Sundar Lal Verma vs.

Ranbir Rana
A final draft submitted in fulfillment of the course CPC and Law of Limitation, Semester 5th
during the academic year 2018-19.

Submitted To: Submitted By:

Faculty, CPC

Subject: CPC and Law of Limitation

 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitle
“SUNDAR LAL VERMA VS. RANBIR RANA” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Dr. Meeta Mohini. I have
not submitted this work elsewhere for any other degree or diploma. I am fully responsible for
the contents of my Project Report.

(Signature of the Candidate)

SUMIT KUMAR
Chanakya National Law University, Patna

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 ACKNOWLEDGEMENT

I am overwhelmed in all humbleness and gratefulness to acknowledge from the

bottom of my heart to all those who have helped me to put these ideas, well above
the level of simplicity and into something concrete effectively and moreover on
time.

I would like to take this opportunity to thank my faculty Dr. Meeta Mohini, for
his invaluable support, guidance and advice. His assignment of such a relevant
topic made me work towards knowing the subject with a great interest and
enthusiasm.

I owe the present accomplishment of my project to my friends, who helped me

immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank
the library staff for working long hours to facilitate us with required materials
going a long way in quenching our thirst for education. I would also like to extend
my gratitude to my parents and all those unseen hands who helped me out at every
stage of my project.

SUMIT KUMAR

Semester-5.

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 RESEARCH METHODOLOGY

Aims & Objectives

The researcher will do this research to

 To understand some of the provision of Order VIII.

 To understand importance of written statement in a suit.

Research Methodology

The researcher will emphasize and use the doctrinal method for this project topic. The
researcher will be collecting valuable data from library which includes the written works and
from the field. All these data will help the researcher to solve his research problem. All the
books, journals, articles published in newspapers, bodies, reports. The researcher will make
use of doctrinal. The doctrinal process includes the use of literary source.

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 Contents
DECLARATION BY THE CANDIDATE ................................................................................ i

ACKNOWLEDGEMENT .........................................................................................................ii

RESEARCH METHODOLOGY............................................................................................. iii

Aims & Objectives ............................................................................................................... iii

Hypothesis............................................................................................................................ iii

Research Methodology ........................................................................................................ iii

1. Introduction ........................................................................................................................ 1

2. Provisions of CPC .............................................................................................................. 2

3. Facts of the Case ................................................................................................................. 3

4. Arguments Raised............................................................................................................... 4

5. Current Position of the Judgement ..................................................................................... 6

6. Conclusion & Suggestion ................................................................................................... 9

7. Bibliography ..................................................................................................................... 11

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 1. Introduction

Delay in the disposal of cases has been a cause of serious concern for the judiciary and the
legislature alike.1 The Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil
Procedure (Amendment) Act, 2002 (hereinafter referred to as the Amendment Act, 1999 and
the Amendment Act, 2002 respectively), made extensive amendments to the Code of Civil
Procedure, 1908 (hereinafter referred to as the amended Code). The amendments were
considered necessary to tackle the problem of delay in dispensing Civil Justice. In several areas
of Civil Procedure time frames have been enacted. One such area is the completion of pleadings
by the parties to the suit. Amongst the several endeavours made on this front to cut down the
pendency, the story of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (―the Code‖)
is peculiarly illustrious of this concern. Rule 1 of Order VIII of the Code, which prescribes the
limitation period for filing of a written statement by a defendant in a suit, has undergone several
changes since the entry into force of the Code in 1909.2 The said provision has travelled from
being a provision expressly permitting judicial discretion to extend time to one mandating the
defendant to file the written statement with a stipulated time period with a proviso authorizing
extension of time with a negatively-prescribed outer limit.

Sundar Lal Verma vs. Ranbir Rana, deal with question of execution of Order VIII Rule 1 and
10 after the 2002 Amendment. Allahabad High Court held that more than 90 days will not be
provided to defendant for filing written statement. This judgment was heavily criticized by
various stakeholders. These provisions remain in question in various cases. In the end, this case
was overruled by Supreme Court by logical and justifiable remarks.

This paper analyse the facts and judgment of the case and then analyse similar cases where
Order VIII was in question.

