Supreme Court of India
KAILASHversusNANHKU AND ORS.
- Citation
- 2005 INSC 186
- Decided
- 6 April 2005
- Disposal
- Appeal(s) allowed
- Bench
- R C LAHOTI
Holding
Order VIII, Rule I is a directory procedural provision; the High Court may, under the Representation of the People Act, 1951 and its own rules, extend the time for filing a written statement, and the trial of an election petition commences from receipt of the petition.
Summary
The appellant, Kailash, elected to the Uttar Pradesh Legislative Council, challenged a High Court order that refused to accept his written statement filed after the 90‑day limit prescribed by Order VIII, Rule I of the CPC. The Supreme Court examined when the trial of an election petition begins, whether the CPC time‑limit applies, and if it is mandatory or directory. It held that the trial starts on receipt of the petition and that the High Court, under the Representation of the People Act, 1951 and its own rules, may extend the time for filing a written statement. Order VIII, Rule I is a procedural provision that is directory, not mandatory, and may be relaxed in exceptional cases. Consequently, the Court allowed the appeal, ordered the late written statement to be taken on record, and imposed a modest cost on the appellant.
Issues considered
- When does the trial of an election petition commence and is Order VIII, Rule I of the CPC applicable to it?
- Do the High Court rules governing election petitions override the CPC provisions and permit filing a written statement beyond the prescribed period?
- Is the 90‑day time limit in the proviso to Order VIII, Rule I mandatory or directory?
Legislation cited
- Code of Civil Procedure, 1908s. Order VIII Rule I (proviso), s. Order VII Rule I, s. Section 129
- Constitution of Indias. Article 225
- Representation of the People Act, 1951s. 86, s. 87
Subjects
election petitiontrial commencementwritten statementtime limitCPC Order VIII Rule Idirectory provisionextension of timeRepresentation of the People Actprocedural law
Judgment
- KAILASH · A
v.
NANHKU AND ORS.·
. APRIL 6, 2005
[R.C. LAHOTI, CJ., D.M. DHARMADHIKARI AND P.K. B
BALASUBRAMANY AN, JJ.]
Representation of the People Act, 1951 :
Sections 86 and. 87-Election Petition- 'Trial '-Commencement of- C
limitation for filing written statement-Applicability of Order VIII, Rule /-
Extension oftime beyond 90 days-Held, trial ofan election petition commences
from the date of receipt of election petition and continues till date of its
decision -Receiving written statement being part of trial, time can be
extended-This power emanates from the Act itself and the Rules framed for D
the purpose of the Act and resort to provisions ofCPC is not called for-Even
otherwise, power of Court to extend time for filing written statement beyond
the time schedule provided by Order VIII Rule I is not completely taken
away-Constitu:fion of fndia-,Article 225-Code of Civil Procedure, 1908-
Section 129, Order Vlll, Rule I. . ..
E
Code of Civil Procedure, 1908 :
Order Vil/, Rule I, proviso-Time schedule to file written statement-
Power qf Court to extend the time-Held, the provision is directory and not
mandatory-Jn exceptional circumstances, on a written prayer, Court, for
reasons to be recorded in writing, has power to extend the time to avoid grave F·
injustice.
An election petition challenging "the election of the returned
candidate, the appellant, was filed in the High Court under Section 80 of
the Representation of the People Act, 1951. Written statement was filed
with an application for condonation of delay. The High Court rejected the G
-- application and refused to .take the written statement on record as it was
filed after 90 days from the date of service of summons, i.e., beyond the
period of limitation as provided by Rule I of Order VIII of the Code of
Civil Procedure, 1908. Aggrieved, the returned candidate filed the present
2~ H
A
290
appeal.
SUPREME COURT REPORTS [2005] 3 S.C.R.
-
On the questions :
(I) When does the 'trial' of an election petition commence? and
whether Order VIII Rule I is applicable to the trial of an election petition
B under Chapter II of the Representation of the People Act;
I
...........
(2) Whether the rules framed by the High Court governing the trial
Of election petitions would override the provisions of CPC and permit a
written statement being filed beyond the period prescribed by Order VIII
Rule 1 of the CPC; and
c
(3) Whether the time limit of 90 days as prescribed by the Proviso
appended to Rule I of Order VIII of the CPC is mandatory or directory
in nature;
Allowing the appeal, the Court
D
.HELD : 1.1. The trial of an election petition commences from the
date of the receipt of the election petition by the Coqrt and continues till
the date of its decision. The filing of pleadings is one stage in the trial of
an election petition. The power vesting in the High Court to adjourn the
trial from time to time (as far as practicable and without sacrificing the
E expediency and interests of justice) includes power to adjourn the hearing
in an election petition affording opportunity to the defendant to file written
statement. The availability of such power in the High Court is spelled out
by the pro.visions of the Represerita.tion of the People Act, 1951 itself and
Rules made for purposes of that Act and a resort to the provisions of the
F CPC is not called for. [310-C-D)
Duryodhan v. Sitaram and Ors., AIR (1970) Allahabad 1 FB and Hari
Vishnu Kamath v. Election Tribunal, Jabalpur andAnr., AIR (1958) MP 168,
approved. '
_1.'
