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Code of Civil Procedure, 1908-Order VIII, Rule 1 (As amended by Code of Civil Procedure (Amendment) Act, 2002-Written statement filed beyond maximum period-Acceptance of-Held: It was in discretion of court-Amended Order VIII, Rule 1 though worded in negative form, was not mandatory keeping in view the context in which it was enacted-Neither the power of Court to take on record written statement filed beyond time is specifically taken away nor consequences of non-extension of time specifically provided for. Respondent was served with summons issued by the trial court. They filed their written statement beyond 90 days, which was the magimum period allowed, apart from the normal period of 30 days from the date of service of summons. Appellant objected to same. However, Trial Court accepted the written statement, and High Court dismissed appeal of appellant against same. Hence the present appeal. Appellant contended that after substitution of Order VIII, Rule 1 by Code of Civil Procedure (Amendment), 2002, the court had no discretion to extend the period for filing the written statement beyond the maximum period. =Dismissing the appeal, the Court HELD : 1. Order VII, 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 l 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. [756-C, D, E] Sushil Kumar Sen v. State of Bihar, [1975] 1 SCC 774; Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred to. Blyth v. Blyth, 1966 1 All. E.R. 524 (HL), referred to. 2. 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 negative form. [757-E, F] Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2005) 6 SC 486, followed. Kailash v. Nankhu and Ors., [2005] 4 SCC 480, relied on. Nishakant Pandey and Alok Kumar for the Appellant. Aman Lekhi, Rajiv Ranjan Dwivedi, Nagendra Kumar, Harish Pandey, Syamel Kumar, Rakesh Kumar and Jaspreet Singh Rai for the Respondents.

CASE NO.:
Appeal (civil) 5066 of 2005
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PETITIONER:
Smt. Rani Kusum 

RESPONDENT:
Smt. Kanchan Devi and Ors. 

DATE OF JUDGMENT: 16/08/2005

BENCH:
ARIJIT PASAYAT & H.K. SEMA

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

ARIJIT PASAYAT, J. 

 Leave granted.

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

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

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

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

 The CPC enacted in 1908 consolidated and amended the 
laws relating to the procedure of the Courts of Civil 
Judicature. It has undergone several amendments by several 
Acts of Central and State Legislatures. Under Section 122 
CPC the High Courts have power to amend by rules, the 
procedure laid down in the Orders. In exercise of these 
powers various amendments have been made in the Orders by 
various High Courts. Amendments have also been made keeping 
in view recommendations of Law Commission. Anxiety of 
Parliament as evident from the amendments is to secure an 
early and expeditious disposal of civil suits and 
proceedings without sacrificing the fairness of trial and 
the principles of natural justice in-built in any 
sustainable procedure. The Statement of Objects and Reasons 
for enacting Code of Civil Procedure (Amendment) Act, 1976 
(104 of 1976) (in short '1976 Amendment Act') highlight 
following basic considerations in enacting the amendments:-

(i) with the accepted principles of 
natural justice that a litigant 
should get a fair trial in 
accordance;

(ii) that every effort should be made to 
expedite the disposal of civil suits 
and proceedings, so that justice may 
not be delayed;

(iii) that the procedure should not be 
complicated and should, to the utmost 
extent possible, ensure fair deal to 
the poorer sections of the community 
who do not have the means to engage a 
pleader to defend their cases."

By Code of Civil Procedure (Amendment) Act, 1999 (46 
of 1999) (in short the 'the 1999 Amendment Act') the text of 
Order VIII, Rule 1 was sought to be substituted in a manner 
that the power of court to extend the time for filing the 
written statement was so circumscribed as would not permit 
the time being extended beyond 30 days from the date of 
service of summons on the defendant. Due to resistance from 
the members of the Bar against enforcing such and similar 
other provisions sought to be introduced by way of 
amendment, the Amendment Act could not be promptly notified 
for enforcement. The text of the provision in the present 
form has been introduced by the Amendment Act with effect 
from 1.7.2002. The purpose of such like amendments is 
stated in the Statement of Objects and Reasons as "to 
reduce delay in the disposal of civil cases".