1
See for the latest manifestation of this concern, the Law Commission of India 221st Report on ―Need for Speedy
Justice – Some Suggestions― (April 2012), available at www.lawcommissionofindia.nic.in/reports/report221.pdf
which study was taken up by the Law Commission suo motu.
2
The Code entered into force from 1st day of January 1909. See, Section 1(2) of the Code.

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 2. Provisions of CPC

Following provisions of CPC is dealt by the case. Order 8 Rule 1 of the Code of Civil
Procedure reads as under:

Written Statement- The defendant shall within 30 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 summon.

Further Order VIII Rule 10 elaborate:

Procedure when party fails to present written statement called for by court- Where any
party from whom a written statement is required under rule1 fails to present the same within
the time permitted or fixed by the court, as the case may be, the court shall pronounce
judgement against him, or make such order in relation to the suit as it thinks fit and on the
pronouncement of such judgement a decree shall be drawn up.

Section 148. Enlargement of time. Where any period is fixed or granted by the Court for the
doing of any act prescribed or allowed by this code, the Court may, in its discretion, from
time to time, enlarge each period not exceeding thirty days in total, even thought the period
originally fixed or granted may have expired.‖

The power to enlarge time has been conferred upon the courts in respect of acts, where the
time for doing such acts has been granted or fixed by the ―Court. Where the time for doing
of an act is prescribed by the ―Code‖ and not by a ―court‖, the provisions of Section 148 of
the Act have no application. It may be pertinent to mention here that the reference to ―Code‖
in the said section is in the context of the authorization of the doing of the act and not as a
prescription of the time for its doing.

Section 151. Saving of inherent powers of Court. Nothing in this Code shall be deemed to
limit or otherwise affect the inherent power of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the Court.

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 3. Facts of the Case

Notice of this election petition was served upon the first respondent who is the returned
candidate admitedly in the last week of June 2002, as is clear from the contents of an application
(A-8) filed on 4.7.2002 by the said returned candidate seeking six weeks time to file a written
statement. By order dated 4.7.2002 the Court granted one month and no more time to the
respondent No. 1 for filing the written statement.

The written statement is said to have been verified on 25.9.2002 but its copy was not served
upon the election petitioner till 23.1.2003 and the written statement was filed in the Court on
23.1.2003. Learned Counsel for the election petitioner has submited that the written statement
should not be accpeted on record in view of the provision of Order VIII Rule 1 C.P.C. as
amended by the Code of Civil Procedure (Amendment) Act, 2002. Section 9(1) of that
Amendment Act has amended Order VII Rule 1 CPC with effect from 1.7.2002.

For ready reference the said amended provision is reproduced below.

"4. Written statement. The defendant shall, within thirty days from the date of service of
summnos 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 days, 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."

The respondent No. 1 has moved an application dated 31.3.2003 being Misc. Application No.
60603 of 2003 (paper no A-10) purporting to be under Section 151 CPC praying that the delay
in filing written statement be condoned and the written statement be accepted.

"Two questions arise in respect of the preliminary arguments made today. They are as follows:

1. Whether the Court can permitting of a written statement beyond the period of 90 days from
the date of service of summons in violation of Order VIII Rule 1 as it is stands today by
exercising inherent power under Section 151 CPC; and

2. Whether the delay in filing written statement beyond that maximum period prescribed under
Order VIII Rule 1 CPC can be condoned under any other provison of law.

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 4. Arguments Raised and Judgement

So far as the first contention is concerend, although Section 151 CPC states that "nothing
in this Code shall be deemed to limit or otherwise effect" the inherent power of the Court
to make such order as may be necessary for ends of justice but is well-settled that this
inherent power cannot be exercised to override the express prohibition' contained in that code
in this context, following authorities may be seen- Shantaram Tukaran Patil And Anr. vs
Dagubai Tukaram Patil And Ors..3 and B.K. Dutta vs Sm. Nita Madan And Anr4.

In these circumstances after the amendment of Order VIII Rule 1 CPC the Court does not
have any jurisdiction to extend the time for filing written statement beyond maximum
period of 90 days from the date of service of summons and this express prohibition relating
to the period beyond that 90 days cannot be over-ridden by resort to Section 151 CPC.

