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CASE NO.:

Appeal (civil) 2925 of 2007

PETITIONER:

M/s R.N. Jadi & Brothers and Ors

RESPONDENT:

Subhashchandra

DATE OF JUDGMENT: 10/07/2007

BENCH:

Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 2925 OF 2007

(Arising out of SLP (C) No. 14606 OF 2006)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. The controversy lies within a very narrow compass. The

appellants-defendants were issued summons by the trial

Court. They did not file the written statement within 90 days

from the date of service of summons and there was a delay of

two days. The trial Court accepted the written statement

which was filed beyond 90 days despite the objection raised by

the plaintiff-respondent. The order of the trial Court was

challenged before the Karnataka High Court in a Writ Petition

under Article 227 of the Constitution of India, 1950 (in short

the 'Constitution') on the ground that the provision of Order

VIII Rule 1 of the Code of Civil Procedure, 1908 (in short the

'CPC) was mandatory and the trial Judge could not have

accepted the written statement filed beyond 90 days from the

date of service. The writ petition was allowed by order dated

30.8.2004. A Writ Appeal was filed which was held to be not

maintainable.

3. A review petition was filed taking the stand that in view

of a decision of this Court in Kailash v. Nanhku and Ors.

(2005 (4) SCC 480) where it was held that the provisions of

Order VIII Rule 1 CPC are directory, the reasons justifying the

delayed presentation of the written statement could be

satisfactorily explained. The High Court dismissed the review

petition on the ground that a case for review was not made

out. All the three orders are under challenge in this appeal.

4. Learned counsel for the appellants submitted that the

decision taken by the High Court is not sustainable in view of

law declared by this Court.

5. Learned counsel for the respondent on the other hand

supported the orders of the High Court.

6. 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

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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."

7. 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 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."

8. 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

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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.

9. 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.

10. The mortality of justice at the hands of law troubles a

Judge's conscience and points an angry interrogation at the

law reformer.

11. The processual law so dominates in certain systems as to

overpower substantive rights and substantial justice. The

humanist rule that procedure should be the handmaid, not

the mistress, of legal justice compels consideration of vesting a

residuary power in judges to act ex debito 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].

12. 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)].

13. 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.

14. 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

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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.

15. 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

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

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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. "

16. The position was examined in details in Kailash's case

(supra) and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and

Others (2005(6) SCC 705).

17. 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), Ohammod Gazi v. State of M.P. and others

(2000(4) SCC 342) and Shaikh Salim Haji Abdul Khayumsab

v. Kumar and Ors. (2006 (1) SCC 46).

18. The matter can be looked at from another angle.

Undisputedly, the trial Court had granted time upto 8.6.2004

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which undisputedly fell beyond 90 days. There is no dispute

that the written statement was filed on 8.6.2004.

19. In view of what has been stated above, we set aside the

impugned orders of the High Court. The written statement

already filed shall be duly taken note of by the trial Court. The

appeal is allowed but without any order as to costs.