in no unmistakable terms the approach of moderating into wholesome directions
what is regarded as mandatory on the principle that "Processual law is not to be a tyrant but
a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid
and not the mistress, a lubricant, not a resistant in the administration of justice." In
Ghanshyam Dass and Ors. v. Dominion of India and Ors. (1984) 3 SCC 46, the Court
reiterated the need for interpreting a part of the adjective law dealing with procedure alone
in such a manner as to sub- serve and advance the cause of justice rather than to defeat it
as all the laws of procedure are based on this principle.

It is also to be noted that though the power of the Court under the proviso appended to Rule
1 of Order VIII is circumscribed by the words __ "shall not be later than ninety days" but
the consequences flowing from non-extension of time are not specifically provided though
they may be read by necessary implication. Merely, because a provision of law is couched
in a negative language implying mandatory character, the same is not without exceptions.
The courts, when called upon to interpret the nature of the provision, may, keeping in view
the entire context in which the provision came to be enacted, hold the same to be directory
though worded in the negative form.

In Sangram Singh v. Election Tribunal, Kotah & Anr. (1955) 2 SCR 1, this Court
highlighted 3 principles while interpreting any portion of the CPC. They are:

(i) A code of procedure must be regarded as such. It is 'procedure', something designed to

facilitate justice and further its ends: not a penal enactment for punishment and penalties;
not a thing designed to trip people up. Too technical a construction of sections that leaves
no room for reasonable elasticity of interpretation should therefore be guarded against
(provided always that justice is done to 'both' sides) lest the very means designed for the
furtherance of justice be used to frustrate it.

(ii) There must be ever present to the mind the fact that our laws of procedure are grounded
on a principle of natural justice which requires that men should not be condemned unheard,
that decisions should not be reached behind their backs, that proceedings that affect their
lives and property should not continue in their absence and that they should not be
precluded from participating in them. Of course, there must be exceptions and where they
are clearly defined they must be given effect to.

(iii) No forms or procedure should ever be permitted to exclude the presentation of the
litigant's defence unless there be an express provision to the contrary.

Our attention has also been invited to a few other provisions such as Rules 9 and 10 of
Order VIII. In spite of the time limit appointed by Rule 1 having expired, the court is not
powerless to permit a written statement being filed if the court may require such written
statement. Under Rule 10, the court need not necessarily pronounce judgment against the
defendant who failed to file written statement as required by Rule 1 or Rule

9. The court may still make such other order in relation to the suit as it thinks fit.

As stated earlier, Order VIII, Rule 1 is a provision contained in the CPC and hence belongs
to the domain of procedural law. Another feature noticeable in the language of Order VIII
Rule 1 is that although it appoints a time within which the written statement has to be
presented and also restricts the power of the Court by employing language couched in a
negative way that the extension of time appointed for filing the written statement was not
to be later than 90 days from the date of service of summons yet it does not in itself provide
for penal consequences to follow if the time schedule, as laid down, is not observed. From
these two features certain consequences follow.

Justice G.P. Singh notes in his celebrated work "Principles of Statutory Interpretation"
(Ninth Edition, 2004) while dealing with mandatory and directory provisions - "The Study
of numerous cases on this topic does not lead to formulation of any universal rule except
this that language alone most often is not decisive, and regard must be had to the context,
subject-matter and object of the statutory provision in question, in determining whether the
same is mandatory or directory. In an oft-quoted passage LORD CAMPBELL said: 'No
universal rule can be laid down as to whether mandatory enactments shall be considered
directory only or obligatory with an implied nullification for disobedience. It is the duty of
Courts of justice to try to get at the real intention of the Legislature by carefully attending
to the whole scope of the statute to be considered'." (p. 338) "For ascertaining the real
intention of the Legislature", points out SUBBARAO, J. "the court may consider inter alia,
the nature and design of the statute, and the consequences which would follow from
construing it the one way or the other; the impact of other provisions whereby the necessity
of complying with the provisions in question is avoided; the circumstances, namely, that
the statute provides for a contingency of the non- compliance with the provisions; the fact
that the non-compliance with the provisions is or is not visited by some penalty; the serious
or the trivial consequences, that flow therefrom; and above all, whether the object of the
legislation will be defeated or furthered". If object of the enactment will be defeated by
holding the same directory, it will be construed as mandatory, whereas if by holding it
mandatory serious general inconvenience will be created to innocent persons without very
much furthering the object of enactment, the same will be construed as directory." (pp. 339-
340) Two decisions, having a direct bearing on the issue arising for decision before us,
have been brought to our notice, one each by the learned counsel for either party. The
learned senior counsel for the appellant submitted that in Topline Shoes Ltd. v. Corporation
Bank (2002) 6 SCC 33, pari materia provision contained in Section 13 of the Consumer
Protection Act, 1986 came up for the consideration of the Court. The provision requires the
opposite party to a complaint to give his version of the case within a period of 30 days or
such extended period not exceeding 15 days as may be granted by the District Forum. The
Court took into consideration the Statement of Objects and Reasons and the legislative
intent behind providing a time frame to file reply and held : (i) that the provision as framed
was not mandatory in nature as no penal consequences are prescribed if the extended time
exceeds 15 days and; (ii) that the provision was directory in nature and could not be
interpreted to mean that in no event whatsoever the reply of the respondent could be taken
on record beyond the period of 45 days.

