Jammu & Kashmir High Court
Jatinder Singh vs Ut Of J&K & Ors on 14 July, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No. 09
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 1693/2025
CM No. 3867/2025
Jatinder Singh
.....Appellant(s)/Petitioner(s)
Through: Mr. Rohit Kohli, Advocate and
Mr. Raghav Gaind, Advocate
Vs
UT of J&K & Ors.
..... Respondent(s)
Through: None
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
(14.07.2025)
01. This Court has got accumulation of good number of cases
relatable to the constitutionality of Proviso to Order VIII
Rule 1 of the Code of Civil Procedure, 1908 as
operating in the UT of J&K and the present case is also
joining the bandwagon. This Court has not so far taken
final call on this aspect.
02. In the erstwhile State of Jammu and Kashmir, the Code
of Civil Procedure, Svt., 1977 was the governing law
whereas in the rest of the India, the Code of Civil
Procedure, 1908 being the corresponding law relating to
the procedure of the courts of civil judicature.
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03. In the Code of Civil Procedure, 1908, in the year 2002,
an amendment came to be made thereby providing
timeline for filing of written statement.
04. Accordingly, Order VIII Rule 1 of the Code of Civil
Procedure, 1908 came to provide timeline of (30) thirty
days from the date of service of summons on a defendant
to file written statement of his defense. The period of (30)
thirty was extendable but not later than (90) ninety days
reckoning from the date of service of summons in terms
of proviso.
05. Likewise, with respect to the Code of Civil Procedure,
Svt. 1977 applicable in the State of Jammu and
Kashmir, Order VIII Rule 1 came to be amended on the
identical lines providing (30) thirty days time period for
filing of written statement by a defendant from the date of
service of summons upon him and extendable not later
than (90) ninety days from the same very date of service
of summons.
06. In the year 2018, by way of Governor’s Act No. XLI of
2018 dated 13.12.2018, Proviso to Order VIII Rule 1
came to be amended in the following manner :-
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―In Order VIII,–
(i) In Rule 1, for the proviso thereto, the following
proviso shall be substituted, namely,–
―Provided that where the defendant fails to file
the written statement with the said period of
thirty days, he shall be allowed to file the
written statement on such other day, as may
be specified by the court, for reasons to be
recorded in writing and on payment of such
costs as the court deems fit, but which shall
not be later than one hundred twenty days
from the date of service of summons and on
expiry of one hundred twenty days from the
date of service of summons, the defendant
shall forfeit the right to file the written
statement and the court shall not allow the
written statement to be taken on record.”
07. The Governor’s Act No. XLI of 2018 dated 13.12.2018
was passed by the Governor of State of Jammu and
Kashmir as it used to be then, in exercise of his
legislative powers under Section 92(4) of the
Constitution of Jammu and Kashmir by reference to
Proclamation No. P-1/18 of 2018, dated 20.06.2018
and was thus, supposed to have shelf life of two years
from the date of lapse of the proclamation above referred
which contingency did not take place as the State of
Jammu and Kashmir came to be transformed into two
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Union Territories i.e. Union Territory of Jammu and
Kashmir and Union Territory of Ladakh thereby losing its
constitutional identity as a State and with that the
Governor’s Act No. XLI of 2018 dated 13.12.2018 lost
its efficacy prematurely.
08. The Jammu and Kashmir Reorganization Act, 2019
came to repeal expressly the laws as mentioned in
Schedule-5 Table-3 which included the Jammu and
Kashmir Code of Civil Procedure, Svt., 1977.
09. Correspondingly, the Code of Civil Procedure, 1908
came to be made applicable to the Union Territory of
Jammu and Kashmir as well as to the Union Territory of
Ladakh being one of the Acts mentioned in Table-1 made
applicable to the two Union Territories.
10. The Code of Civil Procedure, 1908 being so made
applicable to the Union Territory of Jammu and Kashmir
as well as to the Union Territory of Ladakh w.e.f.
appointed date of 31.10.2019 in normal course of scheme
would have meant Order VIII Rule 1 being applicable as
it is in the Union Territory of Jammu and Kashmir as
well as in the Union Territory of Ladakh providing
timeline of (30) thirty days read with (90) ninety days for
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filing of written statement in a civil suit as applicable to
the rest of India.