G Harish Chandra Bajpai v. Triloki Singh, [1957) SCR 370; Om Prabha
Jain v. Gian Chand and Anr., [1959) Supp. 2 SCR 516 and Dipak Chandra
Ruhidas v. Chandan Kumar Sarkar, 12003) 7 SCC 66, referred to.
1.2. Sub-section (6) of Section 86 of the Act would empower the High
Court trying an election petition to adjourn the trial beyond the following
H day if necessary and for reasons to be recorded. The filing of a written
KAILASH v. NANHKU 291
statement being a stage in the trial of an election petition, this provision A
would empower the High Court to grant a reasonable time for filing of a
written statement though for reasons to be recorded. In view of Rules 5
and 12 framed under Article 225 for purposes of the special Act, the High
Court is not powerless to extend the time for filing the written statement
simply because the time limit for filing the written statement within the B
allowance permitted by the Proviso to Order VIII Rule 1 of the CPC has
come to an end. (300-G; 302-D-E)
Mohan Raj v. Surendra Kumar Taparia and Ors., (1969) 1 SCR 630;
Iridium India Telecom ltd v. Motorola Inc., JT (2005) 1 SC 50; Tarlok Singh
v. Municipal Corporation of Amritsar and Anr., (1986) 4 SCC 27 and Direct C
Recruit Class II Engineering Officers' Association v. State of Maharashtra
and Ors., (1990) 2 SCC 715, relied on.
1.3. On the language of Section 87(1) of the Act, it is clear that the
applicability of the procedure provided for the trial of suits to the trial of
election petitions is not attracted with all its rigidity and technicality. The D
rules of procedure contained in the CPC apply to the trial of election
petitions under the Act with flexibility and only as guidelines. The
procedure provided for the trial of civil suits by the CPC is not in its
entirety applicable to the trial of election petitions. The applicability of
the procedure is circumscribed by two riders; firstly, the CPC procedure
is applicable "as nearly as may be"; and secondly, the CPC procedure E
would give way to any provisions of the Act and of any rules made
thereunder. (297-C-D; 310-E-F)
2.1. In case of conflict between the provisions of the Representntion
of the People Act, 1951 and the Rules framed thereunder or the Rules F
framed by the High Court in exercise of the power conferred by Article
225 of the Constitution on the one hand, and the rules of procedure
contained in the CPC on the other hand, the former shall prevail over the
latter. (310-F-G)
3.1. Considering the object and purpose behind enacting Rule 1 of G
Order VIII CPC in the present form and the context in which the provision
is placed, the provision has to be construed as directory and not
mandatory. In exceptional situations, the court may extend the time for
filing the written statement though the period of 30 days and 90 days,
referred to in the provision, has expired. (308-F-G)
H
292 SUPREME COURT REPORTS [2005) 3 S.C.R. ......
A Sushi! Kumar Sen v. State of Bihar, (197511SCC774; State of Punjab
and Anr. v. Shani/al Murari and Anr., (19761 1 SCC 719; Ghanshyam Dass
and Ors. v. Dominion of India and Ors., [19841 3 SCC 46; Sangram Singh.v.
Election Tribunal, Kotah and Anr., (1955) 2 SCR 1 and Topline Shoes Ltd
v. Corporation Bank, (20021 6 SCC 33, relied on.
B Dr. J.J. Aferchant and Ors. v. Shrinath Chaturvedi, (200216SCC635,
held inapplicable.
3.2. The purpose of providing the time schedule for filing the written
statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle
C the hearing. The provision spells out a disability on the defendant. It does
not impose an embargo on the power of the Court to extend the time.
Though, the language of the proviso to Rule 1 of Order VIII of the CPC
is couched in negative form, it does not specify any penal consequences
flowing from the non-compliance. The provision being in the domain of
the Procedural Law, it has to be held directory and not mandatory. The
D ·power of the Court to extend time for filing the written statement beyond
the time schedule provided by Order VIII, Rule 1 of the CPC is not
completely taken away. (310-G-H; 311-A-B)
3.3. Though Order VIII, Rule 1 of the CPC is a part of Procedural
Law and hence directory, keeping in view the need for expeditious trial
E 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 theref~om 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
F 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 in circumstances which are exceptional, occasioned by
reasons beyond the control of the defendant and grave injustice would be
G 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. (311-B-El
4. In the case at hand, the High Court felt satisfied that the reason
H
KAILASH v. NANHKU [LAHOTI, CJ.] 293
assigned by the defendant-appellant in support of the prayer for extension A
of time was good and valid. However, the prayer was denied because the
High Court felt it had no power to do so. The written statement has already
been filed in the High Court. The written statement shall now be taken ~
on record but subject to payment of Rs. 5000 by way of costs payable by
the appellant herein to respondent No.I i.e. the election petitioner in the B
High Court. [311-F-GI
CIVIL APPELLATE JURISDICTION: Civil Appt.tl J\:0. 7000 of2004.