As already stated the service of notices was enacted in the last week of June, 2002, the
period of 90 days therefore ran out in the last week of Sept. 2002. The submission that
written statement may have been verified before expiry of that 90 days, even it correct, is
irrelevant. The provisions of Order VIM Rule 1 requires filing of written statement and not
verification of the time within the prescribed time. The written statement was filed as stated
above in January 2003 beyond the maximum period of 90 days prescribed and therefore
written statement cannot be taken on record in view of the bar contained under Order VIII
Rule 1 CPC.

This bring us to the second question as to whether in a case where written statement is
actually filed beyond the prescribed period of 90 days, the Court can condone delay in filing
written statement and take the same on record under any other provision of law. Written
Statement is not an appeal or an application or even a suit and therefore Limitation
Act cannot help the Court for condoning the delay

Sri R.K. Jain, Sr. Advocate representating the respondent No. 1 has submitted that Order
VIII Rule 10 C.P.C. as amended by the samE Amendment Act, 2002 does not mandate the

3
AIR 1987 Bom. 1 (2).
4
AIR 1984 Cal. 228 (229)
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Court to necessarily pronounce the judgment against the defendant who has failed to file
written statement within the prescribed time but says that instead of pronouncng judgment
against such defendant, the Court may make such order in relation to the suit as it things
fit. According to Sri Jain these words indicates that the Court has power to condone the
delay and enlarge time forf filing written statement beyond maximum period of 90 days
and to take written statement on record.

Judge was unable to agree with this kind of submission, as it would defeat the entiere
purpose of amendment carried out in the CPC. The amendment is intended to prevent
misuse by unscrupulous defendant of repeatedly taking adjournment, seeking time and
adopting dilatory tactics to the determinent of the plaintiff.

The words which have been referred by Sri Jain in Order VIII Rule 10, to my mind, have
been placed in the States to cover a case where even on the admitted plaint allegation, the
judgmnt cannot be pronounced against a particular defendant because of some legal bar or
lack of essential pleading giving a complete cause of action.

The words relied upon by Sri Jain cannot be interpreted so as to set at naught the obvious
clause brought about under Order VIII Rule 1 by Amending Act, 2002.

The decision of Karnataka High Court in the case of Smt. Savitha Gupta v. Smt. Nagaratha5
reported in AIR 2003 Karnataka High Court has also taken similar view. In these
circumstances, judge was of the view that application seeking condonation of delay
deserves to be rejected and written statement deserves to be struck off the record having
been filed beyond the maximum prescribed period Order accordingly.

5
AIR 2003 Kant 426, 2003 (4) KarLJ 14
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 5. Current Position of the Judgement

A question of the nature of the proviso to Rule 1 of Order VIII first arose before the Hon’ble
Supreme Court in the case of Kailash v. Nanhku and Ors.6 In that case, the appellant was served
with the summons, requiring his appearance before the Court on 06.04.2004. On the request of
the counsel of the appellant on the appointed day, the Court allowed time till 13.05.2004 for
filing the written statement. On the said date, the appellant sought further time on the ground
that copies of several documents were required to be obtained. The Court adjourned the hearing
to 03.07.2004 as between 13.05.2004 to 02.07.2004, the High Court was closed for summer
vacations. Towards the end of the summer vacations, i.e. on 22.06.2004, the nephew of the
appellant's advocate expired. Although the written statement was drafted during the summer
vacations and was kept ready for filing, the same was filed only on 08.07.2004 together with
an application for condonation of delay stating the aforesaid reason. In appeal against the
refusal of the High Court to accept the written statement on the ground of expiry of the
prescribed period of 90 days, the Hon’ble Supreme Court set aside the order of the High Court
and accepted the written statement.

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. 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.

What appears to have weighed the mind of the Court in the Nankhu case was the recording of
specific findings of fact by the lower authorities to the effect that (a) the written statement had
been drafted and kept ready for filing much before the expiry of the limitation period; and (b)
the factor that prevented the defendant’s counsel from filing the written statement was the death
of his nephew. The first points to bonafide of the defendant and the second, that the event that
prevented the written statement from being filed was out of the control of the defendant and
his representatives.