The text of Order VIII, Rule 1, as it stands now, 
reads as under: -

"1. Written statement.- The defendant shall, 
within thirty days from the date of service 
of summons on him, present a written 
statement of his defence:

 Provided that where the defendant fails 
to file the written statement within the said 
period of thirty days, he shall be allowed to 
file the same on such other day, as may be 
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 Topline Shoes Ltd. v. Corporation Bank 
[(2002) 6 SCC 33], the question for 
consideration was whether the State Consumer 
Disputes Redressal Commission could grant time 
to the respondent to file reply beyond total 
period of 45 days in view of Section 13(2) of 
the Consumer Protection Act, 1986. It was held 
that the intention to provide time frame to 
file reply is really made to expedite the 
hearing of such matters and avoid unnecessary 
adjournments. It was noticed that no penal 
consequences had been prescribed if the reply 
is not filed in the prescribed time. The 
provision was held to be directory. It was 
observed that the provision is more by way of 
procedure to achieve the object of speedy 
disposal of the case.

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

 In construing this provision, support can 
also be had from Order VIII Rule 10 which 
provides that where any party from whom a 
written statement is required under Rule 1 or 
Rule 9, fails to present the same within the 
time permitted or fixed by the Court, the Court 
shall pronounce judgment against him, or make 
such other order in relation to the suit as it 
thinks fit. On failure to file written 
statement under this provision, the Court has 
been given the discretion either to pronounce 
judgment against the defendant or make such 
other order in relation to suit as it thinks 
fit. In the context of the provision, despite 
use of the word 'shall', the court has been 
given the discretion to pronounce or not to 
pronounce the judgment against the defendant 
even if written statement is not filed and 
instead pass such order as it may think fit in 
relation to the suit. In construing the 
provision of Order VIII Rule 1 and Rule 10, the 
doctrine of harmonious construction is required 
to be applied. The effect would be that under 
Rule 10 of Order VIII, the court in its 
discretion would have power to allow the 
defendant to file written statement even after 
expiry of period of 90 days provided in Order 
VIII Rule 1. There is no restriction in Order 
VIII Rule 10 that after expiry of ninety days, 
further time cannot be granted. The Court has 
wide power to 'make such order in relation to 
the suit as it thinks fit'. Clearly, therefore, 
the provision of Order VIII Rule 1 providing 
for upper limit of 90 days to file written 
statement is directory. Having said so, we 
wish to make it clear that the order extending 
time to file written statement cannot be made 
in routine. The time can be extended only in 
exceptionally hard cases. While extending 
time, it has to be borne in mind that the 
legislature has fixed the upper time limit of 
90 days. The discretion of the Court to extend 
the time shall not be so frequently and 
routinely exercised so as to nullify the period 
fixed by Order VIII Rule 1."

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

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

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

"(iv) the purpose of providing the time 
schedule for filing the written statement 
under Order VIII Rule 1 CPC is to expedite 
and not to scuttle the hearing. The provision 
spells out a disability on the defendant. It 
does not impose an embargo on the power of 
the Court to extend the time. Though the 
language of the proviso to Rule 1 Order VIII 
CPC is couched in negative form, it does not 
specify any penal consequences flowing from 
the non-compliance. The provision being in 
the domain of the procedural law, it has to 
be held directory and not mandatory. The 
power of the Court to extend time for filing 
the written statement beyond the time 
schedule provided by Order VIII Rule 1 CPC is 
not completely taken away. 

(v) Though Order VIII Rule 1 CPC is a part of 
procedural law and hence directory, keeping 
in view the need for expeditious trial of 
civil cases which persuaded Parliament to 
enact the provision in its present form, it 
is held that ordinarily the time schedule 
contained in the provision is to be followed 
as a rule and departure therefrom would be by 
way of exception. A prayer for extension of 
time made by the defendant shall not be 
granted just as a matter of routine and 
merely for the asking, more so when the 
period of 90 days has expired. Extension of 
time may be allowed by way of an exception, 
for reasons to be assigned by the defendant 
and also be placed on record in writing, 
howsoever briefly, by the court on its being 
satisfied. Extension of time may be allowed 
if it is needed to be given for circumstances 
which are exceptional, occasioned by reasons 
beyond the control of the defendant and grave 
injustice would be occasioned if the time was 
not extended. Costs may be imposed and 
affidavit or documents in support of the 
grounds pleaded by the defendant for 
extension of time may be demanded, depending 
on the facts and circumstances of a given 
case." In view of the above, the appeal is without merit and 
is dismissed but without any order as to costs. 

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