Full Judgment Text
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CASE NO.:
Appeal (civil) 2925 of 2007
PETITIONER:
M/s R.N. Jadi & Brothers & Ors
RESPONDENT:
Subhashchandra
DATE OF JUDGMENT: 10/07/2007
BENCH:
P.K. BALASUBRAMANYAN
JUDGMENT:
JUDGMENT
CIVIL APPEAL NO. 2925 OF 2007
(Arising out of S.L.P. (C) No. 14606 of 2006)
P.K. BALASUBRAMANYAN, J.
1. I respectfully agree. The High Court was in error in
setting aside the order of the trial court accepting the written
statement filed by the defendants, in the circumstances of the
case. I am prompted to make a few observations in the
context of the discussion by my learned brother on the scope
of the related provisions of the Code of Civil Procedure.
2. It is notorious that suits were being dragged on by
defendants in suits by not filing their written statements
within a reasonable time. We are not unaware of cases where
written statements were not filed even within two or three
years of the filing of the suits. The control expected to be
exercised by courts, by the scheme of the Code, was not being
exercised leading to slackness in the matter of filing of
pleadings in defence. It was in that context that the relevant
provisions of the Code of Civil Procedure were amended, the
laudable object being to avoid delay in the disposal of suits.
The Amended Order VIII Rule 1 fixes a time limit for the filing
of written statements. But, Parliament did not stop with
amending Order VIII Rule 1 alone i.e. introducing a time limit
for filing written statements and restricting the power of the
court to grant extension of time for filing written statements as
90 days from the date of service of summons. The power for
extension of time granted to the court under Section 148 of
the Code was curtailed by introducing an outer time limit of
30 days from the date originally fixed or granted. Thus, the
legislative intent to limit or curtail the power of the court to
extend the time for filing a written statement is obvious from a
conjoint reading of these provisions.
3. In addition to the time limit prescribed in Order VIII
Rule 1 of the Code, it is provided in Order V Rule 1 that the
summons issued to the defendant should itself provide that he
has to appear and file his written statement within one month
of receipt of it and limiting the power of the court to extend the
time for written statement to 90 days. The summons is to be
accompanied by a copy of the plaint. It simultaneously
introduced Rule 14 to Order VII providing that where the
plaintiff sues upon a document or relies upon a document in
his possession or power, in support of his claim, he shall enter
such documents in a list and shall produce it in court when
the plaint is presented by him and shall at the same time
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deliver the document and copy thereof to be filed with the
plaint. Sub-rule (3) was introduced to provide that if the
document is not included in the list, or is not produced with
the plaint, it was not to be produced without the leave of the
court and without the leave of the court it shall not be received
in evidence on his behalf at the hearing of the suit.
4. In such a position, normally no injustice would be
caused to the defendant in insisting upon his filing the written
statement at least within 90 days of having received the
summons in the suit. I think that it would be proper to avoid
an interpretation that may tend to thwart the legislative intent
in such circumstances.
5. It is true that procedure is the handmaid of justice.
The court must always be anxious to do justice and to prevent
victories by way of technical knock-outs. But how far that
concept can be stretched in the context of the amendments
brought to the Code and in the light of the mischief that was
sought to be averted is a question that has to be seriously
considered. I am conscious that I was a party to the decision
in Kailash vs. Nankhu and others (2005 (4) SCC 480) which
held that the provision was directory and not mandatory But
there could be situations where even a procedural provision
could be construed as mandatory, no doubt retaining a power
in the court, in an appropriate case, to exercise a jurisdiction
to take out the rigor of that provision or to mitigate genuine
hardship. It was in that context that in Kailash vs. Nankhu
and others (supra) it was stated that the extension of time
beyond 90 days was not automatic and that the court, for
reasons to be recorded, had to be satisfied that there was
sufficient justification for departing from the time limit fixed by
the Code and the power inhering in the court in terms of
Section 148 of the Code. Kailash is no authority for receiving
written statements, after the expiry of the period permitted by
law, in a routine manner.
6. A dispensation that makes Order VIII Rule 1
directory, leaving it to the courts to extend the time
indiscriminately would tend to defeat the object sought to be
achieved by the amendments to the Code. It is, therefore,
necessary to emphasize that the grant of extension of time
beyond 30 days is not automatic, that it should be exercised
with caution and for adequate reasons and that an extension
of time beyond 90 days of the service of summons must be
granted only based on a clear satisfaction of the justification
for granting such extension, the court being conscious of the
fact that even the power of the court for extension inhering in
Section 148 of the Code, has also been restricted by the
legislature. It would be proper to encourage the belief in
litigants that the imperative of Order VIII Rule 1 must be
adhered to and that only in rare and exceptional cases, the
breach thereof will be condoned. Such an approach by courts
alone can carry forward the legislative intent of avoiding delays
or at least in curtailing the delays in the disposal of suits filed
in courts. The lament of Lord Denning in ALLEN vs. SIR
ALFRED McALPINE & SONS [(1968) 1 All E.R. 543] that law’s
delays have been intolerable and last so long as to turn justice
sour, is true of our legal system as well. Should that state of
affairs continue for all times?