JUXTAPOSITIONING RULE 1 ORDER 8 WITH ACCEPTANCE OF BELATED WRITTEN STATEMENT A COMPARATIVE CASE ANALYSIS OF Kailash v. Nankhu AND Mohommed Yusuf v. Faij Mohommad

This article was written by Anisha Jhawar, a student of Institute of Law Nirma University. 

JUXTAPOSITIONING RULE 1 ORDER 8 WITH ACCEPTANCE OF BELATED WRITTEN STATEMENT A COMPARATIVE CASE ANALYSIS OF Kailash v. Nankhu[1] AND Mohommed Yusuf v. Faij Mohommad[2]

EXECUTIVE SUMMARY

The time limit for filing Written Statement by the defendant is thirty days as has been stated in Rule 1 Order 8. However, the law makers had bore in mind that the limit needs to have an extendable ceiling too. Therefore, they brought up the limit of ninety days time period in totality. Thus, to construe it in strict sense, the language of the provision has been framed in such a manner so as to curb the lagging of cases due to laxity and gross negligence on part of defendant. The moot question that arises is whether to construe the language of Rule in light of mandatory or directory provision. However, it is also noteworthy to mention that Rule 1 Order 8 cannot be read in oblivion to Rule 10 Order 8. Rule 10 grants power upon court to admit the Written Statement even after expiry of ninety days or pass any other order which it may deem fit. The author seeks to bring in light a comparative analysis in furtherance of moot question throughout this article.

STATEMENT OF PROBLEM

The statement of problem pertains to the Amendment Act, 2002 wherein the ninety days time limit has been set as the outer limit for filing of Written Statement by the defendant. It is a general notion that the intent of the legislators is to be construed from the text written in the provision. With respect to Rule 1 Order 8, the language of the provision appears to impose a mandate upon the parties to file the written statement within the prescribed time limit. Furthermore, it is the role of judiciary to ascertain and assign meaning to what the legislators intend. Thus, it is quite a matter of problem and so the statement of problem for this concerned article that whether the said provision is mandatory or directory in nature. This statement of problem will be dealt by way of comparative case analysis of case laws decided by the Hon’ble Apex Court of India and precedents set thenceforth.

CAUSES OF PROBLEM

The amendment was brought in furtherance of law commission reports. The Cause and Object for enacting the same were:

• That fair trial is conducted in accordance to the Principles of Natural Justice
• Such an amendment would expedite the trial and disposal of cases so that justice is not delayed. Rather, the litigants get justice without much delay.
• To simplify the procedure rather than complicating. This ultimately targets the poorer sections of the community who cannot even hire a pleader to defend their sides.

Another cause of problem is none other than the language of the provision. Had the legislators cleared the meaning assigned thereto, such issue would not have arisen. And when judiciary goes on to assign the meaning to the provision according to the legislative intent, the subjectivity of the judicial officers creeps in. While one person may construe it as mandatory by virtue of Strict Interpretation Principle, the other would regard it as directory by virtue of Principle of Liberal Construction.

The Principle of Strict Interpretation speaks that whatever is written in the provision is to be taken by the literal interpretation and the meanings assigned to the words have their dictionary connotations.[4]

The Principle of Liberal Construction talks that the interpretation of statute is to be construed in beneficial sense, in a reasonable and fair manner so as to implement the object, purpose and intent of legislators.[5]

EXORDIUM OF RULE 1 ORDER 8

Rule 1 Order 8 states the time limit for filing written statement by the defendant. The initial time limit has been set for thirty days. However, the outer limit for filing of written statement is set for ninety days. There are few important elements inscribed under this provision which have been penned down:

• It mandates defendant to file the written statement within thirty days from the date of service of summons. The time period is extendable up to ninety days; this period includes the period of thirty days.
• This provision casts an obligation upon the party and not concerns the power of the court. Furthermore, it does not bar the power of the court to take the written statement on record.
• The nature of this provision is procedural, i.e., it does not create any substantive right. The object of the procedural law is to advance justice. Furthermore, in adversarial system, no party should be barred from presenting his defence.
• The provision is inscribed with the intention to curb the dilatory tactics and mischief adopted by the unscrupulous defendants that results in the serious inconvenience caused to the other party as well as to the courts.

Rule 1 Order 8 cannot be read in oblivion to Rule 10 Order 8 where in latter, the power is granted upon courts to accept the written statement beyond the period of ninety days or pronounce any other order as it may deem fit.

