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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