M-S R.N. JADI & BROTHERS AND ORS. v. SUBHASHCHANDRA

Citation: [2007] 8 S.C.R. 241

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P.K. BALASUBRAMANYAN, D.K. JAIN

Case summary

M-S R.N. JADI & BROTHERS AND ORS. v. SUBHASHCHANDRA.pdf

Judgment text

MIS R. N. JADI & BROTHERS AND ORS. v. SUBHASHCHANDRA JULY I0, 2007 [DR. ARIHT PASAYAT, P. K. BALASUBRAMANYAN AND D. K. JAIN, JJ. ] Code of Civil Procedure, '1908: Order VIII Rule I and proviso thereto-Written statement filed beyond , 90 days from the date ofservice ofsummons-Trial court accepting written statement-High Court holding that the written statement filed beyond 90 days from the date of service could not have been accepted-Held: Date fixed by. trial court for filing written statement fell beyond 90 days and written statement was filed on the date fu:ed--ln the facts and circumstances of the case, mCvcim of equity-actus curiae neminem gravabit and lex non - ' cogit ad impossibilia, is applicable-Thus, order of High Court set aside"- Written statement filed beyond 90 days to be duly taken note of by trial Court-Maxims.

Order VIII Rule t and proviso thereto-Nature and object of-Held: ProvisiOn casts obligation on defendant to file written statement within 30 days from the date of service of summons and within the extended time of 90 days-It neither deals with nor specifically takes away the power ofcourt to take written statement on record though filed beyond time-Provision is _. procedural and not part ofsubstantive /~It -intends to curb the mischief ofunscrupu/ous defendants adopting dilatory taetics in delaying the disposal ->- . ofcases-Object is to expedite the hearing andnot to scuttle it~onsequences flowing from non-extension oftime are not specifically provided though they mtiy be read by necessary implication.

Interpretation of statutes: ____ Procedural /awlproeessual law-Held: -Object ofprescribing procedure is to advance the cause of justice though language may be liberal or stringent-Provisions relating to participation of party in any adversarial system should be so construed that no party should_ be denied opportunity ofparticipating in the process ofjustice dispensatiorr-Unless compelled by 241 . .. express and specific language of statute, provisions of CPC or any other ·-- m the date ofservice. High Court allowed the writ petition. Aggrieved appellant filed appeal and the same was held not maintainable. Appellants then filed review petition relying on *Kai/ash v. Nanhku and Ors's case that the provisions ofOrder VIII Rule 1 being directory, the reasons justifying the delayed presentation of the written statement could be satisfactorily explained. Review Petition was dismissed. Hence the present appeal Allowing the appeal, the Court HELD: Per Pasayat, J (For himself and D. I(.

Jain, J): l. 1. Order VIII, Rule 1 of the Code of Civil Procedure, 1908 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 J. :power of the court and also does not specifically take away the power ofthe court to take the written statement on record though filed beyond the time as provided for. Further, the nature ofthe provision contained in Order Vlll, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule I intends to curb the mischief of unscrupulous. defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to tfle plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for >-.. ,. · adj<>umments.

The object is to expedite the hearing and not tQ scuttle the same. While justice delayed may amount to justice denied, justice hurried may in I some cases amount to justice buried. (Para 8) (248-D-G) R. N. JADI & BROTHERS v. SUBHASHCHANDRA 243 2. 1. All the rules of procedure are the handmaid ofjustice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the obj~-t,Qf prescribing procedure is to advance the cause ofjustice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process ofjustice dispensation. Unless compelled by express and specific langu~ge of the Statute, the provision~ of: the CPC or any other procedural enactment ought not to be construed in manner which would leave the court helpless to meet extra-ordinary situations in the ends of justice. Processual law so dominates in certain systems as to overpower substantive rightS and substantial justice.

IParas 9 and 1111248-G, H; 249-A, Bl Sushi/ Kumar Sen v. State ofBihar, 1197511 SCC 774, referred to. 2. 2. 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 iri 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. (Para 12) (249-C, D, El Shreenath andAnr. v. Rajesh and Ors. , AIR (1998) SC 1827, referred to. Blyth v. Blyth, 1196611 All E. R. 524 (HL), referred to. 3.