DECISION CRITERIA: COMPARISON BETWEEN RATIO DECIDENDI OF BOTH CASES

While one case selected is Kailash v. Nankhu[6] wherein the Hon’ble Apex Court has given detailed reasoning to the said provision. This case has been referred by around 250 plus cases. The other case opposite to this is Mohommed Yusuf v. Faij Mohommad[7]. The latter has been referred by more than half a century cases.

As we go on for a comparative case analysis of the two cases, it is highly irrelevant to discuss the facts of each of the cases. This is because no two cases can be compared on the basis of facts. The point of comparison lies in the manner the law is applied to the facts and the meaning assigned by the judiciary thereto.

In Kailash v. Nankhu[8], the court has interpreted that the time limit attached to Rule 1 Order 8 is kept so as to expedite and not scuttle the hearing. It is not an embargoing upon the powers of the court but acts as a disability upon the defendant. The language of the provision in a plain reading may be construed as mandatory but it has to be read as directory by virtue of it being a procedural provision. This case thus overrules the reasoning stated in Dr. J. J. Merchant & Ors. V. Shrinath Chaturvedi[9] wherein the court has stated that the provision is a mandatory provision and is to be strictly adhered to.

However with the ruling of Nankhu case, the power of the courts to accept belated statement is not completely taken away. In ordinary course of business, the time scheduled is to be adhered to and only in exceptional circumstances the court may accept the belated written statement along with an application for condonation of delay in written form. The scheduled time period begins from the date of service of summons to the defendant.

It is noteworthy to mention that while accepting belated written statements, there is no strait jacket formula. Thence, it depends on the factual situation and the discretion of the court to accept the same.

In latter case, the same court has pronounced that this precedent is no authority to accept belated written statements. By this statement, the court meant that the belated written statements are not being accepted every time and the scheduled time mentioned in the provision prevails first. The party cannot misuse the ratio decidendi of Kailash v. Nankhu[10] and compel the court to accept the belated written statement even when there are no reasons attached with same.

Comparing the ratio decidendi of both the cases, it is evident that the ruling of Kailash v. Nankhu[11] remains in existence as a precedent and reasons attached in latter is not contrary to the set precedent.

It has been rightly construed in Kailash v. Nankhu[12] and the ruling has been further carried on in Mohommed Yusuf v. Faij Mohommad[13] that the schedule time period is to be adhered to by the defendant and the acceptance of belated written statement depends upon the satisfaction of the court based upon the circumstances that prevail. Furthermore, the outer limit of ninety days includes the initial period of thirty days as well.

IMPLEMENTATION, JUSTIFICATION AND CONCLUSION

While having considered the purpose and object behind enacting Rule 1 Order 8, it is justified that the provision is to be construed as directory in nature. This is for the reasons that it would attract grave injustice in cases where the circumstances were beyond the control and no fault had been committed on behalf of parties. However, it is not an absolute liberty for the parties because ultimately it is the court to decide upon the reasons provided for admissibility of belated written statements. In general notion, the time schedule prescribed under the provision has to be strictly complied with save in exceptionally rare circumstances. The justification is two-fold:

• First, to deter the defendants from seeking extension due to his own negligence and laxity.
• Second, for compensating plaintiff for the delay caused.

This provision is more of procedural hence does not create any substantive right. The language of the provision is carved out to debar the respondent from placing his version of story in every possible circumstance.

However, it is not meant in terms of penal enactment. Anything that is too technical in its construction leaves no room for any interpretation. Therefore, the interpretation of the provision is meant to further the justice.[14]

[1] (2005) 4 SCC 480: AIR 2005 SC 2441

[2] Civil Appeal No. 7208 of 2008: S.L.P.(C) No. 3311/2008

[3] 14bbl006, Institute of Law Nirma University

[4] http://legal-dictionary.thefreedictionary.com/strict+construction, (last visited Aug 12, 2016)

[5] http://legal-dictionary.thefreedictionary.com/construction, (last visited Aug 12, 2016)

[6] (2005) 4 SCC 480: AIR 2005 SC 2441

[7] Civil Appeal No. 7208 of 2008: S.L.P.(C) No. 3311/2008

[8] Ibid 3

[9] Civil Appeal No. 7975 of 2001

[10] Ibid 6

[11] Ibid 7

[12] Ibid 8

[13] Id. at 4

[14] C K TAKWANI, CIVIL PROCEDURE CODE, EASTERN BOOK COMPANY (2015)