Pendency of an application for rejection of plaint does not operate as stay to filing of written statement
Shyam Sunder Vs Shikha Arora
About/from the judgment:
A perusal of the impugned order shows that the time for filing of the written statement has been granted without taking into consideration the provisions of Order VIII CPC. Under the provisions of Order VIII CPC, non-filing of the written statement within time entails consequences in law. The pendency of an application under Order VII Rule 11 CPC, does not operate as an automatic stay upon filing of the written statement. In fact, the settled legal position is that the written statement should be filed irrespective of an application under Order VII Rule 11 CPC being pending. This is clear from the judgment of the Supreme Court dated 4th July 2016, in R.K. Roja v. U.S. Rayadu and Ors., MANU/SC/0751/2016 : AIR 2016 SC 3282) where the Supreme Court held:
"7. In Saleem Bhai case (supra), this Court has also held that..."A direction to file the written statement without deciding the application under Order VII Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction of the trial court." However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 of the Code of Civil Procedure cannot be made as a ruse for retrieving the lost opportunity to file the written statement."
The Supreme Court, has recently reiterated this principle in judgment dated 18th September 2020, titled Sagufa Ahmed and ors. v. Upper Assam Plywood Products Pvt. Ltd. (Civil Appeal No. 3007-08/2020). The Court was considering the impact of the pandemic and the automatic extension of limitation and the manner in which the same is to be applied. The Supreme Court held:
"19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only "the period of limitation" and not the period up to which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them."
9. The provisions of Order VIII CPC provide a complete timeline and scheme for filing of the written statement. The said scheme would have to be followed. There are certain conditions that have to be satisfied for a party to seek condonation of delay in filing the written statement. The non-filing of the written statement within the time prescribed has consequences in law for parties. The grant of a further extension of time, in a casual manner simply upon an oral request without an application thereto being filed and explaining the delay in filing the written statement, would be contrary to law. Even the lockdown due to the pandemic can only extend the original period of limitation and not the period up to which delay can be condoned.
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