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CASE NO.: Appeal (civil)  6907 of 2005

PETITIONER: Mr. Shaikh Salim Haji Abdul Khayumsab                    

RESPONDENT: Mr. Kumar & Ors.                                                         

DATE OF JUDGMENT: 18/11/2005

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 15807 of 2004) With

Civil Appeal No.6918 of 2005 (Arising out of SLP (C) No. 16523/2004)

ARIJIT PASAYAT, J.

       Leave granted.  

       Both the appeals involve identical issues except that  appellant Shaikh Salim Haji Abdul Khayumsab was respondent  No. 15 in the suit and appellant  Kanti  Lal was  defendant  No. 1.

       Challenge in these appeals is to judgment rendered by a  learned Single judge of the Bombay High Court in WP Nos.  2500 and 2501 of 2004.  The writ Petitions filed by the  present appellants were dismissed by learned single judge  holding that the trial court was right in its view that  there was no scope for granting extension of time beyond the  period of 90 days to file the written statement, in view of  the amendment to the Code of Civil Procedure, 1908 (in short  the ’CPC’) by Civil Procedure Code (Amendment) Act, 1999 (in  short the 1999 ’Amendment Act’). Factual background needs to  be noted in brief.                  In a suit for partition, separate possession and  perpetual injunction the appellants were arrayed as  defendant Nos. 15 & 1.  The suit filed by respondent No. 1  was Special Civil Suit No. 144 of 2003 in the Court of Civil  Judge (Senior Division), Latoor. The appellants were  summoned under Order V Rule 1 & 5 CPC on 21st October,  2003.  They sought time to file the Written Statement and by  order dated 29th October, 2003 the trial court granted  time till 17.11.2003.  On the said date another application  was filed for extension of time to file the Written  Statement.  Time was allowed till 19.2.2004.  As 19.2.2004  was a holiday the written statement was filed on 20.2.2004.   Trial court refused to accept the written statement on the  ground that the written statement was filed beyond the  period of 90 days.  The appellants filed writ petitions  before the Bombay High Court, Aurangabad Bench which were  numbered as Writ Petition Nos.2500 and 2501 of 2004.  By the

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impugned order the High Court dismissed the Writ Petitions.   The logic as appears from the orders passed by the trial  court and the High Court is that there was no scope for  granting time to file written statement beyond the  prescribed period of 90 days.   

       Learned counsel for the appellants submitted that when  the court itself had granted time to file the written  statement by 19.2.2004 and that being a holiday the written  statement was filed on 20.2.2004, the view taken that the  written statement could not have been filed within 90 days  is clearly untenable.

       Learned counsel appearing for the respondent supported  the order passed by the trial court and the High Court.

       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’) 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."

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

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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."

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 -

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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.  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

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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 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

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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 Kailash v. Nanhku (2005(4) SCC 480) and Rani Kusum  (Smt.) v. Kanchan Devi (Smt.) and Others (2005(6) SCC 705)  similar view was expressed.

                  The matter can be looked at another angle.   Undisputedly the trial court had granted time up to  19.2.2004 which undisputedly fell beyond the 90 days’  period.  Since the 19.2.2004 happened to be a holiday, the  Written Statement was filed on the next day.  Had the  Written Statement been filed on 19.2.2004, obviously the  court could not have refused to accept the written statement  as it was within the time granted by it.  Merely because of  a fortuitous circumstance the written statement came to be  filed next day i.e. on account of the date fixed being a  holiday that cannot make the Written Statement, filed,  unacceptable.

       Learned counsel for the respondent submitted that the  Court could not have granted time beyond 90 days.  This plea  is untenable in view of what has been stated in Kailash’s  case (supra) and Rani Kusum’s case (supra).  Additionally a  party cannot be made to suffer if the court has committed a  mistake if for the sake of argument it is held that the  Court had mistakenly granted time.

       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) and Mohammod Gazi v.  State of M.P. and others (2000(4) SCC 342).

                The High Court’s orders are clearly indefensible and  are set aside. The appeals are allowed but without any order  as to costs.