REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6731 OF  2008 (Arising out of SLP (C) No. 14562 of 2006)  

Sambhaji & Ors. ...Appellants

Versus

Gangabai & Ors. ...Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of  the  Bombay  High  Court  dismissing  the  Writ  petition  filed  by  the

appellants  questioning  correctness  of  the  order  passed  by  the  trial  court

rejecting the application for setting aside the order directing that no written

statement was to be accepted and also not allowing the appellants who are

the defendants in RCS No.99 of 2003 filed by respondent No.1 the plaintiff

to file written statement. Rest of the respondents are the defendants in the

suit.  Admittedly an order was passed stating that the written statement was

not filed within the period of 90 days.  An application was filed alongwith

the  written  statement  with  two  prayers;  first  prayer  was  to  set  aside  the

earlier  order relating to non-filing of the written statement and second to

accept the written statement along with the application.  The trial court held

that  in  terms  of  the  amended  Order  VIII  Rule  1  of  the  Code  of  Civil

Procedure, 1908 (in short the ‘CPC’), there was no scope for accepting a

written statement filed beyond the fixed period of 90 days.  The order was

challenged before the High Court which noted that though the view of the

trial court that it had no power to accept the written statement filed after 90

days  was  not  correct  in  the  circumstances  of  the  case  no  case  for

interference was made out.

3. Learned counsel for the appellants submitted that the factual scenario

clearly showed that the trial court and the High Court erred in not accepting

the prayers made.

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4. Learned counsel for the respondent No.1 on the other hand stated that

the  plaintiff  is  an  old  lady  in  her  80’s  and  with  a  view to  prolong  the

proceedings the appellants are deliberately trying to harass her.

5. The  Code  of  Civil  Procedure  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 the 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

Courts.  Amendments  have  also  been  made  keeping  in  view  the

recommendations of the 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  inbuilt  in  any  sustainable  procedure.  The

Statement of Objects and Reasons for enacting the Code of Civil Procedure

(Amendment)  Act,  1976  (104  of  1976)  (in  short  “the  1976  Amendment

Act”)  highlights  the  following  basic  considerations  in  enacting  the

amendments:

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“5.  (i)  that  a litigant  should  get  a fair  trial  in  accordance with the

accepted principles of natural justice;

(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.”

6. By the 1999 Amendment Act the text of Order 8 Rule 1 was sought to

be substituted in a manner that the power of the 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”.

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7. The text of Order 8 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  8  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  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 8 Rule 1 is procedural. It is

not a part of the substantive law. Substituted Order 8 Rule 1 intends to curb

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the mischief of unscrupulous defendants adopting dilatory tactics, delaying

the  disposal  of  cases,  causing  inconvenience  to  the  plaintiffs  and  the

petitioners  approaching  the  court  for  quick  relief  and  also  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 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 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 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.

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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 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 a 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.

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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 non-

extension 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.

14. Challenge to the constitutional  validity of the Amendment Act and

the 1999 Amendment Act was rejected by this Court in Salem Advocate Bar

Association v.  Union of  India [2003(1)  SCC 49].  However,  to  work out

modalities  in  respect  of  certain  provisions  a  committee  was  constituted.

After receipt of the committee’s report the matter was considered by a three-

Judge Bench in Salem Advocate Bar Assn. v. Union of India [2005(6)SCC

344]. As regards Order 8 Rule 1 the committee’s report is as follows: (SCC

pp. 362-63, paras 15-18)

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“15.  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  8  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.

16. 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 8 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.

17.  In  Raza  Buland  Sugar  Co.  Ltd. v.  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 arriving at the conclusion whether a particular provision is mandatory or directory.

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In  Sangram Singh v.  Election Tribunal, Kotah [AIR 1955 SC 425] considering the provisions of the Code dealing with the trial of suits, it was opined that: (SCR pp. 8-9)

‘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  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.’ ” [See:  SK. Salim Haji  Abdul Khyumsab v. Kumar (2006(1) SCC 46)] and  R.N. Jadi & Bros. v.  Subhashchandra [2007(6) SCC 420]

15. In  the  instance  case  the  trial  court  proceeded  on  the  erroneous

premises that there was no scope to accept the written statement after 90

days. The High Court by the impugned order held that though it had power,

no case was made out to accept the prayer. We have considered the grounds

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indicated by the appellants seeking acceptance of the written statement filed

belatedly.  They cannot be considered to be trivial or without substance. In

the case of this nature where close relatives are litigants a liberal approach

is called for.  In the circumstances we set aside the impugned order of the

High Court affirming the order passed by the trial court refusing acceptance

of the written statement. The matter is not very complex.  We request the

trial court to complete trial of the suit within the period of six months.  The

appeal is allowed without any order as to costs.

……..............................................J. (Dr. ARIJIT PASAYAT)

.…….............................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 20, 2008

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