Rules of procedure should advance the cause of justice and not obstruct it. Substantial justice should be preferred over technical considerations, and parties should not be denied the opportunity to participate in the process of justice dispensation.

Tarlok Singh Chauhan, J.

This is an unfortunate case where the petitioner has been driven to this Court only because of hyper-technical approach, adopted by the learned Court below in dismissing the application for setting aside an order of dismissal in default.

2. It appears that the civil suit, filed by the petitioner for permanent prohibitory injunction and in the alternative for the mandatory injunction, came to be listed before the Court below on 23.12.2014 when it was called thrice in pre-lunch session. Thereafter, since none appeared on behalf of the parties, the suit was ordered to be dismissed in default. The petitioner, thereafter, filed an application under Order 9 Rule 4 read with Section 151 of the Code of Civil Procedure for setting aside the order, dated 23.12.2014, but the same was dismissed by recording the following reason:-

“This is an application u/o 9 rule 4 CPC for setting aside the dismiss in default order, dated 23.12.2014.

Application and record perused. After perusal, it came out neither the certified or uncertified copy of order, dated 23.12.2014 filed nor C.S. number for which the applicant seeking setting aside order, dated 23.12.2014 mentioned. Therefore, present application is liable to be dismissed file after its due completion be consigned to record room.”

2. It is the specific case of the petitioner that since both the counsel had noted the next date of hearing as 27.12.2014 instead of 23.12.2014, this led to their non appearance on 23.7.2014, when the matter was actually listed before the Court. There appears to be some substance in the argument raised by the petitioner as it may be for this reason that none of the parties put in appearance before the learned trial Court on 23.12.2014 and the respondents have even not chosen to contest the present proceedings. Be that as it may, did it behove the learned Court below to have passed the impugned order in such a hyper-technical manner without caring for the cause of justice. This Court in Neelam Kumari Vs. Yogender Singh and others, 2015 (3) HLR 1895 while adversely commenting upon the hyper-technical approach of the Courts, held as under:-

“8. The proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ex debito justitiae, where otherwise it would be wholly inequitable, is by now well founded.

9. It must be remembered that the Courts are respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so and further taking into consideration the fact that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done.

10. 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.

11. The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer.

12. Processual law is not to bea 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.

13. It is useful to quote the oft-quoted passage of Lord Penzance in 1879 (4) AC 504:

“Procedure is but the machinery of the law after all the channel and mean