Fom1 the Judgment and Order dated 23.8.2004 of the Allahabad High
Court in E.P.No. I of 2004.
c
Rakesh Dwivedi, (A.C.) Vijay Hansaria, Gaurav Bhatia, Abhishek
1 Chaudhary, Mrs. Niranjana Singh, Ms. Vimla Sinha, Gaurav Librehan, Adarsh
Upadhyay and Avnish Tiwari, Dr. I.P. Singh, R.K. Singh, Sanjay Kr. Singh
and C.D. Singh, with them for the Appellant.
D
Vijay Kumar, Ms. Mayuri Vats, Sunil Verma, Sanjeev Chaudhary
Rajanish Kumar, Aniurddh P. Mayee for the Respondents.
The Judgment of the Court was delivered by
· R.C. LAHOTI, CJ. E
Facts in brief
Elections of Uttar Pradesh Legislative Council were held pursuant to
the Presidential notification dated 7.11.2003. The appellant was declared
elected. Respondent No. I filed an election petition under Section 80 of the F
Representation of the People Act, 1951 (hereinafter 'the Act', for short)
laying challenge to the election of the appellant.
The appellant was served with the summons, accompanied by a copy
of the election petition, requiring his appearance before the Court on 6.4.2004.
On the appointed day, the appellant appeared through his counsel and sought G
for one month's time for filing the written statement. The Court allowed time
till 13.5.2004 for filing the written statement. On 13.5.2004, the appellant
again filed an application seeking further time for filing the written statement
on the ground that copies of several documents were required to be obtained.
The Court adjourned the hearing to 3.7.2004 as, in between, from 13.5.2004 H
294 S.UPREME COURT REPORTS [2005] 3 S.C.R. ...
A to 2.7.2004, the High Court was closed for summer vacation. On 22.6.2004,
appellant's advocate's nephew expired. However, the written statement was
drafted and kept ready for filing. The registered clerk of the advocate was
deputed for filing the same in the Court on the appointed day .. The clerk
reached Allahabad, the seat of the High Court, from Gazipur where the
appellant and his advocate resided. On 1.7.2004, that is, two days prior to the
B day of hearing, the affidavit of the appellant annexed with the written statement,
was sworn in at Allahabad. However, (as is later on stated), on account of
lack of understanding on the part of the registered clerk, the written statement
could not be filed on 3.7.2004 but the same was filed on 8.7.2004 accompanied
by an application for condonation of delay in filing the written statement
c briefly stating the reasons set out hereinbefore. On 23.8.2004, the High Court
rejected the application filed by the appellant and refused to take the written
statement on record for the reason that the same was filed beyond a period
of 90 days from the date of service of summons, the period of limitation as
provided by the Proviso to Rule I of Order VIII of the Code of Civil Procedure,
1908 (hereinafter 'the CPC', (or short), as introduced' by Act 22 of2002 with
D effect from 1.7.2002. Feelj9g· aggrieved by the said order, the winning
candidate i.e. the defendant-respondent before the High Court, has filed this
appeal by special leave.
We have heard Shri Vijay Hansaria, the learned senior counsel for the
appellant, Shri Vijay Kumar, the learned counsel for the respondent (election
E
petitioner), and also Mr. Rakesh Dwivedi, the learned senior counsel, who
has on request appeared Amicus Curiae.
Questions for decisions
F The learned counsel for the appellant submitted that the provisions of
the CPC do not ipso facto and in their entirety apply to the trial of election
petition under Chapter II of the Act. Alternatively, he submitted that rules
have been framed by the Allahabad High Court making special provisions
relating to the trial of election petitions which would override the provisions
of the CPC. In the next alternative, the learned senior counsel submitted that
G the provisions ofOrderVIII Rule I of the CPC being in the realm of procedural
law, the time limit contained therein should be construed as directory and not
mandatory assuming the provision is applicable to the trial of election petitions. <;--
The learned counsel for respondent No. I has disputed the correctness of the
submissions so made and argued in support of the impugned order of the
High Court.
H
•
KAILASH v. NANHKU [LAHOTI, CJ.] 295
Three questions arise for decision :- A
(I) Whether Order VIII Rule l of the CPC is applicable to the triai
of an election petition under Chapter II of the Act?
(2) Whether the rules framed by the High Court governing the trial
of election petitions would override the provisions of CPC and permit B
a written statement being filed beyond the period prescribed by Order
VIII Rule l of the CPC?