In Rani Kusum v. Kanchan Devi,7 the summons was served upon the defendant on 10.11.2003
and the written statement was filed on 10.07.2004. The plaintiff objected to the acceptance of

6
AIR 2005 SC 2441, (2005) 4 SCC 480.
7
AIR 2005 SC 3304, (2005) 6 SCC 705.

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the written statement on the ground that the same was filed beyond the prescribed period of 90
days and that the court had, as result of the 2002 Amendment, no discretion in the matter. The
High Court, however, accepted the written statement. The Supreme Court upheld the action of
the High Court, based on the following four views: (a) the amendment dealt with and targeted
only the obligation of the defendant and not the power of the courts to accept a written
statement filed beyond the stipulated time in that ―the consequences flowing from non-
extension of time are not specifically provided‖; (b) Order VIII, Rule 1 is a rule of procedure
and is, therefore, the handmaid of justice; (c) India follows the adversarial system; and, (d)
unless compelled by express and specific language of the statute, the courts ought not be
rendered helpless to meet extraordinary situations. The Court reiterating that ―[t]he mortality
of justice at the hands of law troubles a Judge's conscience and points an angry interrogation
at the law reformer‖ took the view that a ―procedural law should not ordinarily be construed
as mandatory‖ and held that the proviso to Rule 1 of Order VIII of the Code was directory.

It appears that the reasoning which was intended to operate as a way out of a rather stringent
and a potentially harsh provision was made the ―ordinary‖ rule for interpreting procedural
statutes by the Court. The procedural laws, on the contrary, represent the guarantee of the
minimum standard of safeguards in the pursuit of a legal remedy, any conduct beneath which
is considered unacceptable, and at times, abhorrent, by the members of the society whose
legislature prescribes that law. Serious difficulties would arise for a judge, particularly from
the subordinate judiciary, who is confronted with a submission to apply the aforesaid
observation in reaching his decision in respect of a provision other than the proviso to Rule 1
of Order VIII of the Code. The only defence against the temptation of following the Supreme
Court would then be the distinction between ―obiter dictum‖ and ―ratio decidendi‖ available
to a properly informed judge or the opposing counsel.8

In R.N. Jadi v. Subhashchandra9, the Supreme Court was once again confronted with a similar
question. In that case also, the Court accepted the written statement after the expiry of the
prescribed period of 90 days. In this case, however, the Court, for the first time, laid the test of
―a clear satisfaction of the justification for granting such extension.‖ Here, the delay

8
See, generally, for the difference between ratio decidendi and obiter dicta, State of Orissa v. Sudhanshu Shekhar
Misra AIR 1968 SC 647; MCD v. Gurnam Kaur AIR 1989 SC 38; Somawati v. State of Punjab AIR 1963 SC
151; T. Govidaraja Mudliar v. State of Tamil Nadu AIR 1973 SC 974; State of U.P. v. Ramchandra Trivedi AIR
1976 SC 2547; Director of Settlements v. M.R. Apparao (2002) 4 SCC 638; Ballabhadas Mathurdas Lakhani v.
Municipal Committee, Malkapur AIR 1970 SC 1002.
9
AIR 2007 SC 2571, (2007) 6 SCC 420.

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occasioned was a delay of merely two days beyond the 90 days’ period. Citing Nankhu for the
proposition that Order VIII, Rule 1 is directory, the Court dismissed the writ appeal as not
maintainable.

In the R. N. Jadi case, Balasubramanyam, J. made some interesting comments (and a possible
clarification) of his reading of Nankhu, to which his Lordship was a party. Retorting tacitly the
observation that ―ordinarily procedural laws cannot be interpreted as mandatory‖, his
Lordship, underlining the desirability of leaving a residuary power with the courts, observed
that ―there could be situations where even a procedural provision could be construed as
mandator. Kailash v. Nankhu is no authority for receiving written statements, after the expiry
of the period permitted by law, in a routine manner.‖ As indicators, where the courts could
exercise the power to grant an extension, the Court pointed out that the power 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.

In Mohammed Yusuf v. Faij Mohammad,10 the summons in respect of a suit for a decree for
permanent injunction with application for temporary injunction was served on 06.07.2002 and
the adjournments were sought and granted from time to time until 31.05.2005, when the
plaintiff applied for pronouncement of judgment in terms of Order VIII Rule 10 of the Code
on the ground of non-filing of the written statement by the defendant. On the said date, no
application for condonation of delay was however filed. The trial court refused to entertain the
written statement and, instead, fixed the matter for recording of evidence in support of
plaintiff’s case. In a writ petition, however, the High Court allowed the petitioner to contest the
suit on merits and accepted his written statement, subject to payment of costs of Rs. 10,000/-.

