Sambhaji & Ors. Vs.
Gangabai & Ors. [2008] INSC 1990 (20 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6731 OF 2008 (Arising
out of SLP (C) No. 14562 of 2006) Sambhaji & Ors. ...Appellants Versus Gangabai
& Ors. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a learned Single Judge of the Bombay High
Court dismissing the Writ petition filed by the appellants questioning
correctness of the order passed by the trial court rejecting the application
for setting aside the order directing that no written statement was to be
accepted and also not allowing the appellants who are the defendants in RCS
No.99 of 2003 filed by respondent No.1 the plaintiff to file written statement.
Rest of the respondents are the defendants in the suit. Admittedly an order was
passed stating that the written statement was not filed within the period of 90
days. An application was filed along with the written statement with two
prayers; first prayer was to set aside the earlier order relating to non-filing
of the written statement and second to accept the written statement along with
the application. The trial court held that in terms of the amended Order VIII
Rule 1 of the Code of Civil Procedure, 1908 (in short the `CPC'), there was no
scope for accepting a written statement filed beyond the fixed period of 90
days. The order was challenged before the High Court which noted that though
the view of the trial court that it had no power to accept the written
statement filed after 90 days was not correct in the circumstances of the case
no case for interference was made out.
3.
Learned
counsel for the appellants submitted that the factual scenario clearly showed
that the trial court and the High Court erred in not accepting the prayers
made.
4.
Learned
counsel for the respondent No.1 on the other hand stated that the plaintiff is
an old lady in her 80's and with a view to prolong the proceedings the
appellants are deliberately trying to harass her.
5.
The
Code of Civil Procedure 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 the 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 the recommendations of the 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 inbuilt in any sustainable
procedure. The Statement of Objects and Reasons for enacting the Code of Civil
Procedure (Amendment) Act, 1976 (104 of 1976) (in short "the 1976
Amendment Act") highlights the following basic considerations in enacting
the amendments:
3 "5. (i) that
a litigant should get a fair trial in accordance with the accepted principles
of natural justice;
(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."
6.
By
the 1999 Amendment Act the text of Order 8 Rule 1 was sought to be substituted
in a manner that the power of the 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".
7.
The
text of Order 8 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
8 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 8
Rule 1 is procedural. It is not a part of the substantive law. Substituted
Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting
dilatory tactics, delaying the disposal of cases, causing inconvenience to the
plaintiffs and the petitioners approaching the court for quick relief and also
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 handmaids 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
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 justitiae where the tragic sequel
otherwise would be wholly inequitable.
Justice is the goal
of jurisprudence, processual, as much as substantive. 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. 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.
12.
Processual
law is not to be a tyrant but a servant, not an obstruction but an aid to
justice. A Procedural prescription is the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice.
13.
It
is also to be noted that though the power of the court under the proviso
appended to Rule 1 of Order 8 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 for 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.
14.
Challenge
to the constitutional validity of the Amendment Act and the 1999 Amendment Act
was rejected by this Court in Salem Advocate Bar Association v. Union of India
[2003(1) SCC 49]. However, to work out modalities in respect of certain
provisions a committee was constituted.
After receipt of the
committee's report the matter was considered by a three- Judge Bench in Salem
Advocate Bar Assn. v. Union of India [2005(6)SCC 344]. As regards Order 8 Rule
1 the committee's report is as follows: (SCC pp. 362-63, paras 15-18) 8
"15. 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 8 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.
15.
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 8 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.
16.
In
Raza Buland Sugar Co. Ltd. v. 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.
9 In Sangram Singh
v. Election Tribunal, Kotah [AIR 1955 SC 425] considering the provisions of the
Code dealing with the trial of suits, it was opined that: (SCR pp. 8-9) `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 a 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.' " [See: SK. Salim Haji Abdul Khyumsab v.
Kumar (2006(1) SCC 46)] and R.N. Jadi & Bros. v. Subhashchandra [2007(6)
SCC 420]
15. In the instance
case the trial court proceeded on the erroneous premises that there was no
scope to accept the written statement after 90 days. The High Court by the
impugned order held that though it had power, no case was made out to accept
the prayer. We have considered the grounds indicated by the appellants seeking
acceptance of the written statement filed belatedly. They cannot be considered
to be trivial or without substance. In the case of this nature where close
relatives are litigants a liberal approach is called for. In the circumstances
we set aside the impugned order of the High Court affirming the order passed by
the trial court refusing acceptance of the written statement. The matter is not
very complex. We request the trial court to complete trial of the suit within
the period of six months. The appeal is allowed without any order as to costs.
....................................................J.
(Dr. ARIJIT PASAYAT)
....................................................J
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