(3) Whether the time limit of 90 days as prescribed by the Proviso
appended to Rule l of Order VIII of the CPC is mandatory or directory
in nature? C
Relevant Provisions
The Representation of the People Act, 1951 (43 of 1951) has been
enacted, as its Preamble indicates, to provide for the conduct of elections and
other proceedings relating to such elections, as also for the decision of doubts D
and disputes arising out of or in connection with such elections. Part VI of
the Act deals with 'Disputes Regarding Elections'. The provisions contained
therein are elaborate and detailed. This Part is divided into five Chapters.
Chapter I incorporates Section 79 which is an interpretation clause giving
definitions of certain words and expressions which are relevant for the purpose E
of Parts VI and VII of the Act. Chapter II deals with presentation of election
petitions to High Courts. The jurisdiction to try election petitions is conferred
on the High Courts. Provisions are made as to by whom and in what manner
an election petition shall be presented; who will be parties to the petition;
what an election petition must contain and the reliefs which an election
petitioner may claim. Chapter III makes provision for trial of election petitions; F
procedure before the High Court and several rules of evidence applicable to
trial of an election petition. What directions - principal and incidental -
can be made and issued by the High Court in its judgment disposing of an
election petition and the grounds on which such directions can be founded
are provided for. Chapter IV lays down the rules governing the discretion of G
the court in the matter of permitting withdrawal of election petitions and the
procedure relating thereto. Provision is made as to when and subject to what
procedure an el.ection petition would abate or substitution would be permitted
in case of death of a party to the election petition. Chapter V deals with costs
and security for costs. Right of appeal and procedure relating thereto are
contained in Chapter IV A. H
296 SUPREME COURT REPORTS [2005] 3 S.C.R.
A Two points of significance deserve to be noted and highlighted. On all
the subjects, suggested by the titles given to the different Chapters, provisions
are already available in the CPC which is a pre-existing law. An election
petition is a civil trial and if the Parliament had so wished, all the aspects of
trial included in Part VI could have been left to be taken care of by the pre-
existing law, that is, the CPC. However, the Parliament has chosen to enact
B separate and independent provisio11s applicable to the trial of election petitions
and placed them in the body of the Act.
Section 87 of the Act provides as under :-
c "87. Procedure before the High Court. - (1) Subject to the provisions
of this Act and of any rules made thereunder, every election petition
shall be tried by the High Court, as nearly as may be, in accordance
with the procedure applicable under the Code of Civil Procedure,
1908 (5 of 1908) to the trial of suits :
D Provided that the High Court shall have the discretion to refuse,
for reasons to be recorded in writing, to examine any witness or
witnesses if it is of the opinion that the evidence of such witness or
witnesses is not material for the decision of the petition or that the
party tendering such witness or witnesses .is doing so on frivolous
grounds or with a view to delay the proceedings.
E
(2) The provisions of the Indian Evidence Act, 1872 ( 1 of 1872),
shall, subject to the provisions of this Act, be deemed to apply in all
respects to the trial of an election petition."
'
(e'mphasis supplied)
F
"86. Trial of election petitions. -
(1) to (5) xxx xxx xxx
(6) The trial of an election petition shall, so far as is practicable
G consistently with the interests of justice in respect of the trial,· be
continued from day to day until its conclusion, unless the High Court
finds the adjournment of the trial beyond the following day to be
necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible
H
KAILASH v. NANHKU [LAHOTI, CJ.] 297
and endeavour shall be made to conclude the trial within six months A
from the date on which the election petition is presented to the High
Court for trial."
(emphasis supplied)
Sub-section (6) of Section 86 of the Act requires trial of an election B
petition to be continued from day to day until its conclusion, so far as is
practicable consistently with the interests of justice in respect of the trial,
unless the High Court finds the adjournment of the trial beyond the following
day to be necessary for reasons to be recorded. Sub-section (7) requires every
election petition to be tried as expeditiously as possible with an endeavour to
conclude the trial within six months from the date of presentation of the C
election petition. Thus, the procedure provided for the trial of civil suits by
the CPC is not in its entirety applicable to the trial of election petitions. The
applicability of the procedure is circumscribed by two riders; firstly, the CPC
procedure is applicable "as nearly as may be"; and secondly, the CPC
procedure would give way to any provisions of the Act and of any rules D
made thereunder.
