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2005(8) Supreme 43
Supreme Court of India
(From Bombay High Court)
Arijit Pasayat & R.V. Raveendran, JJ.
Shaikh Salim Haji Abdul Khayumsab —Appellant
versus
Kumar & Ors. —Respondents
Civil Appeal No. 6907 of 2005
(Arising out of SLP (C) No. 15807 of 2004)
With
Civil Appeal No. 6918 of 2005
(Arising out of SLP (C) No. 16523/2004)
Decided on 18-11-2005
Counsel for the Parties :
For the Appellant : Siddarth Luthra, Sher Singh, Pramod Dubey and Ms. Ruby Singh Ahuja, Advocates.
For the Respondents : N.S. Gahlot, R.K. Singh, Jatinder Kumar Bhatia, B.S. Jain, Ajay Veer Singh, Ms. Charuwali Khanna and Dr. (Mrs.) Vipin Gupta, Advocates.
Held : 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. (Paras 10 and 11)
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. (Para 16)
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. (Paras 19 and 20)
Key Points:- The court held that Order VIII, Rule 1, as amended, is procedural and aims to expedite hearings, not to deny plaintiffs relief; it allows extension beyond 90 days in exceptional circumstances. (!) (!) (!) - Written statements must be filed within 30 days from service of summons and, within an extended period, but no later than 90 days from service; failure to extend can be addressed if the court permits. (!) (!) - The power to extend beyond 90 days can be exercised in exceptional cases, and the consequences of non-extension are not expressly provided but may be implied; equity and preventing prejudice to parties are considered. (!) (!) - The procedural rules should serve justice and not become a barrier; a fortuitous holiday extending the filing date can be considered within the time extended. (!) (!) - Committee and judicial discussions concluded that whether the 90-day maximum is mandatory or directory depends on object and context, with emphasis on preventing delay and ensuring fair opportunity to litigants. (!) (!)
Judgment
Arijit Pasayat, J.—Leave granted.
2. 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.
3. 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.
4. 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.
5. 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.
6. Learned counsel appearing for the respondent supported the order passed by the trial court and the High Court.
7. 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.”
8. By the 1999 Amendment Act the text of Order VIII, Rule 1 was sought to be substituted in a manner that the power of
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