Delayed Written Statements Accepted: J&K and Ladakh High Court Upholds Trial Court Orders Based on COVID Limitation Exclusion and Party Waiver

Jammu : The High Court of Jammu & Kashmir and Ladakh has dismissed a petition challenging trial court orders that allowed two defendants to file their written statements beyond the usual time limit prescribed under Order 8 Rule 1 of the Code of Civil Procedure (CPC). The court's decision hinged on the Supreme Court's directions regarding the exclusion of the COVID-19 pandemic period for limitation purposes and the principle of waiver by the plaintiff.

The petitioner had sought a declaration that certain sale deeds and a revenue order were null and void and a permanent injunction against the respondents.

Background of the Dispute

The suit was filed on September 18, 2021. Summons were issued to the respondents (defendants). Defendant No. 2's counsel appeared on November 11, 2021, and Defendant No. 1's counsel filed a Vakalatnama on December 16, 2021. Despite repeated opportunities and requests for time, the written statements were not filed within the initial prescribed period of 30 days, nor the extended period of 90 days, or even the maximum permissible 120 days from the date of service/appearance.

Defendant No. 1 filed his written statement on May 28, 2022, which was taken on record. Defendant No. 2 filed his written statement on September 30, 2022. The petitioner's counsel objected, arguing it was time-barred under Order 8 Rule 1 CPC, which is mandatory in nature and limits the time to file a written statement to a maximum of 120 days from the date of service of summons.

However, on October 31, 2022, the trial court, based on a concession made by the petitioner's counsel, allowed Defendant No. 2's written statement to be taken on record, subject to the payment of costs of Rs. 2000/-. The petitioner subsequently challenged both the order allowing Defendant No. 1's written statement (dated 28.05.2022) and Defendant No. 2's written statement (dated 31.10.2022) before the High Court under Article 227 of the Constitution.

Petitioner's Arguments

The petitioner contended that both written statements were filed after the expiry of the 120-day period, rendering them invalid as per the mandatory provisions of Order 8 Rule 1 CPC. They argued that the trial court lacked the power to accept the written statements after this period. Regarding Defendant No. 1, the petitioner argued that the Supreme Court's COVID limitation exclusion should not apply as the defendant was already appearing through counsel. Regarding Defendant No. 2, they claimed that the concession made by their counsel was either uninformed or could not override the mandatory statutory prohibition.

Respondents' Submissions

The respondents countered that Defendant No. 1's written statement was timely when considering the exclusion period directed by the Supreme Court in the Cognizance for extension of Limitation case. They argued that the period from December 16, 2021 (when appearance was noted) until February 28, 2022, must be excluded, making the filing on May 28, 2022, well within the 120-day limit calculated from March 1, 2022.

For Defendant No. 2, they argued that the plaintiff had waived his right to object to the delay by expressly consenting to the filing of the written statement on record, subject to costs. This waiver, they contended, estopped the petitioner from challenging the order.

Court's Analysis and Findings

The High Court, after considering the arguments and the trial court record, addressed each defendant's case separately.

Regarding Defendant No. 1: The court noted that Defendant No. 1 came to know about the proceedings on December 16, 2021. Referring to the Supreme Court's directions in Cognizance for extension of Limitation , particularly the order dated January 10, 2022, the court emphasized that the period from March 15, 2020, till February 28, 2022, stands excluded for limitation purposes in all judicial proceedings.

The court held that the period from December 16, 2021, to February 28, 2022, must be excluded for Defendant No. 1. Therefore, the 120-day period for filing the written statement effectively started running from March 1, 2022. Since the written statement was filed on May 28, 2022, the court concluded it was filed "well within the stipulated period of 120 days from 01.03.2022."

The court distinguished the Delhi High Court judgment cited by the petitioner ( HT Media Limited vs. Brainlink International Inc. ), noting that in that case, the defendant had actively filed multiple applications before filing the written statement, indicating no practical difficulty due to the pandemic in interacting with counsel. In contrast, Defendant No. 1 here had only filed a Vakalatnama and sought time, with nothing on record showing the pandemic did not prevent interaction with counsel for drafting pleadings.

Regarding Defendant No. 2: The court examined the trial court order dated October 31, 2022, which explicitly recorded the plaintiff's counsel's concession to taking the written statement on record subject to costs. The court addressed the petitioner's argument that a mandatory statutory right under Order 8 Rule 1 CPC could not be waived.

Citing established legal principles, the court stated that while Order 8 Rule 1 is mandatory, the right accruing to a party due to non-compliance by the opposing party is a statutory right, not a constitutional or fundamental right.

The judgment stated:

"A statutory right can certainly be waived by a person, therefore, the contention of learned counsel for the petitioner/plaintiff that the plaintiff could not have waived the right that had accrued in his favour on account of default of defendant No.2, is without any substance. It is a well known position of law that even a right under a mandatory provision can be waived."

The court rejected the argument that the junior associate was unaware of the consequences, noting that the senior counsel had objected to the delay on the previous date, indicating full knowledge of the time expiry. The concession was deemed a conscious decision. The court also found no default on the part of Defendant No. 2 regarding the payment of costs, as the plaintiff's counsel had refused to accept them.

Conclusion

Finding no "patent perversity or gross illegality" in the trial court's orders, the High Court declined to exercise its supervisory jurisdiction under Article 227 of the Constitution. The petition was dismissed, upholding the trial court's decision to accept the written statements of both defendants.

The judgment clarifies the application of the Supreme Court's COVID limitation orders for calculating the time limit under Order 8 Rule 1 CPC and reaffirms that a party can waive a statutory right that accrues to them due to the opponent's default, even if the underlying provision is mandatory.