The bench of Justices A. Muhamed Mustaque and Shoba Annamma Eapen observed that the binding judgment is an enunciation of the law, on a point directly and specifically arisen for consideration by the Apex Court.
In this case, The plaintiffs filed a suit for a declaration that the Government Order, ordering the dispossession of the plaintiffs from the suit premises is illegal and for a consequential injunction to restrain the defendants from dispossessing the plaintiffs from the suit property.
An application was filed by the Additional Government Pleader to receive written statement after the condonation of delay of 47 days in filing the written statement.
The plaintiffs raised objections in receiving the written statement after the outer limit of the period referred to in Order VIII Rule 1 CPC.
Overruling these objections, the Sub Judge, in a reasoned order, condoned delay in filing the written statement and received the written statement on record.
The issue for consideration before the bench was:
Is the time limit fixed under Order VIII Rule 1 of the Code of Civil Procedure for filing a written statement, mandatory or directory in character?
The bench relied upon the case of Kailash v. Nanhku & Others where the Apex Court considered the mandate of Order VIII Rule 1 CPC. The question considered was whether the time limit of 90 days as prescribed under the proviso appended to Order VIII Rule 1 CPC is mandatory or directory in nature. The Apex Court held that the time limit fixed is only directory in nature and further opined that the observation by the Apex Court in Dr.J.J. Merchant’s case is obiter
High Court further relied upon the case of M/s. R.N. Jadi & Brothers And Others v. Subhashchandra where the Apex Court considered the question of receiving written statement beyond 90 days. The Apex Court held that the time limit prescribed is directory in nature. However, the extension beyond 30 days is not automatic and should be exercised with caution and further held that the extension of time beyond 90 days must be granted only based on the clear satisfaction of the court.
The bench noted that when a point directly and specifically comes up for consideration before the Apex Court subsequently and the Apex Court decides the matter, the judgment of the subsequent Bench will have to be followed as a binding precedent.
High Court after referring to various judgments observed that the proviso to Order VIII Rule 1 CPC, fixing the time limit, is only directory.
Case Title: M.M. Madhavan Namboodiri v. The Tahsildar
Bench: Justices A. Muhamed Mustaque and Shoba Annamma Eapen
Case No.: OP(C) NO. 1139 OF 2018
Counsel for the appellant: Adv. B.G. Bhasker
Counsel for the respondent: Adv. B. Parthasarathy
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