Though the power of the Court under the proviso to Rule 1 ofOrder ->- VIII is circumscribed by words - "shall not be later than ninety days" butthe consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision oflaw 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 141 (249-F, GI _,.. .. Salem Advocate Bar Association, Tamil . Nadu v. Union of India, JT (2002) 9 SC 175; Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2005) 6 SC 486 and Rani Kusum (Smt) v. Kanchan Devi(Smt) and . --l. Ors. , (200516 sec 705, referred to. 4. 'In the facts and circumstances.

of the case, maxim ofequity~actus curiae neminem gravabit~an act of courtshall prejudice no man, shall be applicable. This maxim is founded upon justice and. good sense which serves a safe and certain guide for the administration of law. The other maxim· is, lex non cogit ad impossibilia-the law does not compel a man . to do what . he / cannot possibly perform. The law itself and its administration is understood to disclaim as· it does in its general aphorisms, all intention of compelling impossibilities, and the administration oflaw must adopt that general exception in the consideration of particular cases. (Para 17l(251-F, G) Raj Kuinar Dey v. Tarapada Dey, (1987)4 SCC 398; Gursharan Singh v. New Delhi Municipal Committee, (1~96) 2 SCC 459; Mohammod Gazi v. State of M. f'. and Ors. , (20001 4 SCC 342 and Shaikh Salim Haji Abdul .. : Khayumsab:v.. K~mar and Ors. , 12006) 1 sec 46, relied on. 5. UnC;iisputedly, the trfalCourt had granted time upto 8.

6~2004 which undisputedly feU beyottd 90 days. There is no disp~te thatthe written statement ,,- Was filed oo 8. 6. 2004. Thus, the impugned orders of the High Court are set "' aside.. The. written statement already filed shall be duly taken note of by the tria. l Court. (Paras 18 and 19) 1252-A, B) '. · HELD: P~r Balasubramanyan, J; (Concurring): l. l. It is notorious that suits were being dragged on. by defendants by the mode of procedure is altered, he has no other right than to proceed . according to the altered mode. [See Blyth v. Blyth (1966) I All E. R. 524 (HL)]. 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. [See Shreenath andAnr. v. Rajesh and Ors. , t,\IR (1998) SC 1827]. . .. ~ 13. 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. -;.. 14. It is also to be noted that though the power of the Court under the · proviso appended to Rule I of Order VIII is circumscribed by the words - ... "shall not be later than ninety days" but the consequences flowing from nonextension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in G' negative language implying mandatory character, the same is not without exceptions. The courts_, when called upon to interpret the nature of the "-> ........ provision, may, keepirig ip:view ~he. entire contextin which the·provision came to be enacted, hold"the same to be directory though worded iri the negative form. 15. Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Association, Tamil Nadu v.

Union ofIndia, JT (2002) 9 SC 175. However to work out modalities in respect of certain provisions a Committee was ·constituted. After receiptofCommittee's report the matter was considered by a three-Judge Bench in Salem Advocate Bar Association, Tamil Nadu v. - Union ofIndia, JT (2005) 6 SC 486. As regards Order VIII Rule I Committee's report is as follows: ''The question is whetherthe 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 conseque~ces on failure to file written statement within the said period have not been provided for in Order VIII Rule I. 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. 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 ofOrder VIII Rule l 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. In RazaBuland Sugar Co. ltd, Rampur v.. The Municipal Board, Rampur, AIR (1965) SC 895, Constit. ution 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 provisio11· 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 R. N. JADl&. BROTHERSv. SUBHASHCHANDRA[PASAYAT,J. J 251 case including the language ofthe provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. · In Sangram Singh v. Election Tribunal Kotah & Anr. , AIR (I955) SC 425, considering the provisions of the Code dealing with the trial of the suits, it was opined that: "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 pepple up. Too technical 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 Jives and property shouid 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 Jaws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. " 16. The position was examined in details in Kai/ash's case (supra) and - ) Rani Kusum (Smt) v, Kanchan Devi (Smt:) and Ors. , (2005] 6 SCC 705. ·17. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit-an act of court shall prejudice no man, shall be applicable, This maxim is fotmded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is; lex non cogit ad impossib1/ia the law does not compel ll man to do what he cannot possibly perform; The law \itself and_·its administration is underst~od_ to disclaim as it does in its general apho~· ~H intention of compelling impossibilities, and the administration of law'mti~. adopt that general. exception in the consideration of particular cases.

The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey, [1987) 4 SCC 398, Gursharan Singh v. New Delhi Municipal Committee, [1996] 2 SCC 459, Mohammad Gaziv. State ofMP. and Ors. , [2000] 4 SCC 342 and Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. , [2006] l sec 46. 18. The matter can be looked at from another angle. Undisputedly, the trial Court had-granted time upto 8. 6. 2004 which undisputedly fell beyond 90 days. There is no dispute that the written statement was filed on 8. 6. 2004.. 19. In view of what has been stated above, we set aside the impugned orders of the High Court. The written statement already filed shall be duly taken note of by the trial Court. The appeal is allowed but without any order ~s to costs. P. K. BALASUBRAMANYAN, J. 1. I respectfully agree.

