Full Judgment Text
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CASE NO.:
Appeal (civil) 2925 of 2007
PETITIONER:
M/s R.N. Jadi & Brothers and Ors
RESPONDENT:
Subhashchandra
DATE OF JUDGMENT: 10/07/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2925 OF 2007
(Arising out of SLP (C) No. 14606 OF 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. The controversy lies within a very narrow compass. The
appellants-defendants were issued summons by the trial
Court. They did not file the written statement within 90 days
from the date of service of summons and there was a delay of
two days. The trial Court accepted the written statement
which was filed beyond 90 days despite the objection raised by
the plaintiff-respondent. The order of the trial Court was
challenged before the Karnataka High Court in a Writ Petition
under Article 227 of the Constitution of India, 1950 (in short
the ’Constitution’) on the ground that the provision of Order
VIII Rule 1 of the Code of Civil Procedure, 1908 (in short the
’CPC) was mandatory and the trial Judge could not have
accepted the written statement filed beyond 90 days from the
date of service. The writ petition was allowed by order dated
30.8.2004. A Writ Appeal was filed which was held to be not
maintainable.
3. A review petition was filed taking the stand that in view
of a decision of this Court in Kailash v. Nanhku and Ors.
(2005 (4) SCC 480) where it was held that the provisions of
Order VIII Rule 1 CPC are directory, the reasons justifying the
delayed presentation of the written statement could be
satisfactorily explained. The High Court dismissed the review
petition on the ground that a case for review was not made
out. All the three orders are under challenge in this appeal.
4. Learned counsel for the appellants submitted that the
decision taken by the High Court is not sustainable in view of
law declared by this Court.
5. Learned counsel for the respondent on the other hand
supported the orders of the High Court.
6. The CPC enacted in 1908 consolidated and amended the
laws relating to the procedure of the Courts of Civil
Judicature. It has undergone several amendments by several
Acts of Central and State Legislatures. Under Section 122 CPC
the High Courts have power to amend by rules, the procedure
laid down in the Orders. In exercise of these powers various
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amendments have been made in the Orders by various High
Courts. Amendments have also been made keeping in view
recommendations of Law Commission. Anxiety of Parliament
as evident from the amendments is to secure an early and
expeditious disposal of civil suits and proceedings without
sacrificing the fairness of trial and the principles of natural
justice in-built in any sustainable procedure. The Statement
of Objects and Reasons for enacting Code of Civil Procedure
(Amendment) Act, 1976 (104 of 1976) (in short ’1976
Amendment Act’) highlights following basic considerations in
enacting the amendments:-
(i) with the accepted principles of natural
justice that a litigant should get a fair
trial in accordance;
(ii) that every effort should be made to
expedite the disposal of civil suits and
proceedings, so that justice may not
be delayed;
(iii) that the procedure should not be
complicated and should, to the utmost
extent possible, ensure fair deal to the
poorer sections of the community who
do not have the means to engage a
pleader to defend their cases."
7. By the 1999 Amendment Act the text of Order VIII, Rule
1 was sought to be substituted in a manner that the power of
court to extend the time for filing the written statement was so
circumscribed as would not permit the time being extended
beyond 30 days from the date of service of summons on the
defendant. Due to resistance from the members of the Bar
against enforcing such and similar other provisions sought to
be introduced by way of amendment, the Amendment Act
could not be promptly notified for enforcement. The text of the
provision in the present form has been introduced by the
Amendment Act with effect from 1.7.2002. The purpose of
such like amendments is stated in the Statement of Objects
and Reasons as "to reduce delay in the disposal of civil cases".
The text of Order VIII, Rule 1, as it stands now, reads as
under: -
"1. Written statement.- The defendant shall,
within thirty days from the date of service of
summons on him, present a written statement
of his defence:
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."
8. Order VIII, Rule 1 after the amendment casts an
obligation on the defendant to file the written statement within
30 days from the date of service of summons on him and
within the extended time falling within 90 days. The provision
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does not deal with the power of the court and also does not
specifically take away the power of the court to take the
written statement on record though filed beyond the time as
provided for. Further, the nature of the provision contained in
Order VIII, Rule 1 is procedural. It is not a part of the
substantive law. Substituted Order VIII, Rule 1 intends to
curb the mischief of unscrupulous defendants adopting
dilatory tactics, delaying the disposal of cases causing
inconvenience to the plaintiffs and petitioners approaching the
court for quick relief and also to the serious inconvenience of
the court faced with frequent prayers for adjournments. The
object is to expedite the hearing and not to scuttle the same.
While justice delayed may amount to justice denied, justice
hurried may in some cases amount to justice buried.
9. All the rules of procedure are the handmaid of justice.
The language employed by the draftsman of processual law
may be liberal or stringent, but the fact remains that the
object of prescribing procedure is to advance the cause of
justice. In an adversarial system, no party should ordinarily
be denied the opportunity of participating in the process of
justice dispensation. Unless compelled by express and specific
language of the Statute, the provisions of the CPC or any other
procedural enactment ought not to be construed in a manner
which would leave the court helpless to meet extraordinary
situations in the ends of justice.
10. The mortality of justice at the hands of law troubles a
Judge’s conscience and points an angry interrogation at the
law reformer.
11. The processual law so dominates in certain systems as to
overpower substantive rights and substantial justice. The
humanist rule that procedure should be the handmaid, not
the mistress, of legal justice compels consideration of vesting a
residuary power in judges to act ex debito justiciae where the
tragic sequel otherwise would be wholly inequitable. - Justice
is the goal of jurisprudence-processual, as much as
substantive. [See Sushil Kumar Sen v. State of Bihar (1975 (1)
SCC 774].