Section 169 of the Act confers power on the Central Government to
make rules for carrying out the purposes of the Act. The Central Government
is empowered to make rules which may govern the procedure of trial of
election petitions. Although, this subject is not specifically mentioned as one E
of the matters in sub-section (2) which specifies the topics on which the
Central Government may frame rules, b.9-wever, clause (i) of sub-section (2)
is a residuary clause which empowers the Central Government to frame rules
regarding "any other matter required to be prescribed by this Act." Sub-
section (I) of Section 87 of the Act also gives an indication that the statute F
contemplates the framing of rules under the Act to govern the procedure of
trials before the High Court, which, read with the Preamble to the Act, is the
source of power for making the rules laying down the procedure for the trial
of election petitions. There is no provision in the Act which empowers the
High Court to frame the rules governing the procedure of trials before the
High Court. However, the High Court is not entirely powerless in the matter G
of framing the rules of procedure. Article 225 of the Constitution of India
confers powers on the High Court, inter alia, to make rules of court for the
purpose of hearing, trying and deciding any matter lying within the jurisdiction
of the High Court. The High Court-can thus frame rules of procedure regarding
the trial of election petitions under Article 225 of the Constitution. This
H
298 SUPREME COURT REPORTS [2005] 3 S.C.R.
A . source of power emanates from the Constitution and is, therefore, very potent.
Section 129 of CPC is another source of power of High Court to make rules
to regulate its own procedure in the exercise <)fits original civil jurisdiction.
This will include election petitions also as they are tried in the original civil
jurisdiction of the High Court.
B The Allahabad High Court has framed several rules in exercise of the
powers conferred by At1icle 225 of the Constitution. Chapter XV-A, consisting
of 13 Rules and entitled "Special provisions relating to the trial of election
petitions" 1 was added in the body of the rules vide notification dated 7 .3.1967.
Following Rules are relevant for our purpose and hence are extracted and
C reproduced hereunder :-
"I. Sc;ope.-The provisions ofthis Chapter shall govern the trial of
election petitions under the Representation of the People Act, 1951.
xxx xxx xxx
D
5. Issue of notice to respondent. The election-petition shall be laid
before the Bench so constituted without delay, and unless it is
dismissed under sub-section ( l) of Section 86 of the Act or for being
otherwise defective, the Bench may. direct issue of notice to the
respondent to appear and answer the claim on a date to be specified
E therein. Such notice shall also direct that if he wishes to put up a
defence he shall file his written statement together with a list of all
documents, whether in his possession or power or not, upon which he
intends to rely as evidence in support of his defence on or before the
date fixed; and further, that in default of appearance being entered on
or before the date fixed in the notice the election petition may be
F heard and determined in his absence. The notice shall be in Form No.
34-A.
xxx xxx xxx
12. Court's. power to give directions in matters of practice and
G procedure. - The Bench may, consistently with the provisions of
Section 87 of the Act, give such directions in matters of practice and
procedure (including the recording of evidence) as it shall consider
just and expedient."
A perusal of the several provisions made by the High Court Rules
H
KAILASH v. NANHKU [LAHOTI, CJ.] 299
goes to show that the Rules touch many a subject on which provisions are A
found in the Act itself. Suffice it to observe that in case of conflict, the
provisions of the Act and the provisions of the High Court Rules shall, as far
as may be, be harmoniously construed avoiding the conflict, if any, and ifthe
conflict be irreconcilable the provisions contained in the Act being primary
legislation shall prevail over the provisions contained in the High Court B
Rules framed in exercise of delegated power to legislate. No such conflict is
noticeable, so far as the present case is concerned.
'Trial' of election petition, when it commences?
At this point the question arises : When does the trial· of an election C
petition commence or what is the meaning to be assigned to the word 'trial'
in the context of an election petition? In a civil suit, the trial begins when
issues ate framed and the case is set down for recording of evidence.. All the
proceedings before that stage are treated as proceedings preliminary to trial
or for making the case ready for trial. As held by this Court in several
decided cases, this general rule is not applicable to the trial of election petitions D
as in the case of election petitions, all the proceedings commencing with the
presentation of the election petition and upto the date of decision therein are
included within the meaning of the word 'trial'.
In Harish Chandra Bajpai v. Triloki Singh, [1957] SCR 370, the narrow
and wider sense in which the word 'trial' is used came up for consideration E
of the Court. In its narrow or limited sense, 'trial' means the final hearing of
the petition consisting of examination of witnesses, tiling documents and
addressing arguments. In its wider sense, the word 'trial' indicates the entire
proceeding from the time when the petition comes before the court until the
pronouncement of decision. In the context of an election petition, it was held F
that the word 'trial' must necessarily include the matters preliminary to the
hearing, such as settlement of issues, issuance of directions and the like. With
the receipt of the petition in the High Court, various steps have to be taken
before the stage can be set for hearing it. The respondent has to file his
written statement and issues have to be settled. The stages of discovery and
inspection, enforcing attendance of witnesses and compelling the production G
of documents do not form part of the hearing in a trial governed by the CPC
but precede it. For the purpose of an election petition, the word 'trial' includes
the entire proceedings commencing from the time of receipt of the petition
until the pronouncement of the judgment. It was held that hearing of an
application under Order VI Rule 17 of the CPC for amending the pleadings H
l
,t
~
300 SUPREME COURT REPORTS (2005] 3 S.C.R.
A would be a stage in the trial of an election petition.
