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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 65 OF 2014 [Arising out of Special Leave Petition (Civil)  

No.5951 of 2011]

SANDEEP THAPAR ...APPELLANT

VERSUS

SME TECHNOLOGIES PRIVATE LIMITED ...RESPONDENTS

ORDER  

1. Leave granted.

2. This  appeal  has  been  filed  impugning  the  

judgment  and  order  dated  12th November,  2010  in  

FAO(OS) NO.607 of 2010, whereby the Division Bench  

of the Delhi High Court dismissed the appeal filed  

by the appellant in I.A. NO.13902 of 2008 filed  

under Order VIII rule 1 praying for extension of  

time for filing written statement by the defendant  

i.e. the appellant herein till I.A. No. 11803 of  

2008 filed under Order I rule 10 to implead Mr.  

Sharad Maheshwari as plaintiff. The aforesaid Mr.  

Sharad Maheshwari is the Managing Director of the  

plaintiff Company who is privy to the entire cause  

of  action  of  the  suit  filed  for  recovery  of  

Rs.39.90  lakhs  based  on  alleged  oral  

agreement/understanding.  The applications filed by  

the appellant were dismissed by the learned Single  

Judge of the High Court on 3rd August, 2010.   

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3. The aforesaid order was challenged before the  

Division Bench. The Division Bench after hearing  

the counsel for the parties has observed that the  

learned single judge has correctly held that it is  

not necessary to implead Mr. Sharad Maheshwari as  

the plaintiff as the company being a legal entity  

is entitled to file a suit in its own name through  

an authorized representative.  It is also observed  

that it is for the plaintiff to prove its case  

during the trial.  Therefore, non impleadment of  

Mr. Sharad Maheshwari will have consequences only  

for the plaintiff and not for the appellant. The  

plea  of  the  appellant  that  since  Mr.  Sharad  

Maheshwari had not filed his affidavit, despite the  

entire  suit  being  based  on  an  oral  agreement  

alleged  to  have  been  entered  into  between  the  

appellant and Mr. Maheshwari, in case the appellant  

was  to  file  his  written  statement  that  would  

disclose  his  defence,  has  been  rejected  by  the  

Division Bench.   

4. The High Court was of the opinion that even if  

Mr. Sharad Maheshwari is impleaded and had filed an  

affidavit, the averments in the plaint could not  

have been changed.  In other words,  the  character  

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of the plaint, the pleadings contained therein and  

the relief claimed would remain the same.

5. The application of the appellant for seeking  

extension in time for filing the written statement  

has been rejected with the observation that that  

Order VIII Rule 1 CPC is mandatory and the Court  

cannot permit filing of a written statement beyond  

the 30 days from the date of service of summons.  

At best, the Court has power to permit a period of  

further 60 days from the date of service of summons  

upon the defendant to file the written statement.  

But this has to be done for reasons to be recorded  

in writing.  Since the appellant herein has filed  

the application beyond the period of 30 days + 60  

days, it was not permissible for the Court to allow  

the appellant to file the written statement.   

6. Learned  counsel  for  the  appellant  has  

submitted that undoubtedly the limit under Order  

VIII rule 1 has to be observed, but in exceptional  

circumstances in order to ensure that the injustice  

is  not  done,  the  Court  will  have  the  power  to  

permit the defendant to file the written statement.  

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7. We have considered the submission made by the  

learned counsel.  In our opinion, the submission  

made by the learned counsel is well founded in view  

of the observations made by this Court in Kailash  

versus Nanhku and others reported in (2005) 4 SCC  

480], wherein this Court has observed as follows:

46. We sum up and briefly state our  conclusions as under:-  

(i) ....

(ii) ....

(iii) ....

(iv) The purpose of providing the time  schedule  for  filing  the  written  statement under Order VIII, Rule 1 of  CPC is to expedite and not to scuttle  the hearing.  The provision spells out a  disability on the defendant.  It does  not impose an embargo on the power of  the Court to extend the time.  Though,  the language of the proviso to Rule 1 of  Order  VIII  of  the  CPC  is  couched  in  negative form, it does not specify any  penal consequences flowing from the non- compliance.  The provision being in the  domain of the Procedural Law, it has to  be held directory and not mandatory. The  power of the Court to extend time for  filing the written statement beyond the  time  schedule  provided  by  Order  VIII,  Rule  1  of  the  CPC  is  not  completely  taken away.

(v) Though Order VIII, Rule 1 of the  CPC  is  a  part  of  Procedural  Law  and  hence  directory,  keeping  in  view  the  need  for  expeditious  trial  of  civil  causes which persuaded the Parliament to  enact the provision in its present form,  it  is  held that ordinarily the  

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time schedule contained in the provision  is  to  be  followed  as  a  rule  and  departure therefrom would be by way of  exception.  A prayer for extension of  time made by the defendant shall not be  granted just as a matter of routine and  merely  for  asking,  more  so  when  the  period  of  90  days  has  expired.  Extension of time may be allowed by way  of  an  exception,  for  reasons  to  be  assigned by the defendant and also be  placed on record in writing, howsoever  briefly,  by  the  Court  on  its  being  satisfied.   Extension  of  time  may  be  allowed if it was needed to be given for  the circumstances which are exceptional,  occasioned by reasons beyond the control  of  the  defendant  and  grave  injustice  would be occasioned if the time was not  extended.   Costs  may  be  imposed  and  affidavit or documents in support of the  grounds  pleaded  by  the  defendant  for  extension  of  time  may  be  demanded,  depending on the facts and circumstances  of a given case.”

8. We are satisfied that in the circumstances of  

this case, the High Court ought to have permitted  

the appellant to file written statement, beyond the  

period prescribed in Order VIII rule 1, given the  

facts and circumstances of this case.  

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9. In view of the above, the appeal is allowed.  

The  appellant  is  permitted  to  file  the  written  

statement within a period of two weeks from today  

on payment of Rs.50,000/- (Rupees fifty thousand)  

as cost.  

....................,J. (SURINDER SINGH NIJJAR)

...............................,J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI JANUARY 02, 2014