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CASE NO.: Appeal (civil)  7000 of 2004

PETITIONER: Kailash

RESPONDENT: Nanhku & Ors.

DATE OF JUDGMENT: 06/04/2005

BENCH: CJI R.C. Lahoti, D.M. Dharmadhikari & P.K. Balasubramanyan

JUDGMENT: J  U  D  G  M  E  N  T

R.C. Lahoti, CJI

Facts in brief

       Elections of Uttar Pradesh Legislative Council were held  pursuant to the Presidential notification dated 7.11.2003. The  appellant was declared elected. Respondent No. 1 filed an  election petition under Section 80 of the Representation of the  People Act, 1951 (hereinafter ’the Act’, for short) laying  challenge to the election of the appellant.

       The appellant was served with the summons, accompanied  by a copy of the election petition, requiring his appearance  before the Court on 6.4.2004. On the appointed day, the  appellant appeared through his counsel and sought for one  month’s time for filing the written statement. The Court allowed  time till 13.5.2004 for filing the written statement. On  13.5.2004, the appellant again filed an application seeking  further time for filing the written statement on the ground that  copies of several documents were required to be obtained. The  Court adjourned the hearing to 3.7.2004 as, in between, from  13.5.2004 to 2.7.2004, the High Court was closed for summer  vacation. On 22.6.2004, appellant’s advocate’s nephew expired.   However, the written statement was drafted and kept ready for  filing. The registered clerk of the advocate was deputed for filing  the same in the Court on the appointed day.  The clerk reached  Allahabad, the seat of the High Court, from Gazipur where the  appellant and his advocate resided.  On 1.7.2004, that is, two  days prior to the day of hearing, the affidavit of the appellant  annexed with the written statement, was sworn in at Allahabad.  However, (as is later on stated), on account of lack of  understanding on the part of the registered clerk, the written  statement could not be filed on 3.7.2004 but the same was filed  on 8.7.2004 accompanied by an application for condonation of  delay in filing the written statement briefly stating the reasons  set out hereinbefore.  On 23.8.2004, the High Court rejected the  application filed by the appellant and refused to take the written  statement on record for the reason that the same was filed  beyond a period of 90 days from the date of service of  summons, the period of limitation as provided by the Proviso to  Rule 1 of Order VIII of the Code of Civil Procedure, 1908  (hereinafter  ’the CPC’, for short), as introduced by Act 22 of  2002 with effect from 1.7.2002.  Feeling aggrieved by the said  order, the winning candidate i.e. the defendant-respondent

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before the High Court, has filed this appeal by special leave.

       We have heard Shri Vijay Hansaria, the learned senior  counsel for the appellant, Shri Vijay Kumar, the learned counsel  for the respondent (election petitioner), and also Mr. Rakesh  Dwivedi, the learned senior counsel, who has on request  appeared Amicus Curiae.    

Questions for decisions

       The learned counsel for the appellant submitted that the  provisions of the CPC do not ipso facto and in their entirety apply  to the trial of election petition under Chapter II of the Act.   Alternatively, he submitted that rules have been framed by the  Allahabad High Court making special provisions relating to the  trial of election petitions which would override the provisions of  the CPC. In the next alternative, the learned senior counsel  submitted that the provisions of Order VIII Rule 1 of the CPC  being in the realm of procedural law, the time limit contained  therein should be construed as directory and not mandatory  assuming the provision is applicable to the trial of election  petitions.  The learned counsel for respondent No. 1 has  disputed the correctness of the submissions so made and argued  in support of the impugned order of the High Court.  

               Three questions arise for decision :-

(1) Whether Order VIII Rule 1 of the CPC is  applicable to the trial of an election petition under  Chapter II of the Act?

(2) Whether the rules framed by the High Court  governing the trial of election petitions would  override the provisions of CPC and permit a written  statement being filed beyond the period prescribed  by Order VIII Rule 1 of the CPC?

(3) Whether the time limit of 90 days as prescribed  by the Proviso appended to Rule 1 of Order VIII of  the CPC is mandatory or directory in nature?

