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Salem Bar Association v Union of


India –

Submitted by:
PARVATHI SUBASH – 16040142092

Submitted to:
Prof.Raghunath V

ALLIANCE SCHOOL OF LAW


Alliance University, Bangalore.
23rd APRIL, 2019
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Table of Content

1. Introduction……………………..

2. Research Question……………….

3. Existing Legal Situation………...

4. Scope & objectives……………...

5. Conclusion……………………….

6. Bibliography…………………
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INTRODUCTION
The Salem Advocate Bar Association v. Union of India 2005 (6) SCC 344 is basically an
aftermath of the original case [Salem Advocates Bar Association, Tamil Nadu. v. Union of India]
AIR 2003 SC 189. The Honorable Judges presiding over the case were Y. K. Sabharwal, D. M.
Dharmadhikari and Tarun Chatteijee. The subject is basically related to Constitution and is a
case of civil nature. In the former case there were certain amendments made to Code ofCivil
Procedure, 1908 by the Amendment Acts of 1999 and 2002.

Judgement of this particular case was divided into - The report into three parts.
 Report 1 contains the consideration of the various grievances relating to amendments to
the Code and the recommendations of the Committee. Order 8 Rule 1 amendment by
Act 46 of 1999.
 Report 2 contains the consideration of various points raised in connection with draft rules
for ADR and mediation as envisaged by section 89 of the Code read with Order X Rule 1
A, IB and1C.
 Report 3 contains a conceptual appraisal of case management.

he Civil Procedure Code 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.

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
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of such like amendments is stated in the Statement of Objects and Reasons as "to reduce
delay in the disposal of civil cases".

LEGAL SITUATION
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."

From the above provision 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.
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However the new provision created confusion among the Courts and lawyers that whether the
default outer limit of ninety days prescribed by the proviso to Rule 1 of Order VIII of the Code is
conclusive so that in no case, howsoever exceptional, would a breach of this outer limit be
warranted and that in no case, the balancing act of the court would be allowed to incline towards
an extension of time, beyond the period of ninety days, for filing the written statement.

The constitutional validity of the 2002 Amendment was challenged before the Supreme Court in
Salem Advocate Bar Association v. Union of India AIR 2003 SC 189, (2003) 1 SCC 49 (Salem
Advocate Bar I). The Court held that the 2002 Amendment was not in any way ultra vires the
Constitution. However To ensure that the amendments became effective and resulted in quicker
dispensation of justice, the Court constituted a Committee with directions to submit a detailed
report concerning the 2002 Amendment.

RESEARCH PROBLEM AND QUESTION

Question: Is it permissible for the court to permit filing of the written statement by the
defendant in a civil suit beyond the maximum period of 90 days permissible under Order 8
Rule 1 of the Civil Procedure Code?

Answer: Before I answer this question, let me reproduce Rule 1 and Rule 10 of the Order 8 of the
CPC, because they would be relevant for this answer:

“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.”

“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.”
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It is clear from Rule 1 above that ordinarily the defendant is required to file the written statement
of his defence within a period of 30 days. However, the Proviso to the said Rule permits the
Court, for reasons to be recorded in writing, to allow filing of the written statement within a
maximum period of 90 days.

Now, your question is whether the written statement can be filed even beyond this maximum
period of 90 days?

The answer to your question is “yes” in certain exceptional situations. Let me explain the
answer.

In the case of Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344, the Supreme
Court has interpreted the above Rule 1 with the help of the above Rule 10 of Order 8 of the CPC,
in the following words:

“21. In construing this provision, support can also be had from Order 8 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 the 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
the 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 8 Rule 1 and Rule 10, the doctrine of harmonious
construction is required to be applied. The effect would be that under Rule 10 Order Order 8, the
court in its discretion would have the power to allow the defendant to file written statement even
after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order
8 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 8 Rule 1 providing for the 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 8 Rule 1.”
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It is quite clear from the aforesaid judgement of the Supreme Court that the maximum time
period of 90 days for filing the written statement mentioned in Order 8 Rule 1 is only directory
and not mandatory. This implies that in certain exceptional situations, the court has the power to
extend the aforesaid maximum period of 90 days for the purposes of filing of the written
statement by the defendant. However, as pointed out by the Supreme Court itself, such extension
of time beyond 90 days should only be in exceptionally hard cases.

It is pertinent to point out that in a previous case, namely, Kailash v. Nanhku, (2005) 4 SCC 480,
the Supreme Court had come to more or less a similar conclusion, though in a different context,
that the power of the court to extend time for filing of the written statement in an election
petition is not circumscribed by Order 8 Rule 1 of CPC and the proviso thereto.

Recently in the case of Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639,
the Supreme Court has reiterated the legal principle laid down in the aforesaid case of Salem
Advocate Bar Assn. that the maximum time period of 90 days for the purposes of filing of the
written statement can be extended in exceptional cases. It was held that in such a situation, onus
upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for
not filing the written statement within thirty days.

