Case No.: Civil Appeal No. 433/2020
Case: Desh Raj vs. Balkishan
Corum: CJI SA Bobde, Justice Surya Kant and BR Gavai.
For filing a written statement in a court of law, there is limited time defined for the suit to be filed. Non- Commercial transaction is not done for the purpose to earn direct profit in the ordinary course of a transaction. The purpose of non-commercial is to provide public or social welfare and not to make a profit in its direction. The written statement must be filed within 120days from the time to cause of action has been raised.
The appeal was filed against the order of the Delhi High Court under Order VIII rule 1 of the Civil procedure code is related to his right to file the written statement within 120 days as a revision petition. The issue was raised as both appellant and respondent are brothers and owned one flat from their ancestral properties.
The respondent approached the appellant to purchase the floor owned by appellant and contracts were formed by both the parties and the sum of 1lakhs has been paid in due consideration of Rs 7.5lakhs. The contract was not honoured as the appellant tried to sell the property to the third party. The respondent approached the court to make the performance of the contract and injuct the appellant to alienate the property in favour of the third party. The appellant was provided with the opportunity to file a written statement in a limited period and his unable to do so the court closed his opportunity and struck off his defence.
- The case did not fall under the category of Section 2(c) of the commercial court’s act, 2015 as the immovable property here is not in nature to use exclusively in trade and commerce.
- The delay in filing the written statement is happened because of the counsel of the appellant as the appellant was present in every date of hearing in the absence of his counsel. And not providing him with an opportunity to file the written statement is the amount of injustice to the appellant.
- The rule to file written statement within 120 days in order VIII rule 1, the timeline to file the written statement in case of non-commercial dispute is directory not mandatory but it is mandatory in commercial suits.
- Earlier the order VIII rule 1 of CPC was a directory order and it is amended and makes the written statement must be filed within 120days in case of commercial dispute. The non-commercial dispute still fell under unamended order and filing of the written statement within 120days is a directory order.
The court order to dispose of the appeal and allow the appellant to file to the written statement within 1week at the cost of a fine Rs25,000. The non-commercial dispute still falls under unamended order VIII rule 1 of CPC and the unamended provisions are the directory nor mandatory to file the written statement within 120days. There was no discretion to extend the time for filing the written statement even the summon were issued against the person to file the written statement. The timeline for filing the written statement is mandatory in the commercial suit but the directory in the non-commercial suits.
Edited by Vartika Gajendra Singh
Approved & Published – Sakshi Raje