Relevant Provisions

       The Representation of the People Act, 1951 (43 of 1951)  has been enacted, as its Preamble indicates, to provide for the  conduct of elections and other proceedings relating to such  elections, as also for the decision of doubts and disputes arising  out of or in connection with such elections. Part VI of the Act  deals with ’Disputes Regarding Elections’. The provisions  contained therein are elaborate and detailed. This Part is divided  into five Chapters.  Chapter I incorporates Section 79 which is an  interpretation clause giving definitions of certain words and  expressions which are relevant for the purpose of Parts VI and  VII of the Act.  Chapter II deals with presentation of election  petitions to High Courts. The jurisdiction to try election petitions  is conferred on the High Courts. Provisions are made as to by  whom and in what manner an election petition shall be  presented; who will be parties to the petition; what an election  petition must contain and the reliefs which an election petitioner  may claim.  Chapter III makes provision for trial of election  petitions; procedure before the High Court and several rules of  evidence applicable to trial of an election petition. What  directions __ principal and incidental __ can be made and issued  by the High Court in its judgment disposing of an election  petition and the grounds on which such directions can be

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founded are provided for. Chapter IV lays down the rules  governing the discretion of the court in the matter of permitting  withdrawal of election petitions and the procedure relating  thereto.  Provision is made as to when and subject to what  procedure an election petition would abate or substitution would  be permitted in case of death of a party to the election petition.   Chapter V deals with costs and security for costs. Right of appeal  and procedure relating thereto are contained in Chapter IVA.   

Two points of significance deserve to be noted and  highlighted. On all the subjects, suggested by the titles given to  the different Chapters, provisions are already available in the  CPC which is a pre-existing law. An election petition is a civil trial  and if the Parliament had so wished, all the aspects of trial  included in Part VI could have been left to be taken care of by  the pre-existing law, that is, the CPC. However, the Parliament  has chosen to enact separate and independent provisions  applicable to the trial of election petitions and placed them in the  body of the Act.   

Section 87 of the Act provides as under :-

"87. Procedure before the High Court.-(1)   Subject to the provisions of this Act and of any rules  made thereunder,  every election petition shall be  tried by the High Court, as nearly as may be, in  accordance with the procedure applicable under the  Code of Civil Procedure, 1908 (5 of 1908) to the trial  of suits:

       Provided that the High Court shall have the  discretion to refuse, for reasons to be recorded in  writing, to examine any witness or witnesses if it is  of the opinion that the evidence of such witness or  witnesses is not material for the decision of the  petition or that the party tendering such witness or  witnesses is doing so on frivolous grounds or with a  view to delay the proceedings.

(2)  The provisions of the Indian Evidence Act, 1872  (1 of 1872), shall, subject to the provisions of this  Act, be deemed to apply in all respects to the trial of  an election petition." (emphasis supplied)

"86. Trial of election petitions.__   (1) to (5)      xxx             xxx             xxx (6)     The trial of an election petition shall, so far as  is practicable consistently with the interests of  justice in respect of the trial, be continued  from day to day until its conclusion, unless the  High Court finds the adjournment of the trial  beyond the following day to be necessary for  reasons to be recorded.

(7)     Every election petition shall be tried as  expeditiously as possible and endeavour shall  be made to conclude the trial within six months  from the date on which the election petition is  presented to the High Court for trial."  (emphasis supplied)

       Sub-section (6) of Section 86 of the Act requires trial of an  election petition to be continued from day to day until its

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conclusion, so far as is practicable consistently with the interests  of justice in respect of the trial, unless the High Court finds the  adjournment of the trial beyond the following day to be  necessary for reasons to be recorded.  Sub-section (7) requires  every election petition to be tried as expeditiously as possible  with an endeavour to conclude the trial within six months from  the date of presentation of the election petition. Thus, the  procedure provided for the trial of civil suits by the CPC is not in  its entirety applicable to the trial of election petitions.  The  applicability of the procedure is circumscribed by two riders;   firstly, the CPC procedure is applicable "as nearly as may be";   and secondly,  the CPC procedure would give way to any  provisions of the Act and of any rules made thereunder.    

