Full Judgment Text
1 wp1479.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1479 OF 2014
Sanjay Madanchand Kashyap,
Aged 50 years, Occ. Service,
r/o. “Swadesh Ashram”,
Gandhibag, Nagpur. …....... PETITIONER
// VERSUS //
Moolchand Saheblal Kashyap,
Aged 78 years, Occ. Business,
r/o. Mehandibagh Road,
Lalganj, Nagpur. …....... RESPONDENT
======================
Mr.P.A.Markandeywar, Adv. for the Petitioner.
Mr.A.M.Ghare, Adv. for the Respondent.
======================
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CORAM : A.P.BHANGALE, J.
DATE : 8.7.2014.
ORAL JUDGMENT :
1. Rule returnable forthwith. Heard by the
consent of learned Counsel for the respective parties.
2. The petitioner has questioned legality and
validity of order dt. 4.1.2014 passed by the Civil Judge
(Sr.Dn.), Nagpur in Special Civil Suit No.769 of 2012 by
which application Exh.19 for dismissal of the suit was
rejected and application Exh. Nos. 20 and 21 are allowed
and summons was directed to be issued against defendant
nos. 5 to 9, 11 and 14 on payment of process fees.
3. The facts, briefly stated, are as under :
Special Civil Suit No.769 of 2012 for partition,
separate possession and damages was filed. The plaintiff
had claimed 1/7th share in the suit property with a prayer
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for preliminary decree, inquiry into mesne profit, cost of the
suit etc. The said suit was instituted by Moolchand
Saheblal Kashyap against fifteen persons given family
history and relationship between the parties alleging that
Saheblal (father of the plaintiff) was karta of the joint
hindu family. After his demise, Moolchand Kashyap became
karta of the family. Saheblal had acquired property in his
name as well as jointly along with his sons. Thus, the
plaintiff had claimed 1/7th undivided share in the joint
family property and the suit was instituted for partition and
separate possession of the said share. It appears that
defendant nos. 1 to 4, 10 and 15 were served with suit
summons in the month of December, 2012. Defendant nos.
12 and 13 were served subsequently on 6.2.2013. On
29.6.2013, an application (Exh.19) was moved by
defendant no.1 in the suit for dismissal of the suit against
defendant nos. 2 to 9, 11 and 14, while application Exh.
Nos. 20 and 21 were made for grant of permission to serve
the defendants. The first defendant in the suit alleged that
the plaintiff had not taken steps to serve the defendants and
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under Order IX, Rule 5 of the Code of Civil Procedure since
the plaintiff did not apply within two months of return of
summons, the Court is under obligation to dismiss the suit.
4. Reliance is placed upon the ruling in the case of
Devidas Ganpatrao Kulkarni .vs. Upendrarao Madhavrao
Dhopeshwarkar and another reported in 2001 (Supp.2)
Bom.C.R. 412. The Single Judge of this Court held in para
16 of the Judgment with reference to Order IX, Rule 5 of
the Code of Civil Procedure that, from the wording of the
said provisions, it is contemplated that it is duty of the
Court to pass an order as per Order IX, Rule 5 of the Code
of Civil Procedure. It is, thus, contended that the Court has
to see whether provision of Order IX, Rule 5 of the Code of
Civil Procedure are complied with or not and the Court on
its own has to pass necessary order. It appears that there
was Civil Revision Application no.1101 of 1992 before the
learned Single Judge of this Court which was allowed
making it clear that the suit will stand dismissed only as
against defendant no.1 in that case and not as against
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defendant no.2 and the suit may proceed as against
defendant no.2 as per law.
5. Reference is also made to the ruling in the case of
Shaw and Co. vs. B. Shamaldas and Co . reported in AIR
1954 Calcutta 369 to argue that when procedural provision
provides rule of limitation, the Court is left with no
discretion but to make an order that the suit shall be
dismissed as against the unserved defendant.
6. Learned Counsel for the petitioner submitted with
reference to Order IX, Rule 5 of the Code of Civil Procedure
that if the plaintiff is negligent and fails to move the Court
according to law within time and also fails to serve the
unserved defendants, the Court shall make an order that
the suit be dismissed as against such defendants who were
unserved. It is contended that the provision is mandatory
and leaves no discretion with the Court and the Court
ought to have dismissed the suit filed by the plaintiff as
against the unserved defendants.