The Court further held that the provision is more by way of procedure to achieve the object
of speedy disposal of such disputes. The strong terms in which the provision is couched are
an expression of 'desirability' but do not create any kind of substantive right in favour of
the complainant by reason of delay so as to debar the respondent from placing his version
in defence in any circumstances whatsoever.

In our opinion, the view of the law so taken by this Court squarely applies to the issue
before us and we find ourselves in agreement with the law stated by the two-Judge Bench
of this Court in the case of Topline Shoes Ltd. (supra).

The learned counsel for the respondent, on the other hand, invited our attention to a three-
Judge Bench decision of this Court in Dr. J.J. Merchant & Ors. v. Shrinath
Chaturvedi (2002) 6 SCC 635, wherein we find a reference made to Order VIII, Rule 1 of
the CPC vide paras 14 and 15 thereof and the Court having said that the mandate of the law
is required to be strictly adhered to. A careful reading of the judgment shows that the
provisions of Order VIII, Rule 1 of the CPC did not directly arise for consideration before
the Court and to that extent the observations made by the Court are obiter. Also, the
attention of the Court was not invited to the earlier decision of this Court in Topline Shoes
Ltd. case (supra).
It was submitted by the senior learned counsel for the appellant that there may be cases and
cases which cannot be foretold or thought of precisely when grave injustice may result if
the time limit of days prescribed by Order VIII, Rule 1 was rigidly followed as an
insurmountable barrier. The defendant may have fallen sick, unable to move; may be he is
lying unconscious. Also, the person entrusted with the job of presenting a written statement,
complete in all respects and on his way to the court, may meet with an accident. The
illustrations can be multiplied. If the schedule of time as prescribed was to be followed as
a rule of thumb, failure of justice may be occasioned though for the delay, the defendant
and his counsel may not be to blame at all. However, the learned counsel for respondent
No.1 submitted that if the court was to take a liberal view of the provision and introduce
elasticity into the apparent rigidity of the language, the whole purpose behind enacting
Order VIII, Rule 1 in the present form may be lost. It will be undoing the amendment and
restoring the pre-amendment position, submitted the learned counsel.

We find some merit in the submissions made by the learned counsel for both the parties. In
our opinion, the solution __ and the correct position of law __ lie somewhere midway and
that is what we propose to do placing a reasonable construction on the language of Order
VIII, Rule 1.

Considering the object and purpose behind enacting Rule 1 of Order VIII in the present
form and the context in which the provision is placed, we are of the opinion that the
provision has to be construed as directory and not mandatory. In exceptional situations, the
court may extend the time for filing the written statement though the period of 30 days and
90 days, referred to in the provision, has expired. However, we may not be misunderstood
as nullifying the entire force and impact the entire life and vigour of the provision. The
delaying tactics adopted by the defendants in law courts are now proverbial as they do stand
to gain by delay. This is more so in election disputes because by delaying the trial of
election petition, the successful candidates may succeed in enjoying the substantial part, if
not in its entirety, the term for which he was elected even though he may loose the battle at
the end. Therefore, the judge trying the case must handle the prayer for adjournment with
firmness. The defendant seeking extension of time beyond the limits laid down by the
provision may not ordinarily be shown indulgence.

Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The
defendant should be vigilant. No sooner the writ of summons is served on him he should
take steps for drafting his defence and filing the written statement on the appointed date of
hearing without waiting for the arrival of the date appointed in the summons for his
appearance in the Court. The extension of time sought for by the defendant from the court
whether within 30 days or 90 days, as the case may be, should not be granted just as a
matter of routine and merely for asking more so, when the period of 90 days has expired.
The extension can be only by way of an exception and for reasons assigned by the defendant
and also recorded in writing by the Court to its satisfaction. It must be spelled out that a
departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being
allowed to be made because the circumstances were exceptional, occasioned by reasons
beyond the control of the defendant and such extension was required in the interest of
justice, and grave injustice would be occasioned if the time was not extended.
A prayer seeking time beyond 90 days for filing the written statement ought to be made in
writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed
put the defendants on terms including imposition of compensatory costs and may also insist
on affidavit, medical certificate or other documentary evidence (depending on the facts and
circumstances of a given case) being annexed with the application seeking extension of
time so as to convince the Court that the prayer was founded on grounds which do exist.

The extension of time shall be only by way of exception and for reasons to be recorded in
writing, howsoever brief they may be, by the court. In no case, the defendant shall be
permitted to seek extension of time when the court is satisfied that it is a case of laxity or
gross negligence on the part of the defendant or his counsel. The court may impose costs
for dual purpose: (i) to deter the defendant from seeking any extension of time just for
asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

However, no straitjacket formula can be laid down except that the observance of time
schedule contemplated by Order VIII Rule 1 shall be the rule and departure therefrom an
exception, made for satisfactory reasons only. We hold that Order VIII Rule 1, though
couched in mandatory form, is directory being a provision in the domain of processual law.
 SALEM ADVOCATES BAR ASSOCIATION (II) v. UOI

Order VIII Rule 1 Order VIII Rule 1, as amended by Act 46 of 1999 provides that the
defendant shall within 30 days from the date of service of summons on him, present a
written statement of his defence. The rigour of this provision was reduced by Amendment
Act 22 of 2002 which enables the Court to extend time for filing written statement, on
recording sufficient reasons therefor, but the extension can be maximum for 90 days. The
question is whether the Court has any power or jurisdiction to extend the period beyond 90
days. The maximum period of 90 days to file written statement has been provided but the
consequences on failure to file written statement within the said period have not been
provided for in Order VIII Rule 1. The point for consideration is whether the provision
providing for maximum period of ninety days is mandatory and, therefore, the Court is
altogether powerless to extend the time even in an exceptionally hard case.

It has been common practice for the parties to take long adjournments for filing written
statements. The legislature with a view to curb this practice and to avoid unnecessary delay
and adjournments, has provided for the maximum period within which the written
statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1
shall have to be determined by having regard to the object sought to be achieved by the
amendment. It is, thus, necessary to find out the intention of the legislature. The
consequences which may follow and whether the same were intended by the legislature
have also to be kept in view. In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal
Board, Rampur [AIR 1965 SC 895], a Constitution Bench of this Court held that the
question whether a particular provision is mandatory or directory cannot be resolved by
laying down any general rule and it would depend upon the facts of each case and for that
purpose the object of the statute in making out the provision is the determining factor. The
purpose for which the provision has been made and its nature, the intention of the
legislature in making the provision, the serious general inconvenience or injustice to
persons resulting from whether the provision is read one way or the other, the relation of
the particular provision to other provisions dealing with the same subject and other
considerations which may arise on the facts of a particular case including the language of
the provision, have all to be taken into account in arriving at the conclusion whether a
particular provision is mandatory or directory.

In Sangram Singh v. Election Tribunal Kotah & Anr. [AIR 1955 SC 425], considering the
provisions of the Code dealing with the trial of the suits, it was opined that:

"Now a code of procedure must be regarded as such. It is procedure, something designed

to facilitate justice and further its ends: not a Penal enactment for punishment and penalties;
not a thing designed to trip people up. Too technical construction of sections that leaves no
room for reasonable elasticity of interpretation should therefore be guarded against
(provided always that justice is done to both sides) lest the very means designed for the
furtherance of justice be used to frustrate it.

