Order 39 and Order 8 Rule 1 and 2 of Civil Procedure Code (CPC),1908

Order 39 and Order 8 Rule 1 and 2 of Civil Procedure Code (CPC),1908

Author: Krishna BhattacharyaKIIT school of law, Bhubaneshwar, India

Order 8 Rule 1 of CPC:

According to Order 8 Rule 1 of CPC and the amendment in Commercial Courts Act 2015, written statement in case of the commercial suit could be filed within 120 days from the date of the issue of summons. Earlier the date of filing was 120 days but parties were allowed to file condonation of delay but in 2016 and amendment was brought in Order 8 Rule 1 of CPC which limited the scope for filing condonation of delay.

In December 2019 the Hon’ble Supreme court of India in the case of M/s SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors. had reiterated the same principle. Justice Kathwalla, “even a literal reading of the amended provisions of Order 8 Rule 1 suggests that not only are penal consequences provided for upon the defendant failing to file its written statement; but the discretion of the Commercial Court/Commercial Division to take on record a written statement thereafter has also been taken away”. 

In the case of Axis Bank Ltd. v. Mira Gehani, 2019 SCC OnLine Bom 358, dated 27-2-2019, it was brought out that according to Bombay High Court (Original Side) Rules, 1980, parties were allowed to file condonation of delay and if accepted then the written statement even after the expiry of 120 days. Justice Kathawalla observed,  “I am concerned with a dispute between 2 special acts, viz. the Bombay High Court (Original Side) Rules and the Commercial Courts Act. … the Commercial Courts Act is a special act promulgated several decades after the Bombay High Court (Original Side) Rules and would trump the provisions of the former in the event of a conflict”. While concluding the discussion on this point, the Court held, “this Court cannot exercise its powers under the Bombay High Court (Original Side) Rules to condone the delay in filing of a written statement over and above the statutorily mandated period of 120 days”.

Another argument which was taken up was that under Order 8 Rule 1 the right of the defendant is extinguished from filing the Written Statement but under Order 8 Rule 9 or 10, the court has the discretion whether to accept late filing or not. In a 2018 amendment, the following clause was added: ” No court shall make an order to extend the time provided under Rule 1 of this Order for the filing of the Written Statement”. This amendment, however, does not apply to non-commercial suits.

Order 8 Rule 2:

According to this rule, it is the duty of the defendant to give all particulars in his defense, which he/she desires to take. If this is not done so, then he/she will not be able to allowed to raise a new plea. The defendant by pleading has to show that suit is not maintainable or that the transaction is either void or voidable on the point of law. It has been held by the Hon’ble Supreme Court in the case of Udhav Singh v Madhav Rao Scindia, AIR 1976 SC 774, that the keywords in Order 8 Rule 2 are ” all such grounds of defense as, if not raised, would be likely to take the opposite party by surprise”. These words denote the broad test for determining whether a particular defense, plea or fact is required to be incorporated in written statements. If the plea or ground of defense raises issues of fact not arising out of the plaint, such plea or ground is likely to take the plaintiff by surprise and is therefore required to be pleaded. If the plea or ground of defense arises an issue arising out of what is alleged or admitted in the plaint or is otherwise apparent from the plaint itself, no question of prejudice or surprise to the plaintiff arises. However, nothing in this rule compels the defendant to plead such a ground, nor debars him from setting up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on the construction of the plaint.

Order 39:

Order 39 deals with temporary injunctions and interlocutory orders.  Injunctions are of two types :

  1. Perpetual- dealt under section 54 to 57 of the Specific Relief Act
  2. Temporary injunction dealt under order 39 of CPC.

 Temporary injunctions can be granted on three grounds which are prima facie case, the balance of convincing and irreparable loss. In the case of Prakash Singh V/s State of Haryana 2002 (4) Civil L.J. 71 (P.H.), it was held that “ Prima facie case does not mean that the plaintiff should have a cent percent case which will in all probability succeed in a trial. Prima facie case means that the contentions which the plaintiff is raising, require consideration in merit and are not liable to be rejected summarily”.

To see the balance of convenience, it is necessary to compare the case of parties, comparative mischief or inconvenience which is likely to sue from withholding the injunction will be grater than which is likely to arrive from granting it.

There are many injuries incapable of being repaired but a court of equity does not regard them as ‘irreparable’. For example, a cause which outrages the feeling or loss of things of sentimental value. On the other hand, there are injuries which in their nature may be repaired but still treated as irreparable. For example, a person who is inflicting or threatening them is insolvent or unable to pay damages. Ordinarily, injury is irreparable when without a fair and reasonable address of Court, it would be a denial of justice.

Temporary Injunctions can be even granted Ex-parte. Usually, at this stage, it is called the interim injunction and when the court hears both the parties it is referred to as the temporary injunction. This is a discretionary power of the court. It is to be noted that order 39 does not specify that a temporary injunction may be granted only in circumstances enumerated in the said order. Therefore, even in the case is not covered under order 39, the court may grant an injunction in the exercise of inherent powers under section 151.

Interlocutory orders are also somewhat similar to temporary injunctions. Interlocutory order only settles intervening matter relating to the cause. Such orders are made to secure some end and purpose necessary and essential to the progress of the case and generally collateral to the issues to be settled by the court in the final judgment.

As an interlocutory application does not encroach upon the merits of the controversy between parties an order pursuant to such applications cannot be regarded as a matter affecting the trial of the suit.

The practice of filling I.As has become a matter of routine for the lawyers and is resorted to many a time to thwart the proceedings in a suit or to evade the compliance of any order passed against such party. There is an umpteen number of cases where unscrupulous litigants take undue advantage by invoking the jurisdiction of the Court by Filing interlocutory applications. This has no time limit therefore the purpose of order 8 gets defeated here.

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