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7. As against these contentions, the learned Counsel for
the respondent submitted that the impugned order was
passed subject to payment of cost to defendant no.1 while
application Exh.19 made by the defendant was rejected and
the applications made by the plaintiff at Exh. Nos.20 and 21
were allowed by a common order and summons were
directed to be issued against the unserved defendants
namely defendant nos. 5 to 9 and 11and 14 on demand of
process fee. It is submitted that, considering the fact that
the said suit was a suit for partition and separate
possession, the impugned order is sustainable on the
ground that the procedure is handmaid of justice and is not
mandatory but directory.
8. To support the submission that procedural roles are
directory in nature and they must serve as handmaids of
justice, reference is made to the ruling in the case of
Sambhaji and Others .vs. Gangabai and Others reported
in 2009 (1) ALL MR 921 wherein the Supreme Court with
reference to Order VIII, Rule 1 of the Code of Civil
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Procedure dealt with the procedural limit of ninety days
regarding filing of written statement and although the word
'shall' has been used in mandatory term to file the Written
Statement within thirty days from the date of service of
summons upon the defendant and considering the outer
limit of 90 days from the date of service of summons during
which Written Statement is required to be filed mandatorily
under the provisions, the Hon'ble Supreme Court
interpreted the provision and observed that the object of
the provision is to expedite hearing and not to scuttle the
same. It is also observed that justice delayed may amount
to justice denied, but justice hurried may in some cases
amount to justice buried. Thus, all the rules of procedures
were held by the Apex Court as handmaids of justice. The
observations made in para nos. 9 to 13 of the Judgment are
as under :
“9. All the rules of procedure are the handmaids 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
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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 or
the statute, the provisions of 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 justitiae where the
tragic sequel otherwise would be wholly inequitable.
Justice is the goal of jurisprudence, processual, as
much as substantive. 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
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is altered, he has no other right than to proceed
according to the altered mode. 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.
12. Processual law is not to be a tyrant but servant,
not an obstruction but an aid to justice. A Procedural
prescription is the handmaid and not the mistress, a
lubricant, not a resistant in the administration of
justice.
13. It is also to be noted that though the power of
the court under the proviso appended to Rule 1 of
Order 8 is circumscribed by the words “shall not be
later than ninety days” but the consequences flowing
from nonextension of time are not specifically
provided for though they may be read by 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. “
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9. The Apex Court has further observed thus :
“ In Sangram Singh vs. Election Tribunal, Kotah (AIR
1955 SC 425) considering the provisions of the Code
dealing with the trial of 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 a 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 fur the furtherance of justice
to be used to frustrate it. “
10. Thus, it has to be borne in mind that 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 and should not continue
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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 it
reasonably possible, in the light of that principle. The
Supreme Court specifically observed in para 15 of the ruling
that in cases where close relatives are litigants, liberal
approach is called for.
11. Procedural fairness also require that fair opportunity
must be given to answer the case and to raise an objection
about procedural provision and also to give notice to the
opposite party to avail of opportunity of being heard.
Therefore, considering the principles of natural justice that
nobody shall be condenmed unheard, legitimate expectation
of a litigant that suit would be decided after hearing the
parties in accordance with law must be respected while
passing the orders. That being so, the observations made in
respect of mandatorily worded provision of Order VIII, Rule
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1 of the Code of Civil Procedure are attracted in cases of
identical mandatorily worded procedural provision of Code
of Civil Procedure. In view of the observations made by
Hon'ble Supreme Court as above, the law laid down in the
case of Sangram Singh would no longer be a good law,
particularly, when litigation is between close relatives
seeking partition and separate possession of the joint family
or ancestral property. Larger interest of justice would be
served if such litigation is taken to its logical end and
decided on all fronts. That being so, the impugned orders in
respect of application made for permission to serve the
unserved defendants made on behalf of the plaintiff and an
application made by defendant no.1 to have the suit
dismissed on the ground that some of the defendants were
unserved and should be dismissed against them were passed
in conformity with the law as laid down by the Apex Court in
the case of Sambhaji and Ors. The instant case needs no
interference in exercise of extraordinary writ jurisdiction.
Hence, the Writ Petition must be dismissed. It is accordingly
dismissed.
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No order as to costs.