The High Court was in error in setting aside the order of the trial court accepting the written statement filed by the defendants, in the circumstances of the case.. I. am .. prompted to make a few observations in the context of the discussion by my learned brother on the scope of the related provisions of the Code of CivH Procedure. 2. It is notorious that suits were being dr~gged on by defendants in ·suits by not filing their written statements within a reasonable time. We are not unaware of cases where written statement were not filed even within two or three vears of the filing of the suits. The control expected to be exercised by courts, by the scheme of the Code, was not being exercised leading to slackness in the matter of filing of pleadings in defece: Itwas in that context that the relevant provisions of the Code of Civil Procedlirewere aniended,. the laudable object being to avoid delay in the.

disposaf of suits: The Amended Order VIII Rule l fixes a time limit for the filing of written statements. But, ParliC;tment did. not stop with amending Order Viii Rul~ 1 alone i. e. introducing iftime limit for filing written statements and restrictingthe power of the court to grant extension of time. for filing written statements as 90 days from the date of service of summons. The powerforextehsion o(tirrle granted to the court under section 148; of the Code was ~μrtail~d by ihtroducing an outer time limit of 30 days from the dat{! originally fixe(f orgranted... Thμs, ttie •. legislative intent to limit or curtail the power ofth~ eoui'. t to extend the tim~ . . for filing a written . statement is obvious froni -a conj~int re~dingofth~se provisions. · 3. In addition to the time limit prescribed in Order VIII Rule 1 of the R. N. JADI &BROTHERS v. SUBHASHCHANDRA [BALASUBRAMANYAN, J. ] 253 :; --·. y-.

' Code, it is provided in Order V Rule 1 that the summons issued to the defendant should itself provide that he has to appear and file his written statement within one month of reciept of it and limiting the power ofthe court to extend the time for written statement to 90 days. The summons is to be accompanied by a copy of the plaint. It simultaneously introduced Rule 14 to Order VII providing that where the plaintiff sues upon a document or relies upon a document in his possession or power, in support of his claim, he sha~I -,\: enter such documents in a list and shall produce it in court when the plaint :~~ is presented by him and shall at the saine time deliver the document and copy . thereof to be filed with the plaint.

Sub-rule (3) was introduced to provide that · if the document is not included in the list, or is not produced with the plaint, •"· it was not to be produced without the leave of the court and without the leave of the court it shall not be received in evidence on his behalf at the hearing of the suit. 4. In such a position, normally no injustice would be caused to the ---\defendant in insisting upon his filing the written statement at least within 90 days of having received the summons in the suit. i think that it would be proper to avoid an interpretation that may tend to thwart the legislative intent "' in such cii:cumstances. 5. It is true that procedur. e is the handmaid ofjustice. The . court must always be anxious to do justice and to prevent victories by way of technical knock-outs.

But how far tt)at concept can be stretched in the context of the amendments brought to the Code and in the light of the mischiefthat was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kai/ash v. Nankhu and Ors. , [2005] 4 sec 480, which held that the provision was directory and not ~ man~atory, But there c_ould be situations where even a procedural provision could be construed· as mandatory, no retaining a. power in the court, in an appropriate· case, to exercise a· jurisdiction . to take out the. rigor of that provision or to mitigate· genuine hardship. It was in that context that in Kai/ash v. Nankhu and Ors. , (Supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded; has to be satisfied that there was sufficient justification for departing from the time.

limit fixed by thee Code and the power inhering in the court in I ~ terms of Section 148 ofthe Code. Kai/ash is no authority for receiving written \ statements, after the expiry ofthe period permitted by law, in aroutine manrier. .. 6. A dispensation that makes Ordtr VIII Rule I directory, leaving it to ; the courts to extend the time indiscriminately would tied to defeat~ object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that . an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfication ofthe justification for granting such extension the court being consicous of the fact that even. the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature.

It would be proper fo encourage the belief in litigants that the imperative ofOrder VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carr)' forward the legislativ intent of . avoiding dalays or at least in curtailing 'thee delays in the disposal ofsuits filed in Courts. The lament of Lord Denning in ALLEN v. SIR. ALFRED McALPINE & SONS, (1968) l ALL E. R.. 543; that Jaw,s delays,·ha\ft bten intolerable and last solong as to tum justice sour, is true of our legaliy$tem as well. Should that state of affairs continue for all times.? · . · NJ. Appeal allowed. i. " ') ·,. ~i I