In view of the aforesaid judgments of the Supreme Court, it should be clear that in appropriate
cases further time may be granted by the court beyond the maximum permissible time period of
90 days for the purposes of filing of the written statement by the defendant in a civil suit.
However, this can be done only in exceptional situations and the burden to explain the reasons
for delay in a satisfactory manner lies on the defendant who seeks extension of time for filing the
written statement.

SCOPE AND OBJECTIVE


As regards the provisions of Rule 1 of Order VIII, the Court reproduced the Report, in para 21,
as follows:
" 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
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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, …where despite
the use of the word "shall"in Rule 1, the court has been given discretion to pronounce or not to
pronounce the judgment against the defendant even if the written statement is not filed and
instead pass such order as it may think fit in relation to the suit. In construing the provisions of
Order 8, 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
the power to allow the defendant to file the written statement even after the expiry of the period
of 90 days provided under Order VIII Rule 1."

Clearly, therefore, the provision of Order VIII Rule 1 providing for the upper limit of 90 days to
file written statement is directory.

In Kailash v. Nanhku and Ors AIR 2005 SC 2441, (2005) 4 SCC 480 the Apex Court observed
that " 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. "

" 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."

The Court further observed that while extending the time beyond the stipulated period of 90
days, the courts may impose costs as a means to
(a) deter the defendant and
(b) compensate the plaintiff.
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The Court also held that the defendant seeking extension may be required to furnish affidavit and
other documents in support of the grounds pleaded for extension of time, depending on the facts
and circumstances of a given case.
In Shaikh Salim Haji Abdul Khayumsab v. Kumar,AIR 2006 SC 396, (2006) 1 SCC 46 the
appellants were summoned on 21.10.2003 and sought time to file the written Statement, which
was granted first until 17.11.2003 and for a second time until 19.02.2004. The latter date being a
holiday, the written statement was filed on 20.02.2004. The trial court refused to accept the
written statement on the ground of limitation.

The Supreme Court found that the trial court had itself granted time up to 19.02.2004, which date
fell beyond the period of 90 days. On the reasoning, that had the written statement been filed on
19.02.2004, the trial court could not have refused to accept the written statement as it was within
the time granted by it, held that a mere fortuitous circumstance cannot make the written
statement filed, unacceptable.

3. In R.N. Jadi v. Subhashchandra AIR 2007 SC 2571, (2007) 6 SCC 420 A dispensation that
makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately
would tend to defeat the object sought to be achieved by the amendments to the Code. It is,
therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not
automatic, that it should be exercised with caution and for adequate reasons and that an extension
of time beyond 90 days of the service of summons must be granted only based on a clear
satisfaction of the justification for granting such extension, the court being conscious of the fact
that even the power of the court for extension inhering in Section 148 of the Code, has also been
restricted by the legislature. It would be proper to encourage the belief in litigants that the
imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases,
the breach thereof will be condoned. Such an approach by courts alone can carry forward the
legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits
filed in courts.

CONCLUSION
However in Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd, AIR 2007 SC 1574 where
the summons was served on the defendant on 22.03.2005. On 25.04.2005, the counsel for the
defendant sought, and was granted, time to file the written statement until 20.06.2005. The
matter was adjourned three times and the written statement was finally filed in August 2005, i.e.
almost five months later. Despite serious objections from the plaintiff, the court accepted the
written statement, subject to costs of Rs.2,000/-. The action of the court accepting the written
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statement was challenged before the Supreme Court on the ground that the proviso to Order VIII,
Rule 1 mandates the recording of reasons, which, in the matter, the courts below had failed to
record. The apex Court set aside the orders of the lower courts on the ground that no reason(s)
had been indicated justifying the acceptance of the belated written statement.
Thus it is clear from the above discussion that the the limitation of filing written statement under
Order VIII, Rule 1,is directory and not mandatory. The Court may accept written statement
beyond the maximum prescribed limit of 90 days. However, the power of the Court to grant
extension should be exercised
(a) with caution,
(b) for adequate reasons
(c) only based on a clear satisfaction of the
justification for granting such extension and
(d) only in rare and exceptional cases.

What, however,continues to be difficult is the assessment of the gravity of circumstances in


which judicial discretion warrants an exercise in favour of the extension of time.

BIBLIOGRAPHY

 https://indiankanoon.org/doc/342197/
 jajharkhand.in/.../Salem_Advocate_Bar_Association,_..._vs_Union_Of_India_on_25_
 www.legalserviceindia.com/.../l423-Salem-Advocates-Bar-Association-v.-Union-of-In.
 http://shodhganga.inflibnet.ac.in/bitstream/10603/129423/17/17_annexure%201.pdf
 https://www.sci.gov.in/jonew/judis/29221.pdf