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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.