In Om Prabha Jain v. Gian Chand and Anr., [1959] Supp. 2 SCR 516,
also this Court refused to assign a restrictive meaning to the word 'trial' in
regard to election petitions while interpreting Section 90(3) of the Act as it
existed prior to the 1966 Amendment. It was held that an order dismissing
B an election petition at the very threshold under Section 90(3) for non-
compliance with Section 117 would be deemed to be an order at a stage of
trial. This view was reiterated by this Court recently in Dipak Chandra Ruhidas
v. Chandan Kumar Sarkar, [2003] 7 SCC 66, wherein it was held that to be
an order passed during the trial of an election petition it is not necessary that
C at the time of passing of that order there must have been a full dressed trial
after taking evidence of the parties; even an order dismissing an election
petition summarily for non-compliance with the provisions of Section 81 or
82 or 117 is an order passed during the trial of an election petition.
Two decisions by High Courts deserve to be noticed. They are
D Duryodhan v. Sitaram and Ors., AIR (1970) Allahabad I FB and Hari Vishnu
Kamath v. ElectiOn Tribunal, Jabalpur and Anr., AIR (1958) MP 168. Both
the High Courts have taken the view that the word 'trial' undoubtedly has
two meanings. It may mean the trial of a .controversy that arises from an
issue. It may equally mean the trial of an election petition. covering the entire
E process of the litigation from its first seisin by the tribunal (or the Court) to
its disposal and would include all the matters even prior to the hearing of the
election petition. The matters relatjng to service of summons, calling for and
finalizing the pleadings and settling the issues are all constituent stages of the
trial. We find ourselves in agreement with the meaning so assigned to the
word 'trial' in the context of election petition.
F I' r
Receiving written statement being part of 'trial', time can be extended
Once we are clear about the meaning of the word 'trial' in the context
of election petition, certain consequences follow. Sub-section (6) of Section
86 of the Act would empower the High Court trying an election petition to
G adjourn the trial beyond the following day if necessary and for reasons to be
recorded. The filing of a written statement being a stage in the trial of an
election petition, this provision would empower the High Court to grant a
reasonable time for filing of a written statement though for reasons to be
recorded. The availability of this power finds support from Rules 5 and 12
H of the High Court Rules. Under Rule 5, the High Court has power to fix a
KAILASH v. NANHKU [LAHOTI, CJ.) 301
date for filing the written statement which power would include the power to A
fix such date not merely once but again and again depending on the discretion
of the High Court. Power to extend time for filing the written statement being
a matter of practice and procedure the High Court would be within its power
to give such directions in that regard as it shall consider just and expedient
within the meaning of Rule 12. This discretion vested in the Court by Rules B
made under Article 225 for purposes of any special act would not be controlled
by the proviso to sub-rule (l) of Order VIII of the CPC.
This position of law does not admit of any doubt as was held in Mohan
Raj v. Surendra Kumar Taparia and Ors., [1969] l SCR 630, that the CPC
applies only subject to the provisions of the Act and the rules made thereunder. C
The question arose in the context of Sections 82 and 86 of the Act whereunder
a candidate against whom the allegations of corrupt practices were made in
the petition and so should have been necessarily joined as respondent under
Section 82 but was not joined and Section 86 provides for mandatory dismissal
of such a petition. It was held that the defect could not be cured by invoking
Order l Rule l 0 or Order 6 Rule 17 of the CPC to avoid the penalty of D
dismissal of the petition. In Iridium India Telecom Ltd. v. Motorola Inc., JT
(2005) l SC 50, this Court affirmed the view taken by a Division Bench of
the Bombay High Court that the amended provision of Order VIII, Rule l of
the CPC would not apply to the suits on the Original Side of the High Court
and such suits would continue to be governed by the High Court (Original E
Side) Rules; the High Court Rules were framed iil exercise of the power
conferred by Section 129 of the CPC and the Letters 'Patent and, therefore,
were saved by Section 4(1) of the CPC.
Section 87 of the Act is a guarded provision as its language indicates.
A few things are noteworthy for determining the nature and character of the F
provision contained in Section 87. Its title reads "Procedure before the High
Court". The applicability of the provision is "subject to the provisions of this
Act and of any rules made thereunder". The procedure prescribed by the
Code for the trial of suits is not just adopted, and as if incorporated into the
Act, so as to govern the trial of election petition. The procedure applicable G
under the Code to the trial of suits has been made applicable to the trial of
every election petition "as nearly as may be". The language of sub-Section
(l) of Section 87 has to be read in juxtaposition with the language of sub·
Section (2), whereby the provisions of the Indian Evidence Act, 1872 have
been made applicable in respect to the trial of an election petition by providing
that they shall "be deemed to apply in all respects to the trial of an election H
302 SUPREME COURT REPORTS (2005] 3 S.C.R.
A petition".