Next, there must be ever present to the mind the fact that our laws of procedure are
grounded on a principle of natural justice which requires that men should not be condemned
unheard, that decisions should not be reached behind their backs, that proceedings that
affect their lives and property should not continue in their absence and that they should not
be precluded from participating in them. Of course, there must be exceptions and where
they are clearly defined they must be given effect to. But taken by and large, and subject to
that proviso, our laws of procedure should be construed, wherever that is reasonably
possible, in the light of that principle. "

In Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33], the question for
consideration was whether the State Consumer Disputes Redressal Commission could grant
time to the respondent to file reply beyond total period of 45 days in view of Section
13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide time
frame to file reply is really made to expedite the hearing of such matters and avoid
unnecessary adjournments. It was noticed that no penal consequences had been prescribed
if the reply is not filed in the prescribed time. The provision was held to be directory. It was
observed that the provision is more by way of procedure to achieve the object of speedy
disposal of the case.

The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine
whether the provision is mandatory or directory. We have to ascertain the object which is
required to be served by this provision and its design and context in which it is enacted.
The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but
having regard to the context in which it is used or having regard to the intention of the
legislation, the same can be construed as directory. The rule in question has to advance the
cause of justice and not to defeat it. The rules of procedure are made to advance the cause
of justice and not to defeat it. Construction of the rule or procedure which promotes justice
and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice
and not its mistress. In the present context, the strict interpretation would defeat justice. In
construing this provision, support can also be had from Order VIII Rule 10 which provides
that where any party from whom a written statement is required under Rule 1 or Rule 9,
fails to present the same within the time permitted or fixed by the Court, the Court shall
pronounce judgment against him, or make such other order in relation to the suit as it thinks
fit. On failure to file written statement under this provision, the Court has been given the
discretion either to pronounce judgment against the defendant or make such other order in
relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall',
the court has been given the discretion to pronounce or not to pronounce the judgment
against the defendant even if written statement is not filed and instead pass such order as it
may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and
Rule 10, the doctrine of harmonious construction is required to be applied. The effect would
be that under Rule 10 of Order VIII, the court in its discretion would have power to allow
the defendant to file written statement even after expiry of period of 90 days provided in
Order VIII Rule 1. 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'. 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. 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.
 Modula India v. Kamakshya Singh Deo (1988)

Rule 1 merely requires that the defendant should present a written statement of his
defence within the time permitted by the court. Under rule 5(2), where the defendant has
not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of
the facts contained in the plaint except against a person under disability but the court may
in its discretion require any such fact to be proved. Again under rule 10 when any party
from whom a written statement is required fails to present the same within the time
permitted or fixed by the court, the court "shall pronounce judgment against him or make
such order in relation to the suit as it thinks fit." It will be seen that these rules are only
permissive in nature. They enable the court in an appropriate case to pronounce a decree
straightaway on the basis of the plaint and the averments contained therein. Though the
present language of rule 10 says that the court "shall" pronounce judgment against him,
it is obvious from the language of the rule that there is still an option with the court either
to pronounce judgment on the basis of the plaint against the defendant or to make such
other appropriate order as the court may think fit. Therefore, there is nothing in these
rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff
straightaway because a written statement has not been filed. Reference was made before
us to sub-rule 1 of rule 5. This sub-rule, however, has application only in a case where a
pleading is filed but does not contain a specific or implicit denial of the averments
contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made
use of to sustain the contention that where there is no written statement the court is
bound to accept the statements contained in the plaint and pass a decree straightaway.
These provisions of the Code of Civil Procedure, far from supporting the contentions of
the plaintiff that a decree on the basis of the plaint should follow a failure to file the
written statement. rather indicate a contrary position, namely, that even in such cases, it
is a matter for the court to exercise a discretion as to the manner in which the further
proceedings should take place.
 Balraj Taneja v. Sunil Madan (1999)

Order 8 Rule 1 provides that the defendant shall file a Written Statement of his defence. It
is further provided by Rule 3 of Order 8 that it shall not be sufficient for a defendant in his
Written Statement to deny generally the grounds alleged by the plaintiff, but defendant
must deal specifically with each allegation of fact of which he does not admit the truth. The
further requirement as set out in Rule 4 is that if the allegation made in the plaint is denied
by the defendant, the denial must not be evasive. It is, inter alia, provided in Rule 5 of Order
8 that every allegation of fact in the plaint, if not denied specifically or by necessary
implication or stated to be not admitted in the written statement, shall be taken to be
admitted.