The Court, referring to the Nankhu case, held that while the said case interpreted the provisions
of the proviso to Order VIII Rule 1 of the Code as directory, this Court, ―in no uncertain terms
stated that defendants may be permitted to [do so] only in exceptional situation‖ and on that
reasoning, set aside the order of the High Court in view of the clear recording of the reasons
against such acceptance by the trial court. In this case, the Court also reiterated the limitation
on the writ jurisdiction of the High Courts under Articles 226/227 of the Constitution

10
2009 (1) SCALE 71 (S.B. Sinha and Cyriac Joseph, JJ.).

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 6. Conclusion & Suggestion

Delay in the disposal of cases has been a cause of serious concern for the judiciary and the
legislature alike. Amongst the several endeavours made on this front to cut down the pendency,
the story of Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (―the Code‖) is
peculiarly illustrious of this concern. Rule 1 of Order VIII of the Code, which prescribes the
limitation period for filing of a written statement by a defendant in a suit, has undergone several
changes since the entry into force of the Code in 1909.The said provision has travelled from
being a provision expressly permitting judicial discretion to extend time to one mandating the
defendant to file the written statement with a stipulated time period with a proviso authorizing
extension of time with a negatively-prescribed outer limit.

Sundar Lal Verma vs. Ranbir Rana, deal with question of execution of Order VIII Rule 1 and
10 after the 2002 Amendment. Allahabad High Court held that more than 90 days will not be
provided to defendant for filing written statement. This judgment was heavily criticized by
various stakeholders. These provisions remain in question in various cases. In the end, this case
was overruled by Supreme Court by logical and justifiable remarks.

After Nankhu, there remains no controversy that the proviso to Rule 1 of Order VIII of te Code
is directory and the time limit of 90 days stipulated therein can be extended.28 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. On a survey of the aforesaid
decisions handed down by the Supreme Court, the following principles appear to emerge:

1. The proviso has an in-built mechanism for the extension of time for sufficient reasons.
Thus, any further extension of time beyond the stipulated time limit of 90 days in the
proviso is permissible only if the Courts is ―clearly satisfied‖ that there exist cogent
reasons that prevented the defendant from filing the written statement;
2. Where the court is satisfied of the cogency of reasons, it must record its satisfaction
each time it extends the time;
3. The time which may then be extended must be reasonable considering all the facts
and circumstances and the reasons cited by the defendant.
4. In order to deter the defendant and with a view to compensating the plaintiff for the
delay, the court may impose costs upon the defendant, which would be payable to the
plaintiff.

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Whether the trial/appellate courts are indeed following these principles is far from clear. The
Nankhu case has often come to being seen as an authority for the proposition that costs may be
imposed in lieu of extension of time. In some cases, it may be observed that the courts have
begun to looking at costs as an effective substitute for the court’s satisfaction of the cogency
of reasons. The undercurrent leading to that attitude is perhaps a tacit consciousness that a
fortuitous circumstance pressed into service and cited as a reason for the delay in filing of the
written statement, is, more often than not, unconnected with the delay.

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 7. Bibliography

Books

1. A.N. Saha, The Code of CivilProcedure, 1908, Ed. 2004, Volume-II, Publisher-
Premier Publishing Company, Allahabad.
2. Arora, O.P., The Code of Civil Procedure, 1908, Ed. 1999. Publisher, Eastern Book
Company, Lucknow.
3. Bakshi, P.M., Supplement to Mulla’s Code of Civil Procedure Ed.14th, 1992
Publisher N.M. Tripathi Private Ltd. Bombay
4. Chitaley. D.V. and S. Appu Rao, AIR Commentaries; The Code of Civil Procedure
Ed.7th, 1963. Publisher. The All India Reporter Ltd.
5. Tondon the Code of Civil Procedure, revised by justice Rajesh Tandon, 26th Ed. 2005
P.271 Allahabad law Agency
Website

1. www.indiancourts.nic.in
2. www.manupatra.com
3. www.supremecourtofindia.nicin
4. www.lawresearch.com
5. www.indiankanoon.com

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