In Tar/ok Singh v. Municipal Corporation of Amritsar and Anr., [1986)
4 SCC 27, Section 384 of the Punjab Municipal Corporation Act, 1976 came
up for the consideration of the Court. It provided for the procedure in the
B Code, in regard to suits, being followed, "as far as it can be made applicable",
in the disposal of certain matters under the Act. The Court held that the
relevant provisions of the Code were made applicable for the purposes of
guidance of procedure and it is not expected that the procedure of a suit was
to be followed technically and strictly in accordance with the provisions
contained in the Code.
c
In Direct Recruit Class II Engineering Officers' Association v. State of
Maharashtra and Ors., [ 1990) 2 SCC 715, the expression "as far as applicable"
came up for the consideration of the Court. It was held that such expression
had the effect of making the rules or provisions contained elsewhere applicable
D with realism and flexibility, true to life ~ather than with abstract a~solutism.
We are, therefore, of the opinion that, in view of Rules 5 and 12 .framed
under Article 225 for purposes of the Special Act, the High Court is not
powerless to extend the time for fili_ng the written statement simply because
the time limit for filing the written statement within the allowance pennitted ~
E by the Proviso to Order VIII Rule 1 of the CPC has come to an end. '
Alternatively, Ordel' VIII Rule 1 of CPC, mandatory or directory?
This leads us to examine the alternative contention of the learned senior
counsel for the appellant that, in any event, Order VIII Rule I of the CPC is
F not mandatory but directory in nature, a submission on which both the learned
counsel for the parties have forcefully argued and the learned Amicus Curiae
has also made detailed submissions.
The CPC which consolidated and amended the laws reI11ting to the
G procedure of the Courts of Civil Judicature in.the year 1908, has in the recent
times undergone several amendments based on the recommendations of the
Law Commission displaying the anxiety of Parliament to secure an early and
expeditious disposal of civil suits and proceedings but without sacrificing the
fairness of trial and the principles of natural justice in~built in any sustainable
procedure. The Statement of Objects and Reasons for enacting Code of Civil
H Procedure (Amendmei:it) Act, 1976 (104of197?) r~cords the following basic
KAILASH v. NANHKU [LAHOTI, CJ.) 303
consid~rations which persuaded the Parliament in enacting the amendments:- A
· (i) that a litigant should get a fair trial in accordance with the accepted
principles of natural justice;
(ii) that every effort should be made to expedite the disposal of civil
suits and proceedings, so that justice may not be delayed; B
(iii) that the procedure should not be complicated and should, to the
utmost extent possible, ensure fair deal to the poorer sections of
the community who do not have the means to engage a pleader
to defend their cases.
c
By Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) the
text of Order VIII, Rule I was s~ught to be substituted in a manner that the
power of court to extend the ·time for filing the written statement was so
circumscribed as would not permit the time being extended beyond 30 days
from the date of service of summons on the defendant. As is well-known, D
there was stiff resistance from the members of the Bar against enforcing such
and similar other provisions sought to be introduced by way of amendment
and hence the Amendment Act could not be promptly notified for enforcement.
The text of the provision in the present. form has been introduced by Code
of Civil Procedure (Amendment) Act, 2002 (22 of 2002) with effect from
I. 7.2002. The purpose of such like amendments is stated in the Statement of E
Objects and Reasons as "to reduce delay in the disposal of civil cases".
The text of Order VIII, Rule l, as it stands now, reads as under : -
"J. Written statement. - The defendant shall, within thirty clays F
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
same on such other day, as may be specified by the Court, for reasons G
to be recorded in writing, but which shall not be later than ninety
days from the date of service of summons."
Three things are clear. Firstly, a careful reading of the language in
which Order VIII, Rule I has been drafted, shows that it casts an obligation
on the defendant to file the written statement within 30 days from the date H
304 SUPREME COURT REPORTS [2005] J S.C.R.
A of service of summons on him and within the extended tiine falling within
90 days. The provision does not deal with the power of the court and also
does not specifically take away the· power of the court to take the written
statement on record though filed beyond th.e time as .provided for. Secondly,
the nature of the provision contained in Order VIII, Rule I is procedural. It
B is not a part of the substantive law. Thirdly, the object behind substituting
Order VIII, Rule I in the present shape is to curb the mischief of unscrupulous
defendants adopting dilatory tactics, delaying the disposal of cases much to
the chagrin of the plaintiffs and petitioners approaching the court for quick
relief and also to the serious inconvenience of the court faced with frequent
prayers for adjournments. The object is to expedite the hearing and not to
C scuttle the same. The process of justice may be speeded up and hurried but
the fairness which is a basic element of justice cannot be permitted to be
buried.