This Rule provides as under :

"Order 8 Rule 5 - Specific denial (1) Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as against a person under disability :

Provided that the Court may in its discretion require any fact so admitted to be proved
otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to
pronounce judgment on the basis of the facts contained in the plaint, except as against a
person under a disability, but the Court may, in its discretion, require any such fact to be
proved.

(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the
Court shall have due regard to the fact whether the defendant could have, or has, engaged
a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in
accordance with such judgment and such decree shall bear the date on which the judgment
was pronounced."

The scheme of this Rule is largely dependent upon the filing or non-filing of the pleading
by the defendant. Sub-rule (1) of Rule 5 provides that any fact stated in the plaint, if not
denied specifically or by necessary implication or stated to be not admitted in the pleading
of the defendant, shall be treated as admitted. Under Rule 3 of Order 8, it is provided that
the denial by the defendant in his written statement must be specific with reference to each
allegation of fact made in the plaint. A general denial or an evasive denial is not treated as
sufficient denial and, therefore, the denial, if it is not definite, positive and unambiguous,
the allegations of facts made in the plaint shall be treated as admitted under this Rule.

The proviso appended to this Rule is important in the sense that though a fact stated in the
plaint may be treated as admitted, the Court may, in its discretion, still require such
"admitted fact" to be proved otherwise than by such admission. This is an exception to the
general rule of evidence that a fact which is admitted need not be proved.

Sub-rule (2) provides that if the defendant has not filed his written statement, it would be
lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint.
The rule further proceeds to say that notwithstanding that the facts stated in the plaint are
treated as admitted, the Court, though it can lawfully pass the judgment, may before passing
the judgment require such fact to be proved. The rule is thus in consonance with the Proviso
which also requires the fact, even though treated as admitted, to be proved. Thus, the
Proviso and Sub- rule (2) read together indicate that where

(i) an allegation of fact made in the plaint is not denied specifically, or

(ii) by necessary implication, or

(iii) stated to be "not admitted" in the pleading of the defendant, or

(iv) the defendant has not filed the written statement, such allegations of facts shall be
treated as admitted. The Court in this situation can either proceed to pronounce judgment
on such admitted facts or may require the plaintiff, in spite of such admission, to prove such
facts.

Sub-rule (2) quoted above is thus an enabling provision which enables the Court to
pronounce judgment on the basis of the facts contained in the plaint, if the defendant has
not filed a Written Statement. What is important to note is that even though a Written
Statement is not filed by the defendent, the court may still require a fact pleaded in the
plaint to be proved.

We may now consider the provisions of Order 8 Rule 9 as also the provisions contained in
the other Rule, namely Rule 10, under which the instant suit has been decreed by the High
Court. These Rules are quoted below:

"Rule 9. Subsequent pleadings -- No pleading subsequent to the written statement of a

defendant other than by way of defence to a set-off or counter-claim shall be presented
except by the leave of the Court and upon such terms as the Court thinks fit, but the Court
may at any time require a written statement or additional written statement from any of the
parties and fix a time for presenting the same.

Rule 10. Procedure when party fails to present written statement called for by Court --
Where any party from whom a written statement is required under rule 1 or rule 9 fails to
present the same within the time permitted or fixed by the Court, as the case may be, the
Court shall pronounce judgment 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." .lm10
This Rule, namely Rule 10, was also amended by the Code of Civil Procedure
(Amendment) Act, 1976 (Act No. 104 of 1976). Prior to its amendment, it was held in a
number of decisions that the rule can be invoked only in those situations where the Court
has required the defendant to file the Written Statement in terms of Rule 9 of Order 8. A
few other High Courts had taken the view that this Rule would be applicable even to those
cases where a Written Statement was required to be filed under Order 8 Rule 1 CPC. The
conflict of decisions has been set at rest by providing specifically under this rule that where
a party from whom a Written Statement is required either under Rule 1 or Rule 9 of Order
8 fails to present the same within the time permitted or fixed by the Court, the Court shall
pronounce judgment against him or make such order in relation to the suit as it thinks fit.
Rule 10 thus governs both the situations where a Written Statement is required under Rule
1 of Order 8 as also where it has been demanded under Rule