       Section 169 of the Act confers power on the Central  Government to make rules for carrying out the purposes of the  Act. The Central Government is empowered to make rules which  may govern the procedure of trial of election petitions. Although,  this subject is not specifically mentioned as one of the matters in  sub-section (2) which specifies the topics on which the Central  Government may frame rules, however, clause (i) of sub-section  (2) is a residuary clause which empowers the Central  Government to frame rules regarding  "any other matter  required to be prescribed by this Act."  Sub-section (1) of  Section 87 of the Act also gives an indication that the statute  contemplates the framing of rules under the Act to govern the  procedure of trials before the High Court, which, read with the  Preamble to the Act, is the source of power for making the rules  laying down the procedure for the trial of election petitions.   There is no provision in the Act which empowers the High Court  to frame the rules governing the procedure of trials before the  High Court.  However, the High Court is not entirely powerless in  the matter of framing the rules of procedure.  Article 225 of the  Constitution of India confers powers on the High Court, inter  alia, to make rules of court for the purpose of hearing, trying  and deciding any matter lying within the jurisdiction of the High  Court. The High Court can thus frame rules of procedure  regarding the trial of election petitions under Article 225 of the  Constitution.  This source of power emanates from the  Constitution and is, therefore, very potent. Section 129 of CPC is  another source of power of High Court to make rules to regulate  its own procedure in the exercise of its original civil jurisdiction.   This will include election petitions also as they are tried in the  original civil jurisdiction of the High Court.   

The Allahabad High Court has framed several rules in  exercise of the powers conferred by Article 225 of the  Constitution. Chapter XV-A, consisting of 13 Rules and entitled  "Special provisions relating to the trial of election petitions", was  added in the body of the rules vide notification dated 7.3.1967.   Following Rules are relevant for our purpose  and hence are  extracted and reproduced hereunder :-

"1. Scope.\027The provisions of this Chapter shall  govern the trial of election petitions under the  Representation of the People Act, 1951.

                xxx             xxx            xxx 5. Issue of notice to respondent.\027The election  petition shall be laid before the Bench so constituted  without delay,  and unless it is dismissed under sub- section (1) of Section 86 of the Act or for being  otherwise defective,  the Bench may direct issue of  notice to the respondent to appear and answer the  claim on a date to be specified therein.    Such notice

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shall also direct that if he wishes to put up a defence  he shall file his written statement together with a list  of all documents, whether in his possession or power  or not, upon which he intends to rely as evidence in  support of his defence on or before the date fixed;   and further,  that in default of appearance being  entered on or before the date fixed in the notice the  election petition may be heard and determined in his  absence.   The notice shall be in Form No. 34-A.

        xxx             xxx            xxx 12. Court’s power to give directions in matters  of practice and procedure.\027The Bench may,  consistently with the provisions of Section 87 of the  Act, give such directions in matters of practice and  procedure (including the recording of evidence) as it  shall consider just and expedient."

       A perusal of the several provisions made by the High Court  Rules goes to show that the Rules touch many a subject on  which provisions are found in the Act itself.  Suffice it to observe  that in case of conflict, the provisions of the Act and the  provisions of the High Court Rules shall, as far as may be, be  harmoniously construed avoiding the conflict, if any, and if the  conflict be irreconcilable the provisions contained in the Act  being primary legislation shall prevail over the provisions  contained in the High Court Rules framed in exercise of  delegated power to legislate.  No such conflict is noticeable, so  far as the present case is concerned.

’Trial’ of election petition, when it commences?

       At this point the question arises : When does the trial of an  election petition commence or what is the meaning to be  assigned to the word ’trial’ in the context of an election petition?    In a civil suit, the trial begins when issues are framed and the  case is set down for recording of evidence. All the proceedings  before that stage are treated as proceedings preliminary to trial  or for making the case ready for trial. As held by this Court in  several decided cases, this general rule is not applicable to the  trial of election petitions as in the case of election petitions, all  the proceedings commencing with the presentation of the  election petition and upto the date of decision therein are  included within the meaning of the word ’trial’.    

       In Harish Chandra Bajpai  v.  Triloki Singh 1957 SCR  370, the narrow and wider sense in which the word ’trial’ is used  came up for consideration of the Court.  In its narrow or limited  sense, ’trial’ means the final hearing of the petition consisting of  examination of witnesses, filing documents and addressing  arguments. In its wider sense, the word ’trial’ indicates the  entire proceeding from the time when the petition comes before  the court until the pronouncement of decision.  In the context of  an election petition, it was held that the word ’trial’ must  necessarily include the matters preliminary to the hearing, such  as settlement of issues, issuance of directions and the like.  With  the receipt of the petition in the High Court, various steps have  to be taken before the stage can be set for hearing it. The  respondent has to file his written statement and issues have to  be settled.  The stages of discovery and inspection, enforcing  attendance of witnesses and compelling the production of  documents do not form part of the hearing in a trial governed by  the CPC but precede it.  For the purpose of an election petition,  the word ’trial’ includes the entire proceedings commencing from  the time of receipt of the petition until the pronouncement of the

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judgment.  It was held that hearing of an application under  Order VI Rule 17 of the CPC for amending the pleadings would  be a stage in the trial of an election petition.

