Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar & Ors  Insc 652 (18
ARIJIT PASAYAT & R.V. RAVEENDRAN (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.
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
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
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
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
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.