11. However, by purported regards to Section 96 of the
Jammu and Kashmir Reorganization Act, 2019, by
virtue of S.O. 1123(E) of 2020 dated 18.03.2020, the
Central Government came forward with an order known
as the Jammu and Kashmir Reorganization
(Adaptation of Central Laws) Order, 2020 in terms
whereof the Acts mentioned in its Schedule, all being
Central laws, came to be purportedly subjected to
adaptation and modification as set out therein.
12. The Code of Civil Procedure, 1908 is one of the Central
laws subjected to adaptation and modification and in the
context of Order VIII Rule 1, a Proviso came to be
revised as under :-
―In Order VIII,–
(i) In Rule 1, for the proviso thereto, substitute the
following proviso, namely,–
―Provided that where the defendant fails to file
the written statement with the said period of
thirty days, he shall be allowed to file the
written statement on such other day, as may
be specified by the court, for reasons to be
recorded in writing and on payment of such
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costs as the court deems fit, but which shall
not be later than one hundred twenty days
from the date of service of summons and on
expiry of one hundred twenty days from the
date of service of summons, the defendant
shall forfeit the right to file the written
statement and the court shall not allow the
written statement to be taken on record.”
thereby replacing the proviso otherwise obtaining in
the Code of Civil Procedure, 1908 which is also being
reproduced hereunder :-
“Provided that where the defendant fails to file
the written statement within the said period of
thirty days, he shall be allowed to file the same
on such other day, as may be specified by the
Court, for reasons to be recorded in writing,
but which shall not be later than ninety days
from the date of service of summons.”
13. Thus, what is operating in the form of proviso to Rule 1
of Order VIII in rest of India is not what is operating in
the Union Territory of Jammu and Kashmir as well as in
the Union Territory of Ladakh.
14. The timeline in the Union Territory of Jammu and
Kashmir and Union Territory of Ladakh with respect to
filing of written statement is absolute and
unexceptionable whereas the proviso with rest of India
the Proviso to Rule 1 Order VIII has been read by the
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Hon’ble Supreme Court of India to be providing a scope
for a civil court to entertain the written statement filed
beyond prescribed maximum period of (90) ninety days
and this is where the litigants being defendants in the
civil suits in the Union Territory of Jammu and Kashmir
and in the Union Territory of Ladakh are finding
themselves being hit by civil courts’ orders in refusing to
entertain written statements filed beyond 120 days
timeline thereby landing themselves before this Court
under writ/supervisory jurisdiction in terms of article
226 and 227 of Constitution of India.
15. The entire issue is to be understood in the context as to
whether Section 96 of Jammu and Kashmir
Reorganization Act, 2019 is to be read by reference to
adaptation and modification thereby enabling limited
power of repeal or amendment or to read the power of
repeal or amendment being vested in the Central
Government as an Executive to do any conceivable repeal
or amendment to any of the Central laws applicable in
the State of Jammu and Kashmir.
16. It is in this context that the adjudication of the matters
pending before this Court is to take effect.
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17. In the present case, the petitioner has come to suffer
refusal of entertainment of its time-barred written
statement submitted in civil suit filed by respondent
before the court of Additional Civil Judge (Jr. Division),
R.S. Pura who by virtue of an order dated 30.04.2025 has
declined the entertainment of the written statement
holding it barred by time and no power to condone the
delay vested in the civil court.
18. Issue notice to the respondents.
19. Ms. Nazia Fazal, Assisting Counsel vice Mrs. Monika
Kohli, learned Sr. AAG accepts notice on behalf of the
respondent No. 1 and Mr. Vishal Sharma, learned DSGI
accepts notice on behalf of the respondent No. 2.
20. Notice to go to respondent No. 3 only.
21. Petitioner to furnish the registered postal cover for the
service for the service of the respondent No. 3 within a
period of seven days whereupon notice to go to the
respondent No. 3.
22. List this case along with WP(C) No. 3133/2023.
23. As the date given in the civil suit is on 19.07.2025, as
such, this Court requests the learned trial court of
Additional Civil Judge (Jr. Division), R.S. Pura to apprise
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the plaintiff-Gurmeet Singh who is the respondent No. 3
herein or his counsel about the listing of this case on
29.07.2025.
24. A copy of this order be forwarded by the Registrar
Judicial, Jammu to the learned trial court of Additional
Civil Judge (Jr. Division), R.S. Pura.
25. In the meantime, further proceedings in the suit shall
remain on hold.
(RAHUL BHARTI)
JUDGE
JAMMU
14.07.2025
SUNIL
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