       In Om Prabha Jain  v.  Gian Chand and another 1959  Supp. (2) SCR 516, also this Court refused to assign a restrictive  meaning to the word ’trial’ in regard to election petitions while  interpreting Section 90(3) of the Act as it existed prior to the  1966 Amendment.   It was held that an order dismissing an  election petition at the very threshold under Section 90(3) for  non-compliance with Section 117 would be deemed to be an  order at a stage of trial. This view was reiterated by this Court  recently in Dipak Chandra Ruhidas v. Chandan Kumar  Sarkar (2003) 7 SCC 66, wherein it was held that to be an order  passed during the trial of an election petition it is not necessary  that at the time of passing of that order there must have been a  full dressed trial after taking evidence of the parties; even an  order dismissing an election petition summarily for non- compliance with the provisions of Section 81 or 82 or 117 is an  order passed during the trial of an election petition.   

Two decisions by High Courts deserve to be noticed.  They  are Duryodhan v. Sitaram & Ors. AIR 1970 Allahabad 1 (FB)  and Hari Vishnu Kamath v. Election Tribunal, Jabalpur &  Anr.  AIR 1958 MP 168.  Both the High Courts have taken the  view that the word ’trial’ undoubtedly has two meanings.  It may  mean the trial of a controversy that arises from an issue.  It may  equally mean the trial of an election petition covering the entire  process of the litigation from its first seisin by the tribunal (or  the Court) to its disposal and would include all the matters even  prior to the hearing of the election petition.  The matters relating  to service of summons, calling for and finalizing the pleadings  and settling the issues are all constituent stages of the trial. We  find ourselves in agreement with the meaning so assigned to the  word ’trial’ in the context of election petition.

Receiving written statement being part of ’trial’, time can  be extended

Once we are clear about the meaning of the word ’trial’ in  the context of election petition, certain consequences follow.   Sub-section (6) of Section 86 of the Act would empower the High  Court trying an election petition to adjourn the trial beyond the  following day if necessary and for reasons to be recorded. The  filing of a written statement being a stage in the trial of an  election petition, this provision would empower the High Court to  grant a reasonable time for filing of a written statement though  for reasons to be recorded. The availability of this power finds  support from Rules 5 and 12 of the High Court Rules.  Under  Rule 5, the High Court has power to fix a date for filing the  written statement which power would include the power to fix  such date not merely once but again and again depending on the  discretion of the High Court.   Power to extend time for filing the  written statement being a matter of practice and procedure the  High Court would be within its power to give such directions in  that regard as it shall consider just and expedient within the  meaning of Rule 12.  This discretion vested in the Court by Rules  made under Article 225 for purposes of any special act would not  be controlled by the proviso to sub-rule (1) of Order VIII of the  CPC.          This position of law does not admit of any doubt as was  held in Mohan Raj  v.  Surendra Kumar Taparia & Ors.  (1969) 1 SCR 630, that the CPC applies only subject to the  provisions of the Act and the rules made thereunder.  The

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question arose in the context of Sections 82 and 86 of the Act  whereunder a candidate against whom the allegations of corrupt  practices were made in the petition and so should have been  necessarily joined as respondent under Section 82 but was not  joined and Section 86 provides for mandatory dismissal of such a  petition.  It was held that the defect could not be cured by  invoking Order 1 Rule 10 or Order 6 Rule 17 of the CPC to avoid  the penalty of dismissal of the petition.  In Iridium India  Telecom Ltd. v. Motorola Inc. JT 2005 (1) SC 50, this Court  affirmed the view taken by a Division Bench of the Bombay High  Court that the amended provision of Order VIII, Rule 1 of the  CPC would not apply to the suits on the Original Side of the High  Court and such suits would continue to be governed by the High  Court (Original Side) Rules; the High Court Rules were framed in  exercise of the power conferred by Section 129 of the CPC and  the Letters Patent and, therefore, were saved by Section 4(1) of  the CPC.

