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Code of Civil Procedure, 1908-Order VIII Rule 1 (as amended by Civil Procedure Code (Amendment) Act, 1999)-Written statement-Filing of-Extended time granted by Court beyond prescribed period-The extended date being holiday, written statement filed on the next day-Refusal by Court to accept, the same being beyond 90 days-Writ Petition-High Court held the Written Statement as unacceptable-On appeal, held: The Court could not have refused to accept the written statement as it was within the time granted by it-Party cannot suffer for the mistake of the Court-The provision being procedural, the same should not be construed as mandatory-It is always subservient to and in aid to justice. Interpretation of Statutes : Procedural Law-Interpretation of-Held: Unless compelled by express and specific language of the statute, procedural enactment ought not be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice-It should not ordinarily be construed as mandatory-Merely because a provision is couched in a negative language implying mandatory character, the same is not without exceptions-It is subservient to and is in aid of justice-Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Maxims: “actus curiae neminem gravabit” and “lex non cogit ad impossibilia”-Applicability of. In a civil suit filed by respondent No.1-plaintiff, appellants- defendants were directed to file Written Statement. On their having not filed the same within time, they sought extension of time to file the same. Time was allowed till 19.2.2004 which fell beyond 90 days. That date being a holiday, appellants filed the Written Statement the next day. Trial Court refused to accept the same on the ground that the Written Statement was filed beyond the period of 90 days. Appellants filed Writ Petition, which was dismissed on the ground 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 CPC by Civil Procedure Code (Amendment) Act, 1999. In appeal to this Court appellants contended that Court itself had granted time to file Written Statement by 19.2.2004, and that date being holiday, Written Statement having been filed the next day, the view taken by the courts below was untenable. =Allowing the appeal, the Court HELD: 1.1. Order VIII Rule 1 CPC 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 by 1999 amendment 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. [355-c, d, e] 1.2. 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. [355-f, g] 1.3. 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. [355-h; 356-a] Sushil Kumar Sen v. State of Bihar, [1975] 1 SCC 774, referred to. 1.4. 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. [356-b] Blyth v. Blyth [1966] 1 All E.R. 524 (HL), referred to. 1.5. 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. [356-c] Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred to. 1.6. 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. [356-e-f] Kailash v. Nanhku [2005] 4 SCC 480 and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors., [2005] 6 SCC 705, relied on. Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2002) 9 SC 175 and Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2005) 6 SC 486, referred to. 2.1. The trial court had granted time up to 19.2.2004 which undisputedly fell beyond the 90 days’ period. Since 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. [358-e, f] 2.2. 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 beyond 90 days. [358-g] Kailash v. Nanhku, [2005] 4 SCC 480 and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors., [2005] 6 SCC 705, relied on. 2.3. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit – 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 – 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. [358-h; 359-a] Raj Kumar Dev v. Tarapada Dev, [1987] 4 SCC 398, Gursharan Singh v. New Delhi Municipal Committee, [1996] 2 SCC 459 and Mohammod Gazi v. State of M.P. and Ors., [2004] 4 SCC 342, referred to. Siddarth Luthra, Sher Singh, Pramod Dubey and Ms. Ruby Singh Ahuja for the Appellant. N.S. Gahlot, R.K. Singh, Jatinder Kumar Bhatia, B.S. Jain, Ajay Veer Singh, Ms. Charuwali Khanna and Dr. (Mrs.) Vipin Gupta for the Respondents.

CASE NO.:
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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 
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 
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 - 
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 
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 
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  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  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.

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