Yashwinder Singh Parmar vs Sushil Kumar Sharma and Others

Tarlok Singh Chauhan, J.—This petition under Article 227 of the Constitution of India is at the instance of the defendant whereby his evidence came to be closed vide order dated 27.4.2015 passed by learned Civil Judge (Senior Division), Sirmaur District at Nahan, H.P.

The petitioner in support of his petition has annexed the copy of the zimini orders passed from time to time, more particularly w.e.f. 8.11.2013 till the time the impugned order came to be passed on 27.4.2015.

A perusal of the order-sheet would reveal that the case was being repeatedly adjourned only on account of the fact that either the DWs were not being served or even if served, were not presenting themselves before the Court. This position is uncontrovertable and, therefore, the only question which arises for consideration is as to whether in such circumstances the learned trial Court could have closed the evidence of the petitioner only on the ground that more than sufficient opportunities have been granted to them to produce their evidence.

I have heard learned counsel for the parties and have gone through the records of the case carefully.

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, Bhurey Lal Baya, AIR 1955 SC 425 : (1955) 2 SCR 1 , 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. Raj Singh Baldev Kishen, AIR 1969 P&H 197 : (1970) 1 ILR (P&H) 229 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 The State of Gujarat Vs. Ramprakash P. Puri and Others, (1969) 3 SCC 156 : (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 justitiae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen Vs. State of Bihar, AIR 1975 SC 1185 : (1975) 1 SCC 774 : (1975) 3 SCR 942 .

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, (1998) 3 AD 624 : AIR 1998 SC 1827 : (1998) 3 JT 244 : (1998) 2 SCALE 725 : (1998) 4 SCC 543 : (1998) 2 SCR 709 : (1998) AIRSCW 1619 : (1998) 4 Supreme 155 .

The Hon''ble Supreme Court in R.N. Jadi and Brothers and Others Vs. Subhashchandra, AIR 2007 SC 2571 : (2007) 4 CTC 326 : (2007) 9 JT 165 : (2007) 9 SCALE 202 : (2007) 6 SCC 420 : (2007) 8 SCR 241 : (2007) AIRSCW 4568 : (2007) 5 Supreme 458 considered the procedural law vis-�-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, (2009) 1 CLR 388 : (2009) 240 ELT 161 : (2008) 15 SCALE 322 : (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 Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and Others, AIR 2011 SC 1137 : (2011) 112 CLT 66 : (2011) 2 CTC 463 : (2011) 1 RCR(Civil) 801 : (2011) 1 SCALE 469 : (2011) 1 SCR 321 : (2011) AIRSCW 1318 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 Mahadev Govind Gharge and Others Vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, AIR 2011 SC 2439 : (2012) 113 CLT 414 : (2011) 6 JT 100 : (2011) 8 SCR 829 : (2011) 5 UJ 2835 : (2011) AIRSCW 3220 : (2011) 3 Supreme 665 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....."

This Court on more than one occasion has held that by providing assistance to the parties to summon the witnesses, the Courts do no favour as it is entitlement conferred upon the parties by law. Therefore, if the witnesses still do not turn up despite notice being served upon them under Order 16 Rule 12 CPC, no fault can be attributed to such parties.

The impugned order on the face of it is not sustainable and is, therefore, set-aside. The parties through their counsel are directed to appear before the learned trial Court on 20.7.2015, on which date he shall fix a date for recording the evidence on behalf of remaining witnesses of the defendants. The defendants shall also be provided the Court assistance for summoning the witnesses proposed to be examined by them.

The petition is disposed of in the aforesaid terms. Interim order dated 28.5.2015 is vacated. The pending application(s), if any, also stand disposed of. The parties are left to bear their own costs.