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2005 Supreme(SC) 1497

Shaikh Salim Haji Abdul Khayumsab – Appellant
Versus
Mr. Kumar – Respondent


Judgement Key Points

Key Points:- The court held that Order VIII, Rule 1, as amended, is procedural and aims to expedite hearings, not to deny plaintiffs relief; it allows extension beyond 90 days in exceptional circumstances. (!) (!) (!) - Written statements must be filed within 30 days from service of summons and, within an extended period, but no later than 90 days from service; failure to extend can be addressed if the court permits. (!) (!) - The power to extend beyond 90 days can be exercised in exceptional cases, and the consequences of non-extension are not expressly provided but may be implied; equity and preventing prejudice to parties are considered. (!) (!) - The procedural rules should serve justice and not become a barrier; a fortuitous holiday extending the filing date can be considered within the time extended. (!) (!) - Committee and judicial discussions concluded that whether the 90-day maximum is mandatory or directory depends on object and context, with emphasis on preventing delay and ensuring fair opportunity to litigants. (!) (!)

How to determine whether extension of time beyond the maximum 90 days for filing written statement is permissible?What is the nature and purpose of Order VIII Rule 1 in relation to filing written statements within 30 days and extended up to 90 days?What are the principles for treating procedural rules as mandatory or directory in the context of extending time for written statements?


Judgment

Arijit Pasayat, J.—Leave granted.

2. Both the appeals involve identical issues except that appellant Shaikh Salim Haji Abdul Khayumsab was respondent No. 15 in the suit and appellant Kanti Lal was defendant No. 1.

3. Challenge in these appeals is to judgment rendered by a learned Single Judge of the Bombay High Court in WP Nos. 2500 and 2501 of 2004. The writ Petitions filed by the present appellants were dismissed by learned single judge holding that the trial court was right in its view that there was no scope for granting extension of time beyond the period of 90 days to file the written statement, in view of the amendment to the Code of Civil Procedure, 1908 (in short the ‘CPC’) by Civil Procedure Code (Amendment) Act, 1999 (in short the 1999 ‘Amendment Act’). Factual background needs to be noted in brief.

4. In a suit for partition, separate possession and perpetual injunction the appellants were arrayed as defendant Nos. 15 & 1. The suit filed by respondent No. 1 was Special Civil Suit No. 144 of 2003 in the Court of Civil Judge (Senior Division), Latoor. The appellants were summoned under Order V Rule 1 & 5 CPC on 21st October, 2003. They sought time to file the Written































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