Date Of Service Of Summons Is Starting Point For Limitation Period To File Written Statement: Bombay High Court
The Bombay High Court has held that the limitation period for filing a written statement under Order VIII Rule 1 of the Civil Procedure Code, 1908 begins from the date of service of summons along with a copy of the plaint, and not from the date of filing of the Vakalatnama by the defendant. The Court emphasised that the responsibility to serve the plaint rests upon the plaintiff and that the defendant cannot be expected to apply to the court office to obtain a copy of the plaint merely because a Vakalatnama has been filed earlier.
Justice Jitendra Jain was hearing an interim application filed by the original defendant No. 1, seeking condonation of a 75-day delay in filing its written statement in a non-commercial suit filed by the Trustees of the Funds and Properties of the Parsi Panchayat, Bombay. The plaintiffs argued that since the Vakalatnama had been filed on 11 June 2021, the writ of summons was deemed to have been served from that date under Rule 84 of the Bombay High Court (Original Side) Rules, 1980, and therefore the delay was over 700 days.
The Court rejected this submission, holding that Rule 84 merely prescribes a method of proving service where the fact of service is in dispute, and cannot be read to mean that filing of a Vakalatnama amounts to deemed service of summons with plaint. It observed:
“Rule 84 is only a Rule providing for the mode of proof, and the same cannot be construed to mean that if the vakalatnama is filed, then summons is deemed to have been served along with the plaint when there is no dispute qua service of summons.”
The Court emphasised that the filing of Vakalatnama can be after the service of the summons; however, if a Vakalatnama is filed before the service of the writ of summons, the same cannot go against the Defendant for computing the starting period of limitation for the purpose of Order VIII Rule 1. It held that the defendant No. 1 is justified in calculating the delay from the date of service of the summons.
“… on a conjoint reading of Rules 84, 87, 88, and Order VIII Rule 1 and keeping in mind the objective of filing the written statement, the limitation would start from the day when the writ of summons along with the copy of the plaint/suit is served on the Defendant,” the Court observed.
The Court further held that the 75-day delay caused by inadvertence in the office of the advocate constituted “sufficient cause.” The Court remarked that litigants should not be penalised for inadvertent mistakes of their advocates, especially where the delay is not inordinate and no prejudice is caused.
Accordingly, the Court allowed the application, condoning the delay and directing the Registry to take the written statement on record.
Case Title: Gautam Dham Co-operative Housing Society Ltd. & Ors. v. Funds and Properties of Parsi Panchayat, Bombay & Ors. [Interim Application No. 4761 of 2025 in Suit No. 393 of 2022, Bombay High Court, decided on 20 September 2025]