http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (civil)  5066 of 2005

PETITIONER: Smt. Rani Kusum                                                  

RESPONDENT: Smt. Kanchan Devi and Ors.                               

DATE OF JUDGMENT: 16/08/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 377 OF 2005)

ARIJIT PASAYAT, J.  

       Leave granted.

       Order passed by a learned Single Judge of the Patna  High Court is the subject-matter of challenge in this  appeal.  By the impugned order the learned Single Judge  found no substance in the plea of the appellant that there  was non-compliance with the requirements of Order VIII Rule  1 of the Code of Civil Procedure, 1908 (in short ’CPC’) as  amended by the Code of Civil Procedure (Amendment) Act, 2002  (in short the ’Amendment Act’).

       Factual position is almost undisputed and, therefore,  need not be elaborated.  

       Respondent was served with summons issued by the trial  Court on 10.11.2003 and the written statement was filed on  10.7.2004.  According to the learned counsel for the  appellant, the written statement should not have been  entertained as it was filed beyond 30 days (which  is the  normal period) and even beyond 90 days which is the maximum  period.  By order dated 12.8.2004 learned Subordinate Judge  accepted the written statement which had been filed and  rejected the prayer of the appellant to reject the written  statement filed.  According to the appellant after amendment  of CPC the Court has no discretion to extend the period for  filing the written statement beyond 90 days from the date of  service of summons even where the Court extends the time  beyond 30 days.  

       Learned counsel for the appellant submitted that the  amendment requiring filing of the written statement within  the stipulated time is intended to avoid delay in disposal  of suits and to avoid unnecessary harassment to the  litigants.  Learned counsel for the respondents on the other  hand submitted that the provisions of Order VIII Rule 1 of  CPC are directory and when written statement has already  been filed and accepted by the trial Court, the High Court  has rightly rejected appellant’s plea.          The scope and ambit of Order VIII Rule 1 of CPC has  been examined in detail by this Court in Kailash v. Nanhku  and Ors. (2005 (4) SCC 480).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

       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 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’) highlight   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."

By Code of Civil Procedure (Amendment) Act, 1999 (46  of 1999) (in short the ’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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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."

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 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.  

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 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. - Justice is the goal of jurisprudence -  processual, as much as substantive. (See Sushil Kumar Sen v.  State of Bihar (1975 (1) SCC 774).

       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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

Rajesh and Ors. (AIR 1998 SC 1827)

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.   

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.

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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.   

       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. "

       In Topline Shoes Ltd. v. Corporation Bank  [(2002) 6 SCC 33], the question for  consideration was whether the State Consumer  Disputes Redressal Commission could grant time  to the respondent to file reply beyond total  period of 45 days in view of Section 13(2) of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

the Consumer Protection Act, 1986.  It was held  that the intention to provide time frame to  file reply is really made to expedite the  hearing of such matters and avoid unnecessary  adjournments.  It was noticed that no penal  consequences had been prescribed if the reply  is not filed in the prescribed time.  The  provision was held to be directory.  It was  observed that the provision is more by way of  procedure to achieve the object of speedy  disposal of the case.

       The use of the word ’shall’ in Order VIII  Rule 1 by itself is not conclusive to determine  whether the provision is mandatory or  directory. We have to ascertain the object  which is required to be served by this  provision and its design and context in which  it is enacted.  The use of the word ’shall’ is  ordinarily indicative of mandatory nature of  the provision but having regard to the context  in which it is used or having regard to the  intention of the legislation, the same can be  construed as directory.  The rule in question  has to advance the cause of justice and not to  defeat it. The rules of procedure are made to  advance the cause of justice and not to defeat  it.  Construction of the rule or procedure  which promotes justice and prevents miscarriage  has to be preferred.  The rules or procedure  are handmaid of justice and not its mistress.   In the present context, the strict  interpretation would defeat justice.   

       In construing this provision, support can  also be had from Order VIII Rule 10 which  provides that where any party from whom a  written statement is required under Rule 1 or  Rule 9, fails to present the same within the  time permitted or fixed by the Court, the Court  shall pronounce judgment against him, or make  such other order in relation to the suit as it  thinks fit.  On failure to file written  statement under this provision, the Court has  been given the discretion either to pronounce  judgment against the defendant or make such  other order in relation to suit as it thinks  fit.  In the context of the provision, despite  use of the word ’shall’, the court has been  given the discretion to pronounce or not to  pronounce the judgment against the defendant  even if written statement is not filed and  instead pass such order as it may think fit in  relation to the suit.  In construing the  provision of Order VIII Rule 1 and Rule 10, the  doctrine of harmonious construction is required  to be applied.  The effect would be that under  Rule 10 of Order VIII, the court in its  discretion would have power to allow the  defendant to file written statement even after  expiry of period of 90 days provided in Order  VIII Rule 1.  There is no restriction in Order  VIII Rule 10 that after expiry of ninety days,  further time cannot be granted.  The Court has  wide power to ’make such order in relation to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

the suit as it thinks fit’. Clearly, therefore,  the provision of Order VIII Rule 1 providing  for upper limit of 90 days to file written  statement is directory.  Having said so, we  wish to make it clear that the order extending  time to file written statement cannot be made  in routine.  The time can be extended only in  exceptionally hard cases.  While extending  time, it has to be borne in mind that the  legislature has fixed the upper time limit of  90 days.  The discretion of the Court to extend  the time shall not be so frequently and  routinely exercised so as to nullify the period  fixed by Order VIII Rule 1."

       The Bench in para 54 after considering the Committee’s  report has observed as follows:

       "Having regard to the constitutional  obligation to provide fair, quick and speedy  justice, we direct the Central Government to  examine the aforesaid suggestions and submit  a report on this Court within four months."

                        After elaborating the purpose for introduction of Order  VIII Rule 1, this Court in Kailash’s Case (supra) at  paragraph 45 observed that no straightjacket formula can be  laid down except that observance of time schedule  contemplated by Order VIII Rule 1 shall be the rule and  departure therefrom an exception, made for satisfactory  reasons only. The conclusions have been summed up in Para  46. The relevant portion reads as follows:  

"(iv) the purpose of providing the time  schedule for filing the written statement  under Order VIII Rule 1 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 Order VIII  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 CPC is  not completely taken away.  

(v) Though Order VIII Rule 1 CPC is a part of  procedural law and hence directory, keeping  in view the need for expeditious trial of  civil cases which persuaded 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

merely for the 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 is needed to be given for 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 by the defendant for  extension of time may be demanded, depending  on the facts and circumstances of a given  case."

         In view of the above, the appeal is without merit and  is dismissed but without any order as to costs.