Advocates:
['SHRI A H KASLIWAL', 'R/ DISMISSED', '', 'P P DAWALKAR']

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

22 CIVIL APPLICATION NO. 9287 OF 2012

,In SA/258/1996

VIMALNATH VISHWANATH JAIN (L.RS.) SUBHADRABAI &ORS

VERSUS

LIMBA MAHADU & OTHERS.

...

Advocate for Applicants : Shri A.H.Kasliwal

Advocate for Respondents : Mr. P. P. Dawalkar

...

CORAM : S.B. DESHMUKH J.

Dated: October 08, 2012

...

PER COURT :-

Heard Mr. Kasliwal, learned counsel for applicants and Mr. P.P.

Dawalkar, learned counsel for respondents. Learned counsel for

applicants submits that conditional order was passed by this Court

(Coram : A.V. NIRGUDE, J) on 27^th September, 2011. It is common

order passed in number of Second Appeals. By this order, this Court

has dispensed with print paper book and directed applicants to

supply private paper book within 12 weeks. It was with default clause

that in case of failure to do so, the appeals shall stand dismissed

without further reference to the Court. It is also directed that the

order dated 27^th September, 2011 should be put on Notice Board of

Advocates’ Bar Association, High Court, Aurangabad.

2.

After hearing learned counsel, Mr. Dawalkar for respondents

points out the nature of the order. According to him this order needs

to be complied with by learned counsel for applicants.

3.

Mr. Kasliwal, learned counsel relied upon the judgment of

Hon’ble Supreme Court reported in (1983) 1 Supreme Court Cases

14 page No.14, in the matter of Kalipada Das alias Mahanto and

sga

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

others V/s Bimal Krishna Sen Gupta (dead) By L.Rs. Paragraph

no.5 of the said judgment is relevant, which is reproduced

hereinbelow :-

“5.

The only question is whether the appellant-tenant

s who undoubtedly failed to comply with the Court’s

order to supply the paper-books within the prescribed

time should be visited with such serious consequences

of a penal nature as described by the High Court itself.

Supplying paper-books is a procedural requirement

devised to facilitate rendering justice. In other words, it

is a procedural step in aid of justice, and not substantive

justice itself. Undoubtedly, Court’s orders have to be

obeyed. The institution of judiciary may not be able to

function if there is no sanction behind the Court’s order.

But penalty of (sio on) failure to comply with Court’s

order providing a procedural stage in aid of justice must

be commensurate with the gravity of the lapse. If the

penalty imposed is disproportionate to the gravity of the

lapse or omission, the procedural stage instead of

becoming a step in aid of justice would be a roadblock to

justice and at this stage it would be advantageous to

recall what this Court said in Sangram Singh V. Election

Tribunal, Kotah. It reads as under :-

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 on both sides) lest the very means

designed for the furtherance of justice be used to

sga

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

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 l