Rani Kusum vs Kanchan Devi - 2005 Supreme(SC) 1050

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(SC) 1050

SUPREME COURT OF INDIA
Arijit Pasayat : H.K.Sema
Rani Kusum
Versus
Kanchan Devi And Ors.
Case No. : 5066 of 2005
Date of Decision : 8/16/05
Advocates Appeared: Nishakant Pandey : Alok Kumar : Aman Lekhi : Rajiv Ranjan Dwivedi : Nagendra Kumar : Harish Pandey : Syamel Kumar : Rakesh Kumar : Jaspreet Singh Rai

Headnote:Civil Procedure Code, 1908—Order VIII Rule 1 as amended by the Code of Civil Procedure (Amendment) Act, 2002—Filing of written statement —Non-compliance with requirements of—Respondent was served with summons issued by trial Court on 10.11.2003—Written statement was filed on 10.7.2004—Prayer made by appellant to reject the written statement filed as it was filed beyond 30 days (which is the normal period) and even beyond 90 days which is the maximum period—Subordinate Judge accepted the written statement which had been filed and rejected prayer of appellant—Appeal against—Whether written statement filed beyond 90 days prescribed was liable to be rejected—(No).
       Held : 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”. (Para 7)
        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 9 and 10)
       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. (Paras 14 and 15)

ARIJIT PASAYAT, J.

Leave granted.

2. 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).

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

4. 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.

5. 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 appellants plea.

6. 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).

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) 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."

8. 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 pr

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