Kushal Jethi vs Ravinder Parihar & Ors

Tarlok Singh Chauhan, J

Aggrieved by the order passed by the learned Single Judge on 13.11.2019, whereby the defendants No. 1 and 2 were permitted to file their written statements beyond the period of 90 days or rather more than 300 days, after service has been effected upon them, the appellant has filed the instant appeal.

It is vehemently contended by Ms. Sunita Sharma, learned Senior Advocate, duly assisted by Mr. Dhananjay Sharma, Advocate, that the learned Single Judge has erred in condoning the delay when there was no application moved by the defendants-respondents for extension of time. It is further contended that since the High Court Rules and Orders are not amended after the amendments dated 01.07.2002 and 20.10.2015 in the Civil Procedure Code, therefore, the same were not applicable and in terms of the Code of Civil Procedure, the written statement having not been filed within a period of 90 days, could not have been ordered to be taken on record.

We have heard the learned Counsel for the appellant and have gone through material placed on record.

Order VIII Rule 1 CPC, reads as under: -

1.Written Statement

The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:-

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.

In Kailash Vs. Nanhku & Ors. (2005) 4 SCC 480, it was held by the Hon'ble Supreme Court that the provision contained in order 8 Rule 1 CPC is directory and not mandatory and it was further held that the court, for reasons to be recorded in writing, could permit filing of written statement beyond the period of 90 days. Though in ordinary course, the time schedule as provided under order 8 Rule 1 of CPC has to be followed as a rule and departure therefrom is an exception. Relevant observations read as under:-

"(v) Though Order 8 Rule 1 CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."

Similar reiteration of law is found in Salem Advocate Bar Association, T.N. Vs. Union of India (2005) 6 SCC 344, wherein it was held as under:

"21.In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1."

The matter thereafter came up before a larger Bench of Hon'ble Three Judges of the Hon'ble Supreme Court in R.N. Jadi & Brothers & ors Vs. Subhashchandra (2007) 6 SCC 420 , wherein it was held that the extension of time in departure of prescribed limit is not automatic, however, the same can be granted for the reasons to be recorded in writing and on being satisfied with the reasons putforth to substantiate the failure to file written statement within the specified period are justifiable. The relevant observations are contained in paragraphs 14 and 15, which read thus:

"14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that 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 Kailash vs. Nankhu and others (2005 (4) SCC 480) which held that the provision was directory and not mandatory But there could be situations where even a procedural provision could be construed as mandatory, no doubt 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 Kailash vs. Nankhu and others (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.

A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the 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 satisfaction of the justification for granting such extension, the court being conscious 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 to encourage the belief in litigants that the imperative of Order 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 carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in ALLEN vs. SIR ALFRED McALPINE & SONS [(1968) 1 All E.R. 543] that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?"

Similar reiteration of the legal position is found thereafter in the judgment of the Hon'ble Supreme Court in Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513.

The enunciation of law, as referred to above, leaves no room for doubt that the provisions contained in order 8 Rule 1 CPC are directory and not mandatory and that the time for filing written statement, for reasons to be recorded in writing, can be extended beyond the period of limitation, subject, of course, to the justification having been offered by the defendant for such extension in departure to the time limit fixed by the statute. 10. In the present case, since the suit is being tried by this Court on the original side, the provisions of Order VIII Rule 1 CPC are not directly applicable as held by the Hon'ble Supreme Court in case Iridium India Telecom Ltd. vs. Motorola Inc. (2005) 2 SCC 145. This Court has framed original side rule for the trial of the suit, on the original side as per Rule 3 of Chapter VI of the High Court of Himachal Pradesh (Original Side) Rules, 1997, ordinarily not more than one extension of time shall be granted to the defendant for filing written statement; provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient ground for such extension and supported, if so required, by an affidavit. Under Rule 4 of Chapter VI of the aforesaid rules, it is further provided that if the defendant fails to file his/her written statement within the time allowed under Rules 2 and 3 or any time extended by an order, the suit shall be set down for final disposal and if the defendant appears and shows good cause for his default, he may be allowed to defend on payment to the plaintiff of such costs, as may be awarded.

It would be noticed that it was only after taking into consideration the relevant provisions of law that the permission was granted to file a written statement. The Court had discretion to allow the application, which has been exercised in accordance with law and, therefore, the same does not warrant any interference.

Even otherwise, 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.

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.

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.

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

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 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 means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve."

In the matter of Sangram Singh vs. Election Tribunal, Kotah reported in AIR 1955, S.C. 425, the Hon'ble Apex Court has observed 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 (provide always that justice is done to both sides) less 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 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 expectations and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle."

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 in 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. (See: Blyth v. Blyth (1966 (1) All E.R. 524 (HL).

In Balwant Singh Bhagwan Singh and another vs. Firm Raj Singh Baldev Kishen reported in AIR 1969 Punjab and Haryana 197 it was held that:

"Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner, which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness."

In the matter of State of Gujarat vs. Ramprakash P. Puri, reported in 1970 (2) SCR 875, the Hon'ble Apex Court has held that:

"Procedure has been described to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause."

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774).

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 and Another vs. Rajesh and others AIR 1998 SC 1827).

The Hon'ble Supreme Court in (2007) 9 Scale 202 (R.N. Jadi & Brothers vs. Subhash Chandra ), considered the procedural law vis-à-vis substantive law and observed as under:

"9. 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 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."

Procedure is only handmaid of Justice:- All the rules of procedure are the handmaids of justice. Any interpretation which eludes substantive justice is not to be followed. Observing that procedure law is not to be a tyrant, but a servant, in Sambhaji and others vs. Gangabai and others (2008) 17 SCC 117, the Hon'ble Supreme Court held as under:

"6.(14) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."

In 2011 (1) Scale 469 Rajendra Prasad Gupta vs. Prakash Chandra Mishra and others, the issue before the Hon'ble Supreme Court was as to whether an application will be maintainable before the trial Court to withdraw the application filed earlier for withdrawal of the suit. The trial Court dismissed the application as not maintainable. The High Court held that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without there being any order on the withdrawal application and as such another application at a later point of time to withdraw the suit was not maintainable. When the matter was taken up in appeal, the Hon'ble Supreme Court disagreed with the views expressed by the High Court. While allowing the appeal, the Hon'ble Supreme Court observed thus:

"5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted."

The Hon'ble Supreme Court in 2011 (6) Scale 1 Mahadev Govind Gharge and others vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, reiterated the legal position regarding procedural law and observed:

"28. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold....."

Every trial is a voyage of discovery in which truth is the quest. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth.

Mr. Sudhir Thakur, learned Senior Advocate, duly assisted by Mr. Karun Negi, learned Advocate, for the respondents, would argue that the instant appeal against an order permitting filing of written statement, is not maintainable. However, since we otherwise do not find any merit in this appeal, we need not answer this question.

Accordingly, the appeal is dismissed, so also the pending application(s), if any. The parties are left to bear their own costs.