High Court · 2025

4. Learned counsel for revisionist/plaintiff submits that in the said Suit, notices were issued on 03.03.2020 whereafter an ex parte interim injunction was also granted to the revisionist/plaintiff and vide order dated 22.03.2021, proceedings were directed to be continued ex parte. Subsequently, the defendants put in appearance on 04.01.2023 along with an application for recall of the ex parte order. The said Application was allowed on a cost of Rs.200/- by means of order dated 25.01.2023 fixing 24.02.2023 as the next date for filing of written statement and framing of issues.

5. It is submitted that instead of filing written statement on next date fixed for the said purpose, defendants filed an Application for recall of temporary injunction on the said date and even thereafter failed to file their written statement on 29 different dates fixed in the case and in the meantime their application for recall of temporary injunction was also rejected by means of order dated 30.05.2024.

6. It is submitted that in view of inordinate delay on part of the defendants in filing of written statement, the revisionist/plaintiff filed an Application under Order VIII Rule 10 of the Code on

11.07.2024, whereafter written statement was filed on

09.10.2024 without any application for condonation of delay, extension of time, and even permission for taking written statement on record but by means of impugned order, delay in filing written statement has been impliedly condoned without adverting to specific conditions enumerated in Order VIII Rule 10 of the Code. It is submitted that revisionist/plaintiff is an aged lady and is being denied her right of getting speedy justice. It is also submitted that in view of inordinate delay in filing written statement, it was incumbent upon the trial court to have indicated reasons for condoning delay in filing written statement but the impugned order has been passed in a cursory and mechanical manner. Learned counsel for petitioner has placed reliance on the following decisions of Hon'ble the Supreme Court:- (1) Salem Advocate Bar Association, T.N. v. Union of India, reported in (2005) 6 SCC 344; and (2) Atcom Technologies Ltd. v. Company and others, reported in (2018) 6 SCC 639. Y.A. Chunawala and

7. Learned counsel appearing on behalf of opposite parties/defendants has refuted submissions advanced by learned counsel for revisionist with submission that the provisions of Order VIII Rule 10 of the Code are merely procedural in nature and do not hamper the right of defendants for a hearing on merits. It is further submitted that in fact there is no delay in filing written statement since defendants appeared as soon as copies of the plaint were served upon them on 19.09.2024. It is submitted that since an ex parte interim injunction had already been granted, which was affecting the defendants, they thought it proper first to file an application seeking recall of said temporary injunction and thereafter the written statement was filed without any further delay. It is also submitted that cause for delay has already been indicated in the subsequent Application dated 24.01.2025. Learned counsel for defendants has placed reliance on the following decisions of Hon'ble the Supreme Court:- :- (1) Bharat Kalra v. Raj Kishan Chabra, reported in 2022 LiveLaw (SC) 465; and (2) Shoraj Singh. v. Charan Singh, Civil Appeal No.6304 of 2021 decided on 08.10.2021.

8. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, the factual aspects as indicated herein above are undisputed.

9. The provisions of Order VIII Rule 10 of the Code pertains to the procedure required to be adopted when a party fails to present written statement called for by the court and specifically provides that in case of failure to file written statement within time-frame stipulated, the court is entitled to pronounce judgment against such a party or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment, a decree shall be drawn.

10. Provisions of Order VIII Rule 10 of the Code has been considered by Hon'ble the Supreme Court in Salem Advocate Bar Association(Supra) noticing the fact that rigour of the provision as introduced by Act no.46 of 1999 has been reduced by the Amending Act no.22 of 2022 which enable the court to extent time for filing written statement, on recording sufficient reason therefore but the extension can be maximum of ninety days. The question decided therein was whether the court had any power or jurisdiction to extend time beyond ninety days. Subsequently after discussion, it has been held that the provisions of Order VIII Rule 10 of the Code cannot be held to be mandatory and are in fact only directory and the court has ample and wide powers to grant permission to file written statement even beyond the time stipulated in the said provision.

11. At the same time, it was also held that the order extending time to file written statement cannot be made in a routine manner and can be extended only in exceptionally hard cases. It has also been held that extension of such time cannot be in a manner which stultifies the very provisions of Order 8 Rule 10 of the Code.

12. In Atcom Technologies Ltd.(supra), aforesaid reasoning has been followed that the provisions of Order 8 Rule 10 of the Code are merely procedural in nature and not mandatory. However, the aspect that such a delay can be condoned only for valid reasons to be recorded has also been reiterated.

13. In the judgment relied upon by opposite parties while considering aforesaid judgment in Salem Advocate Bar Association(Supra), it has been held that the period of ninety days for filing of written statement is merely directory and would be mandatory only in the case of Commercial Courts under the Commercial Court Act, 2015.

14. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that the ex parte order was recalled by the trial court on 25.01.2023 on a cost of Rs.200/- whereafter 24.02.2023 was the next date fixed for filing of written statement but instead of filing written statement, the defendants chose to file an Application for recall of ex parte interim injunction. Written statement has thereafter been filed 09.10.2024 after Application under Order VIII Rule 10 of the Code was filed by the plaintiff.

