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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  amendments have been made in the Orders by various High

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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  does not deal with the power of the court and also does not

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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  necessary implication.  Merely, because a provision of law is

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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  provision, have all to be taken into account in

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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.  Undisputedly, the trial Court had granted time upto 8.6.2004

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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.