JUDGE
jaiswal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1479 OF 2014
Sanjay Madanchand Kashyap,
Aged 50 years, Occ. Service,
r/o. “Swadesh Ashram”,
Gandhibag, Nagpur. …....... PETITIONER
// VERSUS //
Moolchand Saheblal Kashyap,
Aged 78 years, Occ. Business,
r/o. Mehandibagh Road,
Lalganj, Nagpur. …....... RESPONDENT
======================
Mr.P.A.Markandeywar, Adv. for the Petitioner.
Mr.A.M.Ghare, Adv. for the Respondent.
======================
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CORAM : A.P.BHANGALE, J.
DATE : 8.7.2014.
ORAL JUDGMENT :
1. Rule returnable forthwith. Heard by the
consent of learned Counsel for the respective parties.
2. The petitioner has questioned legality and
validity of order dt. 4.1.2014 passed by the Civil Judge
(Sr.Dn.), Nagpur in Special Civil Suit No.769 of 2012 by
which application Exh.19 for dismissal of the suit was
rejected and application Exh. Nos. 20 and 21 are allowed
and summons was directed to be issued against defendant
nos. 5 to 9, 11 and 14 on payment of process fees.
3. The facts, briefly stated, are as under :
Special Civil Suit No.769 of 2012 for partition,
separate possession and damages was filed. The plaintiff
had claimed 1/7th share in the suit property with a prayer
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3 wp1479.14.odt
for preliminary decree, inquiry into mesne profit, cost of the
suit etc. The said suit was instituted by Moolchand
Saheblal Kashyap against fifteen persons given family
history and relationship between the parties alleging that
Saheblal (father of the plaintiff) was karta of the joint
hindu family. After his demise, Moolchand Kashyap became
karta of the family. Saheblal had acquired property in his
name as well as jointly along with his sons. Thus, the
plaintiff had claimed 1/7th undivided share in the joint
family property and the suit was instituted for partition and
separate possession of the said share. It appears that
defendant nos. 1 to 4, 10 and 15 were served with suit
summons in the month of December, 2012. Defendant nos.
12 and 13 were served subsequently on 6.2.2013. On
29.6.2013, an application (Exh.19) was moved by
defendant no.1 in the suit for dismissal of the suit against
defendant nos. 2 to 9, 11 and 14, while application Exh.
Nos. 20 and 21 were made for grant of permission to serve
the defendants. The first defendant in the suit alleged that
the plaintiff had not taken steps to serve the defendants and
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under Order IX, Rule 5 of the Code of Civil Procedure since
the plaintiff did not apply within two months of return of
summons, the Court is under obligation to dismiss the suit.
4. Reliance is placed upon the ruling in the case of
Devidas Ganpatrao Kulkarni .vs. Upendrarao Madhavrao
Dhopeshwarkar and another reported in 2001 (Supp.2)
Bom.C.R. 412. The Single Judge of this Court held in para
16 of the Judgment with reference to Order IX, Rule 5 of
the Code of Civil Procedure that, from the wording of the
said provisions, it is contemplated that it is duty of the
Court to pass an order as per Order IX, Rule 5 of the Code
of Civil Procedure. It is, thus, contended that the Court has
to see whether provision of Order IX, Rule 5 of the Code of
Civil Procedure are complied with or not and the Court on
its own has to pass necessary order. It appears that there
was Civil Revision Application no.1101 of 1992 before the
learned Single Judge of this Court which was allowed
making it clear that the suit will stand dismissed only as
against defendant no.1 in that case and not as against
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defendant no.2 and the suit may proceed as against
defendant no.2 as per law.
5. Reference is also made to the ruling in the case of
Shaw and Co. vs. B. Shamaldas and Co . reported in AIR
1954 Calcutta 369 to argue that when procedural provision
provides rule of limitation, the Court is left with no
discretion but to make an order that the suit shall be
dismissed as against the unserved defendant.
6. Learned Counsel for the petitioner submitted with
reference to Order IX, Rule 5 of the Code of Civil Procedure
that if the plaintiff is negligent and fails to move the Court
according to law within time and also fails to serve the
unserved defendants, the Court shall make an order that
the suit be dismissed as against such defendants who were
unserved. It is contended that the provision is mandatory
and leaves no discretion with the Court and the Court
ought to have dismissed the suit filed by the plaintiff as
against the unserved defendants.
