In a significant judgment pronounced by a Division Bench of the High Court of Jammu & Kashmir and Ladakh, comprising Hon’ble Mr. Justice Rajnesh Oswal and Hon’ble Mr. Justice Sanjay Dhar, adjudicated a batch of petitions challenging the constitutional and statutory validity of S.O. 1123(E) dated 18.03.2020, whereby amendments were introduced to Order V and Order VIII of the Code of Civil Procedure, 1908, as applicable to the Union Territories of Jammu & Kashmir and Ladakh.
The principal controversy before the Court concerned the 120-day outer limit for filing a written statement and the consequential forfeiture of the defendant’s right to file the written statement thereafter. The petitioners had challenged the amendments, inter alia, on the ground that they unduly curtailed judicial discretion and imposed a rigid procedural regime even in ordinary civil suits. The Union of India, on the other hand, defended the amendments as being within the power conferred upon the Central Government under Section 96 of the Jammu and Kashmir Reorganisation Act, 2019, and intended to curb delays in civil litigation.
After examining the legislative history, the statutory framework and the object behind the amendments, the Division Bench held that the amended provisions of Order V and Order VIII CPC are constitutionally valid. The Court, however, held that the 120-day timeline must be read down in exceptional circumstances so as to preserve the Court’s jurisdiction to deal with cases where the defendant was genuinely incapacitated from filing the written statement within the prescribed period for reasons beyond his control.
The Court identified circumstances such as prolonged serious illness, natural calamities, physical or legal disability, unavoidable delay in obtaining indispensable public documents, and delay arising from genuine efforts towards settlement/ADR as illustrative situations in which extension beyond 120 days may be considered. Such extension, however, is not to be granted routinely. The defendant bears a heavy burden to establish the exceptional circumstances through cogent and convincing material, and the plaintiff is to be compensated by appropriate costs.
The Court accordingly concluded that the 120 days period remains the rule and forfeiture follows in ordinary cases, but in exceptionally hard cases where compliance has become impossible for reasons beyond the defendant’s control, the Civil Court retains a narrowly circumscribed discretion to permit filing of the written statement beyond the prescribed period, after recording reasons and imposing costs.