9. In both the situations, if the Written Statement has not been filed by the defendant, it will
be open to the Court to pronounce judgment against him or make such order in relation to
the suit as it thinks fit. It is to be noticed that if the Written Statement is not filed, the Court
is required to pronounce judgment against the defendant. The words "against him" are to
be found in Rule 10 of Order 9 which obviously means that the judgment will be pronouced
against the defendant. This rule also gives a discretion either to pronounce judgment against
the defendant or "make such order in relation to the suit as it thinks fit." These words are
of immense significance, inasmuch as they give a discretion to the Court not to pronounce
judgment against the defendant and instead pass such order as it may think fit in relation to
the suit.

There are thus two separate and distinct provisions under which the Court can pronounce
judgment on the failure of the defendant to file Written Statement. The failure may be either
under Order 8 Rule 5(2) under which the Court may either pronounce judgment on the basis
of the facts set out in the plaint or require the plaintiff to prove any such fact; or the failure
may be under Order 8 Rule 10 CPC under which the Court is required to pronounce
judgment against the defendant or to pass such order in relation to the suit as it thinks fit.

This Court, in Sangram Singh v. Election Tribunal, Kotah & Anr. AIR 1955 SC 425 = 1955
(1) SCR 1, observed on page 432 of the report as under :

"(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.

(33) We have seen that if the defendant does not appear at the first hearing, the Court can
proceed `ex parte', which means that it can proceed without a written statement; and O.9,
R.7 makes it clear that unless good cause is shown the defendant cannot be relegated to the
position that he would have occupied if he had appeared. That means that he cannot put in
a written statement unless he is allowed to do so, and if the case is one in which the Court
considers a written statement should have been put in, the consequences entailed by O.8,
R.10 must be suffered.

What those consequences should be in a given case is for the Court, in the exercise of its
judicial discretion, to determine. No hard and fast rule can be laid down. In some cases, an
order awarding costs to the plaintiff would meet the ends of justice: an adjournment can be
granted or a written statement can be considered on the spot and issues framed. In other
cases, the ends of justice may call for more drastic action."

This decision was followed by the J&K High Court in Chuni Lal Chowdhry vs. Bank of
Baroda and Others, AIR 1982 J&K 93 in which it was laid down as under :

"On the authority of these observations, Rule 10 can be taken to relate to Rule 1 of Order
8 and on the defendant's failure to file written statement of his defence, when so required,
the court has the power, either to pronounce the judgment against him or make such order
in relation to the suit as it thinks fit depending upon whether the suit was for the final
disposal or for the settlement of the issues only. In the latter case, the court has ample
discretion to grant more time for filing the written statement or to proceed to hearing of the
suit without such written statement. The discretion cannot, however, be exercised
arbitrarily. In determining which course to adopt, the court will always be guided by the
facts and circumstances of each case. Where the court decides to proceed to hearing of the
suit without the written statement, that would not debar the defendant from taking part in
further proceedings of the case. His participation would, however, be hedged in by several
limitations. He will not be able either to cross-examine the plaintiff's witnesses or to
produce his own evidence with regard to any questions of fact which he could have pleaded
in the written statement. He will, however, be competent to cross-examine the plaintiff's
witnesses in order to demolish their version of the plaintiff's case.

In Dharam Pal Gupta vs. District Judge, Etah 1982 All Rent Cases 562, the Allahabad High
Court held as under :

"Therefore, reading Order VIII, R.10, C.P.C. along with O.VIII, R.5, C.P.C., it seems that
even though the filing of written statement has been made obligatory and the Court has
now been empowered to pass a judgment on the basis of the plaint on the ground that no
written statement has been filed by the defendant still, the discretion of the Court has been
preserved and despite the non-filing of the written statement the Court may pass any other
order as it may think fit (as laid down in O. VIII R.10) or the Court may in its discretion
require any particular fact mentioned in the plaint to be proved as laid down in Order VIII,
R.5 sub-rule (2) C.P.C."