12. No person has a vested right in any course of procedure.
He has only the right of prosecution or defence in the manner
for the time being by or for the Court in which the case is
pending, and if, by an Act of Parliament the mode of procedure
is altered, he has no other right than to proceed according to
the altered mode. [See Blyth v. Blyth (1966 (1) All E.R. 524
(HL)]. A procedural law should not ordinarily be construed as
mandatory, the procedural law is always subservient to and is
in aid to justice. Any interpretation which eludes or frustrates
the recipient of justice is not to be followed. [See Shreenath
and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827)].
13. Processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions are
the handmaid and not the mistress, a lubricant, not a
resistant in the administration of justice.
14. It is also to be noted that though the power of the Court
under the proviso appended to Rule 1 of Order VIII is
circumscribed by the words - "shall not be later than ninety
days" but the consequences flowing from non-extension of
time are not specifically provided though they may be read by
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necessary implication. Merely, because a provision of law is
couched in a negative language implying mandatory character,
the same is not without exceptions. The courts, when called
upon to interpret the nature of the provision, may, keeping in
view the entire context in which the provision came to be
enacted, hold the same to be directory though worded in the
negative form.
15. Challenge to the Constitutional validity of the
Amendment Act and 1999 Amendment Act was rejected by
this Court in Salem Advocate Bar Association, Tamil Nadu v.
Union of India (JT 2002 (9) SC 175). However to work out
modalities in respect of certain provisions a Committee was
constituted. After receipt of Committee’s report the matter was
considered by a three-Judge Bench in Salem Advocate Bar
Association, Tamil Nadu v. Union of India (JT 2005 (6) SC
486). As regards Order VIII Rule 1 Committee’s report is as
follows:
"The question is whether the Court has any
power or jurisdiction to extend the period beyond
90 days. The maximum period of 90 days to file
written statement has been provided but the
consequences on failure to file written statement
within the said period have not been provided for
in Order VIII Rule 1. The point for consideration
is whether the provision providing for maximum
period of ninety days is mandatory and,
therefore, the Court is altogether powerless to
extend the time even in an exceptionally hard
case.
It has been common practice for the parties to
take long adjournments for filing written
statements. The legislature with a view to curb
this practice and to avoid unnecessary delay and
adjournments, has provided for the maximum
period within which the written statement is
required to be filed. The mandatory or directory
nature of Order VIII Rule 1 shall have to be
determined by having regard to the object sought
to be achieved by the amendment. It is, thus,
necessary to find out the intention of the
legislature. The consequences which may follow
and whether the same were intended by the
legislature have also to be kept in view.
In Raza Buland Sugar Co. Ltd., Rampur v. The
Municipal Board, Rampur [AIR 1965 SC 895], a
Constitution Bench of this Court held that the
question whether a particular provision is
mandatory or directory cannot be resolved by
laying down any general rule and it would depend
upon the facts of each case and for that purpose
the object of the statute in making out the
provision is the determining factor. The purpose
for which the provision has been made and its
nature, the intention of the legislature in making
the provision, the serious general inconvenience or
injustice to persons resulting from whether the
provision is read one way or the other, the relation
of the particular provision to other provisions
dealing with the same subject and other
considerations which may arise on the facts of a
particular case including the language of the
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provision, have all to be taken into account in
arriving at the conclusion whether a particular
provision is mandatory or directory.
In Sangram Singh v. Election Tribunal Kotah &
Anr. [AIR 1955 SC 425], considering the provisions
of the Code dealing with the trial of the suits, it
was opined that:
"Now a code of procedure must be regarded
as such. It is procedure, something designed
to facilitate justice and further its ends: not a
Penal enactment for punishment and
penalties; not a thing designed to trip people
up. Too technical construction of sections
that leaves no room for reasonable elasticity
of interpretation should therefore be guarded
against (provided always that justice is done
to both sides) lest the very means designed
for the furtherance of justice be used to
frustrate it.
Next, there must be ever present to the mind
the fact that our laws of procedure are
grounded on a principle of natural justice
which requires that men should not be
condemned unheard, that decisions should
not be reached behind their backs, that
proceedings that affect their lives and
property should not continue in their absence
and that they should not be precluded from
participating in them. Of course, there must
be exceptions and where they are clearly
defined they must be given effect to. But
taken by and large, and subject to that
proviso, our laws of procedure should be
construed, wherever that is reasonably
possible, in the light of that principle. "
16. The position was examined in details in Kailash’s case
(supra) and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and
Others (2005(6) SCC 705).
17. In the facts and circumstances of the case, the maxim of
equity, namely, actus curiae neminem gravabit \026 an act of
court shall prejudice no man, shall be applicable. This maxim
is founded upon justice and good sense which serves a safe
and certain guide for the administration of law. The other
maxim is, lex non cogit ad impossibilia \026 the law does not
compel a man to do what he cannot possibly perform. The law
itself and its administration is understood to disclaim as it
does in its general aphorisms, all intention of compelling
impossibilities, and the administration of law must adopt that
general exception in the consideration of particular cases. The
applicability of the aforesaid maxims has been approved by
this Court in Raj Kumar Dey v. Tarapada Dey (1987 (4) SCC
398), Gursharan Singh v. New Delhi Municipal Committee
(1996 (2) SCC 459), Ohammod Gazi v. State of M.P. and others
(2000(4) SCC 342) and Shaikh Salim Haji Abdul Khayumsab
v. Kumar and Ors. (2006 (1) SCC 46).
18. The matter can be looked at from another angle.
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Undisputedly, the trial Court had granted time upto 8.6.2004
which undisputedly fell beyond 90 days. There is no dispute
that the written statement was filed on 8.6.2004.
19. In view of what has been stated above, we set aside the
impugned orders of the High Court. The written statement
already filed shall be duly taken note of by the trial Court. The
appeal is allowed but without any order as to costs.