       Section 87 of the Act is a guarded provision as its language  indicates. A few things are noteworthy for determining the  nature and character of the provision contained in Section 87. Its  title reads \026 "Procedure before the High Court".  The applicability  of the provision is \026 "subject to the provisions of this Act and of  any rules made thereunder".  The procedure prescribed by the  Code for the trial of suits is not just adopted, and as if  incorporated into the Act, so as to govern the trial of election  petition.  The procedure applicable under the Code to the trial of  suits has been made applicable to the trial of every election  petition "as nearly as may be".  The language of sub-Section (1)  of Section 87 has to be read in juxtaposition with the language  of sub-Section (2), whereby the provisions of the Indian  Evidence Act, 1872 have been made applicable in respect to the  trial of an election petition by providing that they shall "be  deemed to apply in all respects to the trial of an election  petition".

       In Tarlok Singh v. Municipal Corporation of Amritsar  & Anr. (1986) 4 SCC 27, Section 384 of the Punjab Municipal  Corporation Act, 1976 came up for the consideration of the  Court.  It provided for the procedure in the Code, in regard to  suits, being followed, "as far as it can be made applicable", in  the disposal of certain matters under the Act.  The Court held  that the relevant provisions of the Code were made applicable  for the purposes of guidance of procedure and it is not expected  that the procedure of a suit was to be followed technically and  strictly in accordance with the provisions contained in the Code.   

In Direct Recruit Class II Engineering Officers’  Association v. State of Maharashtra & Ors. (1990) 2 SCC  715, the expression "as far as applicable" came up for the  consideration of the Court.  It was held that such expression had  the effect of making the rules or provisions contained elsewhere  applicable with realism and flexibility, true to life rather than  with abstract absolutism.  

       We are, therefore, of the opinion that, in view of Rules 5  and 12 framed under Article 225 for purposes of the Special Act,  the High Court is not powerless to extend the time for filing the  written statement simply because the time limit for filing the  written statement within the allowance permitted by the Proviso  to Order VIII Rule 1 of the CPC has come to an end.

Alternatively, Order VIII Rule 1 of CPC, mandatory or  directory?

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       This leads us to examine the alternative contention of the  learned senior counsel for the appellant that, in any event, Order  VIII Rule 1 of the CPC is not mandatory but directory in nature,  a submission on which both the learned counsel for the parties  have forcefully argued and the learned Amicus Curiae has also  made detailed submissions.

       The CPC which consolidated and amended the laws relating  to the procedure of the Courts of Civil Judicature in the year  1908, has in the recent times undergone several amendments  based on the recommendations of the Law Commission  displaying the anxiety of Parliament to secure an early and  expeditious disposal of civil suits and proceedings but 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) records the following  basic considerations which persuaded the Parliament in enacting  the amendments:-    (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.

By Code of Civil Procedure (Amendment) Act, 1999 (46 of  1999) 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.  As is well- known, there was stiff resistance from the members of the Bar  against enforcing such and similar other provisions sought to be  introduced by way of amendment and hence the Amendment Act  could not be promptly notified for enforcement.  The text of the  provision in the present form has been introduced by Code of  Civil Procedure (Amendment) Act, 2002 (22 of 2002) 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

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reasons to be recorded in writing, but which shall not  be later than ninety days from the date of service of  summons."

Three things are clear.  Firstly, a careful reading of the  language in which Order VIII, Rule 1 has been drafted, shows  that it 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.  Secondly, the nature of the provision contained in  Order VIII, Rule 1 is procedural.  It is not a part of the  substantive law. Thirdly, the object behind substituting Order  VIII, Rule 1 in the present shape is to curb the mischief of  unscrupulous defendants adopting dilatory tactics, delaying the  disposal of cases much to the chagrin of 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. The process of justice may be speeded up  and hurried but the fairness which is a basic element of justice  cannot be permitted to be buried.

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.  The observations made by Krishna Iyer, J. in  Sushil Kumar Sen v. State of Bihar  (1975) 1 SCC 774, are  pertinent:-         "The mortality of justice at the hands of law  troubles a Judge’s conscience and points an angry  interrogation at the law reformer.

       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. \005 Justice is the goal of  jurisprudence __ processual, as much as  substantive."

In The State of Punjab and Anr. v. Shamlal Murari  and Anr.  (1976) 1 SCC 719, the Court approved in no  unmistakable terms the approach of moderating into wholesome  directions what is regarded as mandatory on the principle that  "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."  In Ghanshyam Dass and  Ors.  v.  Dominion of India and Ors. (1984) 3 SCC 46, the  Court reiterated the need for interpreting a part of the adjective

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law dealing with procedure alone in such a manner as to sub- serve and advance the cause of justice rather than to defeat it  as all the laws of procedure are based on this principle.