15. Although it has been submitted by learned counsel for the revisionist that the said written statement was filed without any proper application for condonation of delay or even extension of time, since the said written statement is not on record, the said aspect is not being adverted to particularly in view of the subsequent Application preferred by defendants dated

24.01.2025 in which explanation for delay in filing written statement has been indicated with a prayer for taking the written statement on record.

16. Even otherwise, in view of provisions of Order VIII of the Code, in the considered opinion of this Court, the trial court is within its jurisdiction to condone delay in filing written statement even without any such specific application for the same since such a right is inherent in the trial court in terms of provisions of Order VIII Rule 1 read with Order VIII Rule 10 of the Code as also enunciated upon by Hon'ble the Supreme Court in Salem Advocate Bar Association(Supra).

17. The trial court while passing impugned order dated

03.02.2025 has condoned such delay and taken written statement on record primarily on ground that delay occasioned in filing written statement can very well be compensated by costs and that an opportunity of hearing on merits is not required to be shut out.

18. In view of fact that provisions of Order VIII Rule 10 of the Code have specifically been held to be directory and not mandatory and the aspect that the written statement was thereafter filed within a period of one and a half years from the date, the application for recall of ex parte hearing was allowed as well as the aspect that an application for recall of ex parte interim injunction was also filed and decided in the meantime, it cannot be said that there was any deliberate intention of defendants in delaying filing of written statement. This Court is in agreement with the reasoning indicated in impugned order that the purpose of Order VIII Rule 10 of the Code is not to shut out hearing but on the contrary such proceedings as Suits, are required to be decided on merits instead of on technicalities particularly when there is no inordinate delay in appearance of defendants and in filing of written statement.

19. In Atcom Technologies Ltd.(supra), the order affirming rejection of written statement was on ground that delay was of more than five years which was abnormal and no proper or satisfactory explanation had been furnished for such delay.

20. In the present case, Application dated 24.01.2025 submitted by defendants clearly indicates and elaborates the conditions under which written statement could not be filed within the stipulated time.

21. Although the said Application indicates reasons, the same do not find any mention in the impugned order, which in considered opinion of this Court was required to be alluded to in the impugned order while condoning delay.

22. In view of discussions made herein above, the impugned order dated 03.02.2025 does not require any interference.

23. The revision therefore fails and is accordingly dismissed. The parties to bear their own costs. Order Date :- 12.3.2025 kvg/- GIREESAN KV High Court of Judicature at Allahabad, Lucknow Bench

4. Learned counsel for revisionist/plaintiff submits that in the said Suit, notices were issued on 03.03.2020 whereafter an ex parte interim injunction was also granted to the revisionist/plaintiff and vide order dated 22.03.2021, proceedings were directed to be continued ex parte. Subsequently, the defendants put in appearance on 04.01.2023 along with an application for recall of the ex parte order. The said Application was allowed on a cost of Rs.200/- by means of order dated 25.01.2023 fixing 24.02.2023 as the next date for filing of written statement and framing of issues.

5. It is submitted that instead of filing written statement on next date fixed for the said purpose, defendants filed an Application for recall of temporary injunction on the said date and even thereafter failed to file their written statement on 29 different dates fixed in the case and in the meantime their application for recall of temporary injunction was also rejected by means of order dated 30.05.2024.

6. It is submitted that in view of inordinate delay on part of the defendants in filing of written statement, the revisionist/plaintiff filed an Application under Order VIII Rule 10 of the Code on

11.07.2024, whereafter written statement was filed on

09.10.2024 without any application for condonation of delay, extension of time, and even permission for taking written statement on record but by means of impugned order, delay in filing written statement has been impliedly condoned without adverting to specific conditions enumerated in Order VIII Rule 10 of the Code. It is submitted that revisionist/plaintiff is an aged lady and is being denied her right of getting speedy justice. It is also submitted that in view of inordinate delay in filing written statement, it was incumbent upon the trial court to have indicated reasons for condoning delay in filing written statement but the impugned order has been passed in a cursory and mechanical manner. Learned counsel for petitioner has placed reliance on the following decisions of Hon'ble the Supreme Court:- (1) Salem Advocate Bar Association, T.N. v. Union of India, reported in (2005) 6 SCC 344; and (2) Atcom Technologies Ltd. v. Company and others, reported in (2018) 6 SCC 639. Y.A. Chunawala and

7. Learned counsel appearing on behalf of opposite parties/defendants has refuted submissions advanced by learned counsel for revisionist with submission that the provisions of Order VIII Rule 10 of the Code are merely procedural in nature and do not hamper the right of defendants for a hearing on merits. It is further submitted that in fact there is no delay in filing written statement since defendants appeared as soon as copies of the plaint were served upon them on 19.09.2024. It is submitted that since an ex parte interim injunction had already been granted, which was affecting the defendants, they thought it proper first to file an application seeking recall of said temporary injunction and thereafter the written statement was filed without any further delay. It is also submitted that cause for delay has already been indicated in the subsequent Application dated 24.01.2025. Learned counsel for defendants has placed reliance on the following decisions of Hon'ble the Supreme Court:- :- (1) Bharat Kalra v. Raj Kishan Chabra, reported in 2022 LiveLaw (SC) 465; and (2) Shoraj Singh. v. Charan Singh, Civil Appeal No.6304 of 2021 decided on 08.10.2021.

8. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, the factual aspects as indicated herein above are undisputed.

9. The provisions of Order VIII Rule 10 of the Code pertains to the procedure required to be adopted when a party fails to present written statement called for by the court and specifically provides that in case of failure to file written statement within time-frame stipulated, the court is entitled to pronounce judgment against such a party or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment, a decree shall be drawn.

10. Provisions of Order VIII Rule 10 of the Code has been considered by Hon'ble the Supreme Court in Salem Advocate Bar Association(Supra) noticing the fact that rigour of the provision as introduced by Act no.46 of 1999 has been reduced by the Amending Act no.22 of 2022 which enable the court to extent time for filing written statement, on recording sufficient reason therefore but the extension can be maximum of ninety days. The question decided therein was whether the court had any power or jurisdiction to extend time beyond ninety days. Subsequently after discussion, it has been held that the provisions of Order VIII Rule 10 of the Code cannot be held to be mandatory and are in fact only directory and the court has ample and wide powers to grant permission to file written statement even beyond the time stipulated in the said provision.

11. At the same time, it was also held that the order extending time to file written statement cannot be made in a routine manner and can be extended only in exceptionally hard cases. It has also been held that extension of such time cannot be in a manner which stultifies the very provisions of Order 8 Rule 10 of the Code.

12. In Atcom Technologies Ltd.(supra), aforesaid reasoning has been followed that the provisions of Order 8 Rule 10 of the Code are merely procedural in nature and not mandatory. However, the aspect that such a delay can be condoned only for valid reasons to be recorded has also been reiterated.

13. In the judgment relied upon by opposite parties while considering aforesaid judgment in Salem Advocate Bar Association(Supra), it has been held that the period of ninety days for filing of written statement is merely directory and would be mandatory only in the case of Commercial Courts under the Commercial Court Act, 2015.

14. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that the ex parte order was recalled by the trial court on 25.01.2023 on a cost of Rs.200/- whereafter 24.02.2023 was the next date fixed for filing of written statement but instead of filing written statement, the defendants chose to file an Application for recall of ex parte interim injunction. Written statement has thereafter been filed 09.10.2024 after Application under Order VIII Rule 10 of the Code was filed by the plaintiff.

15. Although it has been submitted by learned counsel for the revisionist that the said written statement was filed without any proper application for condonation of delay or even extension of time, since the said written statement is not on record, the said aspect is not being adverted to particularly in view of the subsequent Application preferred by defendants dated

24.01.2025 in which explanation for delay in filing written statement has been indicated with a prayer for taking the written statement on record.

16. Even otherwise, in view of provisions of Order VIII of the Code, in the considered opinion of this Court, the trial court is within its jurisdiction to condone delay in filing written statement even without any such specific application for the same since such a right is inherent in the trial court in terms of provisions of Order VIII Rule 1 read with Order VIII Rule 10 of the Code as also enunciated upon by Hon'ble the Supreme Court in Salem Advocate Bar Association(Supra).

17. The trial court while passing impugned order dated

03.02.2025 has condoned such delay and taken written statement on record primarily on ground that delay occasioned in filing written statement can very well be compensated by costs and that an opportunity of hearing on merits is not required to be shut out.

18. In view of fact that provisions of Order VIII Rule 10 of the Code have specifically been held to be directory and not mandatory and the aspect that the written statement was thereafter filed within a period of one and a half years from the date, the application for recall of ex parte hearing was allowed as well as the aspect that an application for recall of ex parte interim injunction was also filed and decided in the meantime, it cannot be said that there was any deliberate intention of defendants in delaying filing of written statement. This Court is in agreement with the reasoning indicated in impugned order that the purpose of Order VIII Rule 10 of the Code is not to shut out hearing but on the contrary such proceedings as Suits, are required to be decided on merits instead of on technicalities particularly when there is no inordinate delay in appearance of defendants and in filing of written statement.

19. In Atcom Technologies Ltd.(supra), the order affirming rejection of written statement was on ground that delay was of more than five years which was abnormal and no proper or satisfactory explanation had been furnished for such delay.

20. In the present case, Application dated 24.01.2025 submitted by defendants clearly indicates and elaborates the conditions under which written statement could not be filed within the stipulated time.

21. Although the said Application indicates reasons, the same do not find any mention in the impugned order, which in considered opinion of this Court was required to be alluded to in the impugned order while condoning delay.

22. In view of discussions made herein above, the impugned order dated 03.02.2025 does not require any interference.

23. The revision therefore fails and is accordingly dismissed. The parties to bear their own costs. Order Date :- 12.3.2025 kvg/- GIREESAN KV High Court of Judicature at Allahabad, Lucknow Bench