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7. As against these contentions, the learned Counsel for
the respondent submitted that the impugned order was
passed subject to payment of cost to defendant no.1 while
application Exh.19 made by the defendant was rejected and
the applications made by the plaintiff at Exh. Nos.20 and 21
were allowed by a common order and summons were
directed to be issued against the unserved defendants
namely defendant nos. 5 to 9 and 11and 14 on demand of
process fee. It is submitted that, considering the fact that
the said suit was a suit for partition and separate
possession, the impugned order is sustainable on the
ground that the procedure is handmaid of justice and is not
mandatory but directory.
8. To support the submission that procedural roles are
directory in nature and they must serve as handmaids of
justice, reference is made to the ruling in the case of
Sambhaji and Others .vs. Gangabai and Others reported
in 2009 (1) ALL MR 921 wherein the Supreme Court with
reference to Order VIII, Rule 1 of the Code of Civil
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7 wp1479.14.odt
Procedure dealt with the procedural limit of ninety days
regarding filing of written statement and although the word
'shall' has been used in mandatory term to file the Written
Statement within thirty days from the date of service of
summons upon the defendant and considering the outer
limit of 90 days from the date of service of summons during
which Written Statement is required to be filed mandatorily
under the provisions, the Hon'ble Supreme Court
interpreted the provision and observed that the object of
the provision is to expedite hearing and not to scuttle the
same. It is also observed that justice delayed may amount
to justice denied, but justice hurried may in some cases
amount to justice buried. Thus, all the rules of procedures
were held by the Apex Court as handmaids of justice. The
observations made in para nos. 9 to 13 of the Judgment are
as under :
“9. All the rules of procedure are the handmaids 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
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8 wp1479.14.odt
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 or
the statute, the provisions of 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 justitiae where the
tragic sequel otherwise would be wholly inequitable.
Justice is the goal of jurisprudence, processual, as
much as substantive. 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
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9 wp1479.14.odt
is altered, he has no other right than to proceed
according to the altered mode. 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.
12. Processual law is not to be a tyrant but servant,
not an obstruction but an aid to justice. A Procedural
prescription is the handmaid and not the mistress, a
lubricant, not a resistant in the administration of
justice.
13. It is also to be noted that though the power of
the court under the proviso appended to Rule 1 of
Order 8 is circumscribed by the words “shall not be
later than ninety days” but the consequences flowing
from nonextension of time are not specifically
provided for though they may be read by 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. “
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9. The Apex Court has further observed thus :
“ In Sangram Singh vs. Election Tribunal, Kotah (AIR
1955 SC 425) considering the provisions of the Code
dealing with the trial of 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 a 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 fur the furtherance of justice
to be used to frustrate it. “
10. Thus, it has to be borne in mind that 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 and should not continue
::: Downloaded on - 02/06/2024 03:02:51 :::
11 wp1479.14.odt
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 it
reasonably possible, in the light of that principle. The
Supreme Court specifically observed in para 15 of the ruling
that in cases where close relatives are litigants, liberal
approach is called for.
11. Procedural fairness also require that fair opportunity
must be given to answer the case and to raise an objection
about procedural provision and also to give notice to the
opposite party to avail of opportunity of being heard.
Therefore, considering the principles of natural justice that
nobody shall be condenmed unheard, legitimate expectation
of a litigant that suit would be decided after hearing the
parties in accordance with law must be respected while
passing the orders. That being so, the observations made in
respect of mandatorily worded provision of Order VIII, Rule
::: Downloaded on - 02/06/2024 03:02:51 :::
12 wp1479.14.odt
1 of the Code of Civil Procedure are attracted in cases of
identical mandatorily worded procedural provision of Code
of Civil Procedure. In view of the observations made by
Hon'ble Supreme Court as above, the law laid down in the
case of Sangram Singh would no longer be a good law,
particularly, when litigation is between close relatives
seeking partition and separate possession of the joint family
or ancestral property. Larger interest of justice would be
served if such litigation is taken to its logical end and
decided on all fronts. That being so, the impugned orders in
respect of application made for permission to serve the
unserved defendants made on behalf of the plaintiff and an
application made by defendant no.1 to have the suit
dismissed on the ground that some of the defendants were
unserved and should be dismissed against them were passed
in conformity with the law as laid down by the Apex Court in
the case of Sambhaji and Ors. The instant case needs no
interference in exercise of extraordinary writ jurisdiction.
Hence, the Writ Petition must be dismissed. It is accordingly
dismissed.
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No order as to costs.
JUDGE
jaiswal
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