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  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.

In Sangram Singh v.  Election Tribunal, Kotah & Anr.  (1955) 2 SCR 1, this Court highlighted 3 principles while  interpreting any portion of  the CPC. They are:

(i)     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.

(ii)    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.

(iii)   No forms or procedure should ever be  permitted to exclude the presentation of  the litigant’s defence unless there be an  express provision to the contrary.                           Our attention has also been invited to a few other  provisions such as Rules 9 and 10 of Order VIII.  In spite of the  time limit appointed by Rule 1 having expired, the court is not  powerless to permit a written statement being filed if the court  may require such written statement.  Under Rule 10, the court  need not necessarily pronounce judgment against the defendant  who failed to file written statement as required by Rule 1 or Rule  9.  The court may still make such other order in relation to the  suit as it thinks fit.

As stated earlier, Order VIII, Rule 1 is a provision

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contained in the CPC and hence belongs to the domain of  procedural law.  Another feature noticeable in the language of  Order VIII Rule 1 is that although it appoints a time within which  the written statement has to be presented and also restricts the  power of the Court by employing language couched in a negative  way that the extension of time appointed for filing the written  statement was not to be later than 90 days from the date of  service of summons yet it does not in itself provide for penal  consequences to follow if the time schedule, as laid down, is not  observed.  From these two features certain consequences follow.   

Justice G.P. Singh notes in his celebrated work "Principles  of Statutory Interpretation" (Ninth Edition, 2004) while dealing  with mandatory and directory provisions - "The Study of  numerous cases on this topic does not lead to formulation of any  universal rule except this that language alone most often is not  decisive, and regard must be had to the context, subject-matter  and object of the statutory provision in question, in determining  whether the same is mandatory or directory.  In an oft-quoted  passage LORD CAMPBELL said: ’No universal rule can be laid  down as to whether mandatory enactments shall be considered  directory only or obligatory with an implied nullification for  disobedience.  It is the duty of Courts of justice to try to get at  the real intention of the Legislature by carefully attending to the  whole scope of the statute to be considered’." (p. 338) "For  ascertaining the real intention of the Legislature", points out  SUBBARAO, J. "the court may consider inter alia, the nature and  design of the statute, and the consequences which would follow  from construing it the one way or the other; the impact of other  provisions whereby the necessity of complying with the  provisions in question is avoided; the circumstances, namely,  that the statute provides for a contingency of the non- compliance with the provisions; the fact that the non-compliance  with the provisions is or is not visited by some penalty; the  serious or the trivial consequences, that flow therefrom; and  above all, whether the object of the legislation will be defeated  or furthered".  If object of the enactment will be defeated by  holding the same directory, it will be construed as mandatory,  whereas if by holding it mandatory serious general  inconvenience will be created to innocent persons without very  much furthering the object of enactment, the same will be  construed as directory." (pp. 339-340)

Two decisions, having a direct bearing on the issue arising  for decision before us, have been brought to our notice, one  each by the learned counsel for either party.  The learned senior  counsel for the appellant submitted that in Topline Shoes Ltd.  v. Corporation Bank (2002) 6 SCC 33, pari materia provision  contained in Section 13 of the Consumer Protection Act, 1986  came up for the consideration of the Court.  The provision  requires the opposite party to a complaint to give his version of  the case within a period of 30 days or such extended period not  exceeding 15 days as may be granted by the District Forum. The  Court took into consideration the Statement of Objects and  Reasons and the legislative intent behind providing a time frame  to file reply and held : (i) that the provision as framed was not  mandatory in nature as no penal consequences are prescribed if  the extended time exceeds 15 days and; (ii) that the provision  was directory in nature and could not be interpreted to mean  that in no event whatsoever the reply of the respondent could be  taken on record beyond the period of 45 days.     The Court further held that the provision is more by way  of procedure to achieve the object of speedy disposal of such  disputes.  The strong terms in which the provision is couched

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are an expression of ’desirability’ but do not create any kind of  substantive right in favour of the complainant by reason of delay  so as to debar the respondent from placing his version in  defence in any circumstances whatsoever.   

In our opinion, the view of the law so taken by this Court  squarely applies to the issue before us and we find ourselves in  agreement with the law stated by the two-Judge Bench of this  Court in the case of Topline Shoes Ltd. (supra).  

