- In Rajendrabhai Maganbhai Koli vs Shantaben Maganbhai Koli the Hon’ble Gujarat HC has held that the time limit for the filing of the written statement that is provided under Order VIII Rule 1 is directory and not mandatory. But the Court also held that the same discretion has to be exercised sparingly and not as a matter of routine.
- In the instant case, the petitioner had filed an application praying for setting aside the order of the Additional Civil Judge, Bordeli and the ADJ, Chhotaudepur, which stopped the petitioner from filing a ws after the time provided in order VIII had expired. The petitioner had been duly served with the summons but did not file the ws within time. The ADJ held that the filing of ws beyond 120 days was not permissible.
- The petitioner, in his appeal, relied upon the decision of the Hon’ble SC in Salem Advocate Bar Association, Tamil Nadu vs. Union of India where the Apex Court had held that the period of 120 days for the filing of ws was directory and not mandatory. The plaintiff also contended that since the trial had not commenced, the delayed filing of ws would not jeopardise the rights of the plaintiffs. It was also contended that due to the pandemic and the resultant restrictions, the ws could not be filed within the accorded time.
- The HC, while noting that the word ‘shall’ that has been used in order VIII rule 1 indicates its mandatory nature, however, the context of the provision indicates that the provision is directory and not mandatory. The Court also held that the same has been confirmed by the Apex Court in the Salem Advocate case.
- It was also held that it is a well established principle of law that the objective of the rules of procedure is to advance the cause of justice and not defeat it.
- The Court also harmoniously interpreted Order VIII rules 1 and 10, and held that a combined reading of both these provisions shows that though the Courts have been granted the power under rule 10 to either pronounce judgement or to pass any such order as it thinks fit, there is nothing in the said rule which states that the court cannot extend the time for filing of the ws in the interests of justice.
- However, the Court also held that this discretion of the Court has to be exercised sparingly and in extremely hard cases, and not as a matter of routine.
- Thus, the writ petition was allowed and the plaintiff was also asked to pay the cost of Rs.10,000 in the trial Court.
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