In Razia Begum vs. Sahebzadi Anwar Begum & Ors. AIR 1958 SC 886 = 1959 SCR 1111,
it was held that Order 12 Rule 6 has to be read along with Proviso to Rule 5 of Order 8.
That is to say, notwithstanding the admission made by the defendant in his pleading, the
Court may still require the plaintiff to prove the facts pleaded by him in the plaint.
Thus, in spite of admission of a fact having been made by a party to the suit, the Court may
still require the plaintiff to prove the fact which has been admitted by the defendant. This
is also in consonance with the provisions of Section 58 of the Evidence Act which provides
as under :

"58. Facts admitted need not be proved - No fact need be proved in any proceeding which
the parties thereto or their agents agree to admit at the hearing, or which, before the hearing,
they agree to admit by any writing under their hands, or which by any rule of pleading in
force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved
otherwise than by such admissions."

The Proviso to this Section specifically gives a discretion to the Court to require the facts
admitted to be proved otherwise than by such admission. The Proviso corresponds to the
Proviso to Rule 5(1) Order 8 CPC.

In view of the above, it is clear that the Court, at no stage, can act blindly or mechanically.
While enabling the Court to pronounce judgment in a situation where no Written Statement
is filed by the defendant, the Court has also been given the discretion to pass such order as
it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where
the Court can either pronounce judgment against the defendant or pass such order as it may
think fit.

Having regard to the provisions of Order 12 Rule 6; Order 5 Rule 8, specially Proviso
thereto; as also Section 58 of the Evidence Act, this Court in Razia Begum's case (supra)
observed as under : .lm15 "In this connection, our attention was called to the provisions of
R.6 of O.12 of the Code of Civil Procedure, which lays down that, upon such admissions
as have been made by the Prince in this case, the Court would give judgment for the
plaintiff. These provisions have got to be read along with R.5 of O.8 of the Code with
particular reference to the proviso which is in these terms:

"Provided that the Court may in its discretion require any fact so admitted to be proved
otherwise than by such admission".

The proviso quoted above, is identical with the proviso to S. 58 of the Evidence Act, which
lays down that facts admitted need not be proved. Reading all these provisions together, it
is manifest that the Court is not bound to grant the declarations prayed for, even though the
facts alleged in the plaint, may have been admitted."

The Court further observed:-

"Hence, if the Court, in all the circumstances of a particular case, takes the view that it
would insist upon the burden of the issue being fully discharged, and if the Court, in
pursuance of the terms of S. 42 of the Specific Relief Act, decides, in a given case, to insist
upon clear proof of even admitted facts, the Court could not be said to have exceeded its
judicial powers."
As pointed out earlier, the Court has not to act blindly upon the admission of a fact made
by the defendant in his Written Statement nor the Court should proceed to pass judgment
blindly merely because a Written Statement has not been filed by the defendant traversing
the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a
Written Statement has not been filed by the defendant, the Court should be a little cautious
in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the
defendant it must see to it that even if the facts set out in the plaint are treated to have been
admitted, a judgment could possibly be passed in favour of the plaintiff without requiring
him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and,
therefore, only on being satisfied that there is no fact which need be proved on account of
deemed admission, the Court can conveniently pass a judgment against the defendant who
has not filed the Written Statement. But if the plaint itself indicates that there are disputed
questions of fact involved in the case regarding which two different versions are set out in
the plaint itself, it would not be safe for the Court to pass a judgment without requiring the
plaintiff to prove the facts so as to settle the factual controversy. Such a case would be
covered by the expression "the Court may, in its discretion, require any such fact to be
proved" used in sub- rule (2) of Rule 5 of Order 8, or the expression "may make such order
in relation to the suit as it thinks fit" used in Rule 10 of Order 8.

Applying these tests to the instant case, it will be noticed that in a suit for specific
performance it is mandatorily required by Section 16 of the Specific Relief Act to plead
readiness and willingness of the plaintiff to perform his part of the contract. The Court,
before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find
out whether all the requirements, specially those indicated in Section 16 of the Specific
Relief Act, have been complied with or not. Readiness and willingness of the plaintiff to
perform his part of the contract is a condition precedent to the passing of a decree for
specific performance in favour of the plaintiff.