The learned counsel for the respondent, on the other  hand, invited our attention to a three-Judge Bench decision of  this Court in Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi  (2002) 6 SCC 635, wherein we find a reference made to Order  VIII, Rule 1 of the CPC vide paras 14 and 15 thereof and the  Court having said that the mandate of the law is required to be  strictly adhered to. A careful reading of the judgment shows that  the provisions of Order VIII, Rule 1 of the CPC did not directly  arise for consideration before the Court and to that extent the  observations made by the Court are obiter. Also, the attention of  the Court was not invited to the earlier decision of this Court in  Topline Shoes Ltd. case (supra).  

It was submitted by the senior learned counsel for the  appellant that there may be cases and cases which cannot be  foretold or thought of precisely when grave injustice may result  if the time limit of days prescribed by Order VIII, Rule 1 was  rigidly followed as an insurmountable barrier. The defendant  may have fallen sick, unable to move; may be he is lying  unconscious. Also, the person entrusted with the job of  presenting a written statement, complete in all respects and on  his way to the court, may meet with an accident.  The  illustrations can be multiplied.  If the schedule of time as  prescribed was to be followed as a rule of thumb, failure of  justice may be occasioned though for the delay, the defendant  and his counsel may not be to blame at all.  However, the  learned counsel for  respondent No.1 submitted that if the court  was to take a liberal view of the provision and introduce  elasticity into the apparent rigidity of the language, the whole  purpose behind enacting Order VIII, Rule 1 in the present form  may be lost.  It will be undoing the amendment and restoring  the pre-amendment position, submitted the learned counsel.

We find some merit in the submissions made by the  learned counsel for both the parties.  In our opinion, the solution  __ and the correct position of law __ lie somewhere midway and  that is what we propose to do placing a reasonable construction  on the language of Order VIII, Rule 1.

Considering the object and purpose behind enacting Rule  1 of Order VIII in the present form and the context in which the  provision is placed, we are of the opinion that the provision has  to be construed as directory and not mandatory.  In exceptional  situations, the court may extend the time for filing the written  statement though the period of 30 days and 90 days, referred to  in the provision, has expired.  However, we may not be  misunderstood as nullifying the entire force and impact \026 the  entire life and vigour \026 of the provision. The delaying tactics  adopted by the defendants in law courts are now proverbial as  they do stand to gain by delay.  This is more so in election  disputes because by delaying the trial of election petition, the  successful candidates may succeed in enjoying the substantial  part, if not in its entirety, the term for which he was elected  even though he may loose the battle at the end.  Therefore, the  judge trying the case must handle the prayer for adjournment

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with firmness.  The defendant seeking extension of time beyond  the limits laid down by the provision may not ordinarily be  shown indulgence.

Ordinarily, the time schedule prescribed by Order VIII,  Rule 1 has to be honoured.  The defendant should be vigilant.   No sooner the writ of summons is served on him he should take  steps for drafting his defence and filing the written statement on  the appointed date of hearing without waiting for the arrival of  the date appointed in the summons for his appearance in the  Court.  The extension of time sought for by the defendant from  the court whether within 30 days or 90 days, as the case may  be, should not be granted just as a matter of routine and merely  for asking more so, when the period of 90 days has expired.   The extension can be only by way of an exception and for  reasons assigned by the defendant and also recorded in writing  by the Court to its satisfaction.  It must be spelled out that a  departure from the time schedule prescribed by Order VIII, Rule  1 of the Code was being allowed to be made because the  circumstances were exceptional, occasioned by reasons beyond  the control of the defendant and such extension was required in  the interest of justice, and grave injustice would be occasioned if  the time was not extended.

A prayer seeking time beyond 90 days for filing the  written statement ought to be made in writing.  In its judicial  discretion exercised on well-settled parameters, the Court may  indeed put the defendants on terms including imposition of  compensatory costs and may also insist on affidavit, medical  certificate or other documentary evidence (depending on the  facts and circumstances of a given case) being annexed with the  application seeking extension of time so as to convince the Court  that the prayer was founded on grounds which do exist.

The extension of time shall be only by way of exception  and for reasons to be recorded in writing, howsoever brief they  may be, by the court. In no case, the defendant shall be  permitted to seek extension of time when the court is satisfied  that it is a case of laxity or gross negligence on the part of the  defendant or his counsel.  The court may impose costs for dual  purpose: (i) to deter the defendant from seeking any extension  of time just for asking and (ii) to compensate the plaintiff for the  delay and inconvenience caused to him.

