Point of Law : Even if the point does not directly and specifically arise and there are no binding judgments on the point of law involved, the courts in India are expected to follow the opinions even if it is an obiter of the Apex Court.

ORDER :

A. Muhamed Mustaque, J.

Is the time limit fixed under Order VIII Rule 1 of the Code of Civil Procedure for filing a written statement, mandatory or directory in character? This is the question we have to answer in this reference, in the context of non commercial suits before the civil courts.

2. The learned Single Judge, noting the different views of the Apex Court in its various judgments, opined that which of those judgments of the Apex Court should prevail as a binding precedent has to be answered by a Division Bench.

3. We shall refer to the parties with reference to their status in the original suit.

4. We had the advantage of hearing Adv. B.G. Bhasker, assisted by Adv.Biju Abraham, appearing for the plaintiffs in the suit before the court below. We also heard the learned Government Pleader appearing for the Government, who are the defendants in the suit. We also heard Adv. B. Parthasarathy, who was appointed as Amicus Curiae in the matter.

5. The plaintiffs filed a suit for a declaration that the Government Order, ordering dispossession of the plaintiffs from the suit premises is illegal and for a consequential injunction to restrain the defendants from dispossessing the plaintiffs from the suit property. In the suit, the copy of the plaint was served on the learned Government Pleader on 3/1/2017 as the plaintiffs required urgent relief in the suit. This service was in accordance with Section 80 (2) of the Code of Civil Procedure.

6. As mandated under the proviso to Rule 1 of Order VIII of CPC, the defendants have to file a written statement within 30 days. The provision further states that the Court has the power to receive written statement beyond 30 days, for reasons to be recorded in writing. But that period shall not be later than 90 days from the date of service of summons.

7. In this case, on 5/4/2017, an application was filed by the learned Additional Government Pleader to receive written statement after the condonation of delay of 47 days in filing the written statement. The plaintiffs raised objections in receiving the written statement after the outer limit of the period referred to in Order VIII Rule 1 CPC. Overruling these objections, the learned Sub Judge, in a reasoned order, after adverting to various precedents referred therein, condoned delay in filing the written statement and received the written statement on record. This order is under challenge before the learned Single Judge, invoking Article 227 of the Constitution of India at the instance of the plaintiffs in the suit.

8. The learned counsel Shri B.G. Bhasker, argued in extenso. He raised three points for consideration by us :

i. Whether the outer limit fixed to file written statement under Order VIII Rule 1 is directory or mandatory?

ii. If this Court holds that it is directory, whether the defendants in the suit have made out a case to condone delay?

iii. Are the plaintiffs entitled for costs in the event the Court finds that delay can be condoned?

9. We are only answering the reference with respect to the point of law involved. We are of the view that the points (ii) and (iii) do not arise for consideration by us. We, therefore, leave open the above points to be considered at an appropriate stage.

10. The short point, according to us, is not the interpretation of Order VIII Rule 1 CPC, to find out whether the time limit fixed therein is mandatory or directory in character. The Apex Court has already interpreted the statutory provisions in various judgments. It is true that as pointed out by the learned Single Judge, there are varying views expressed by the Apex Court in various judgments. Our task, in such circumstances, is to find out which among those judgments is binding upon all the Courts.

11. The line of decisions starting from Dr. J.J. Merchant v. Shrinath Chathurvedi [(2002) 6 SCC 635] have adverted to the point involved in this case. In Dr. J.J. Merchant's case, the Apex Court at paras.14 and 15 opined as follows :

“14. For this purpose, even