However, no straitjacket formula can be laid down except  that the observance of time schedule contemplated by Order  VIII Rule 1 shall be the rule and departure therefrom an  exception, made for satisfactory reasons only.  We hold that  Order VIII Rule 1, though couched in mandatory form, is  directory being a provision in the domain of processual law.

We sum up and briefly state our conclusions as under:-  (i)     The trial of an election petition commences  from the date of the receipt of the election  petition by the Court and continues till the date  of its decision.  The filing of pleadings is one  stage in the trial of an election petition.  The  power vesting in the High Court to adjourn the  trial from time to time (as far as practicable  and without sacrificing the expediency and  interests of justice) includes power to adjourn  the hearing in an election petition affording  opportunity to the defendant to file written  statement.  The availability of such power in  the High Court is spelled out by the provisions

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of the Representation of the People Act, 1951  itself and Rules made for purposes of that Act  and a resort to the provisions of the CPC is not  called for.

(ii)     On the language of Section 87(1) of the Act, it  is clear that the applicability of the procedure  provided for the trial of suits to the trial of  election petitions is not attracted with all its  rigidity and technicality. The rules of procedure  contained in the CPC apply to the trial of  election petitions under the Act with flexibility  and only as guidelines.

(iii)   In case of conflict between the provisions of  the Representation of the People Act, 1951 and  the Rules framed thereunder or the Rules  framed by the High Court in exercise of the  power conferred by Article 225 of the  Constitution on the one hand, and the Rules of  Procedure contained in the CPC on the other  hand, the former shall prevail over the latter.

(iv)    The purpose of providing the time schedule for  filing the written statement under Order VIII,  Rule 1 of CPC is to expedite and not to scuttle  the hearing.  The provision spells out a  disability on the defendant.  It does not impose  an embargo on the power of the Court to  extend the time.  Though, the language of the  proviso to Rule 1 of Order VIII of the CPC is  couched in negative form, it does not specify  any penal consequences flowing from the non- compliance.  The provision being in the domain  of the Procedural Law, it has to be held   directory and not mandatory. The power of the  Court to extend time for filing the written  statement beyond the time schedule provided  by Order VIII, Rule 1 of the CPC is not  completely taken away.

(v)     Though Order VIII, Rule 1 of the CPC is a part  of Procedural Law and hence directory, keeping  in view the need for expeditious trial of civil  causes which persuaded the Parliament to  enact the provision in its present form, it is  held that ordinarily the time schedule  contained in the provision is to be followed as  a rule and departure therefrom would be by  way of exception.  A prayer for extension of  time made by the defendant shall not be  granted just as a matter of routine and merely  for asking, more so when the period of 90 days  has expired.  Extension of time may be allowed  by way of an exception, for reasons to be  assigned by the defendant and also be placed  on record in writing, howsoever briefly, by the  Court on its being satisfied.  Extension of time  may be allowed if it was needed to be given for  the circumstances which are exceptional,  occasioned by reasons beyond the control of  the defendant and grave injustice would be  occasioned if the time was not extended.   Costs may be imposed and affidavit or  documents in support of the grounds pleaded

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by the defendant for extension of time may be  demanded, depending on the facts and  circumstances of a given case.    In the case at hand, the High Court felt satisfied that  the reason assigned by the defendant-appellant in support  of the prayer for extension of time was good and valid.   However, the prayer was denied because the High Court  felt it had no power to do so. The written statement has  already been filed in the High Court. We direct that the  written statement shall now be taken on record but  subject to payment of Rs.5000/- by way of costs payable  by the appellant herein to respondent No.1 i.e. the  election petitioner in the High Court, within a period of 4  weeks from today.   The appeal stands allowed in the above terms.

No order as to the costs in this appeal. Before parting we would like to state that the issue  raised in this appeal arises frequently before the courts  and is of some significance affecting a large number of  cases, and so, in spite of the parties being represented by  learned counsel, we thought it fit to request Mr. Rakesh  Dwivedi, Senior Advocate and former Additional Solicitor  General of India to assist the Court as Amicus Curiae.  He  responded to the call of the Court and presented the case  from very many angles bringing to the notice of the Court  a volume of case law some of which we have referred to  hereinabove.  We place on record our appreciation of the  valuable assistance rendered by Mr. Rakesh Dwivedi,  Senior Advocate.