All the rules of procedure are the handmaid of justice. The language
D 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
E construed in a manner which. would leave the court helpless to meet
extraordinary situations in the ends of justice. The observations made by
Krishna Iyer, J. in Sushi/ Kumar Sen v. State of Bihar, [1975] t SCC 774,
are pertinent :-
"The mortality of justice at the hands of law troubles a Judge's
F
conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain system.s as to
overpower substantive rights and substantial justice. The humanist
rule that procedure should' be the handmaid, not the mistress, of legal
G justice compeis 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."
In The State of Punjab and Anr. v. Sham/al Murari and Anr., [1976]
H I sec 719, the Court approved in no unmistakable terms the approach of
KAILASH v. NANHKU [LAHOTI. CJ.] 305
moderating into wholesome directions what is regarded as mandatory on the A
principle that "Processual law is not to be a tyrant but a servant, not a11
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." In Ghanshyam Dass and Ors. v. Dominion of India and Ors., [l 984J
3 sec 46, the Court reiterated the need for interpreting a part of the adjective B
law dealing with procedure alone in such a manner as to sub-serve and
advance the cause of justice rather than to defeat it as all the laws of procedure
are based on this principle.
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 - C
"shall not be later than ninety days" but the consequences flowing from non-
extension of time are not specifically provided though they may be read by
necessary implication. Merely, because a provision of law 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 D
came to be enacted, hold the same to be directory though worded in the
negative form.
In Sangram Singh v. Election Tribunal, Kotah and Anr., [1955] 2 SCR
l, this Court highlighted 3 principles while interpreting any portion of the B
CPC. They are:
(i) 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 F
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.
(ii) There must be ever present to the mind the fact that our laws of G
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 H
306 SUPREME COURT REPORTS (2005] 3 S.C.R.
A participati!lg in them. Of course, there must be exceptions and
where they are clearly defined they must be given effect to ..
(iii) No forms or procedure should ever be permitttd to exclude the
presentation of the litigant's defence unless there be an express
provision to the contrary.
B
Our attention has also been invited to a few other provisions such as
Rules 9 and IO of Order VIII. In spite of the time limit appointed by Rule
I having expired, the court is not powerless to permit a written statement
being filed if the court may require such written statement. Under Rule I 0,
the court need not necessarily pronounce judgment against the defendant
C who failed to file written statement as required by Rule I or Rule 9. The
court may still make such other order in relation fo 'the suit as it thinks fit.
As stated earlier, Order VIII, Rule I is a provision contained in the
CPC and hence belongs to the domain of procedural law. Another feature
D noticeable in the language of Order VIII Rule I is that although it appoints
a time within which the written statement has to be presented and also restricts
the power of the Court by employing language couched in a negative way
that the extension of time appointed for filing the written statement was not
to be later than 90 days from the date of service of summons yet it does not·
in itself provide for penal consequences to follow if the time schedule, as laid
E down, is not observed. From these two features certain consequences follow.
Justice G.P. Singh notes in his celebrated work "Principles of Statutory
Interpretation" (Ninth Edition, 2004) while dealing with mandatory and
directory provisions - "The Study of numerous cases on this topic does not
p lead to formulation of any universai rule except this that language alone most
often is not decisive, and regard must be had to the context, subject-matter
and object of the statutory provision in question, in determining whether the
same is mandatory or directory. In an oft-quoted passage LORD CAMPBELL
said: 'No universal rule can be laid down as to whether mandatory enactments
shall be considered directory only or obligatory with an implied nullification
G for disobedience. It is the duty of Courts of justice to try to get at the real
intention of the Legislature by carefully attending to the whole scope of the
statute to be considered'." (p. 338) "For ascertaining the real intention of the
Legislature", points out SUBBAR,AO, J. "the court may consider inter alia, ·
the nature and design of the statute, an~ the consequences which would
H follow from construing it the one way or the other; the impact of other
KAILASH v. NANHKU [LAHOTI, CJ.] 307
provisions whereby the necessity of complying with the provisions in question A
is avoided; the circumstances, namely, that the statute provides for a
contingency of the non-compliance with the provisions; the fact that the non-
compliance with the provisions is or is not visited by some penalty; the
serious or the trivial consequences, that flow therefrom; and above all, whether
the object of the legislation will be defeated or furthered". If object of the
enactment will be defeated by holding the same directory, it will be construed B
as mandatory, whereas if by holding it mandatory serious general
inconvenience will be created to innocent persons without very much furthering
the object of enactment, the same will be construed as directory." (pp. 339-
340)
Two decisions, having a direct bearing on the issue arising for decision
c
before us, have been brought to our notice, one each by the learned counsel
for either party. The learned senior counsel for the appellant submitted that
in Topline Shoes Ltd. v. Corporation Bank, [2002] 6 SCC 33, pari materia
provision contained in Section 13 of the Consumer Protection Act, 1986
came up for the consideration of the Court. The provision requires the opposite D
party to a complaint to give his version of the case within a period of 30 days
or such extended period not exceeding 15 days as may be granted by the
District Forum. The Court took into consideration the Statement of Objects
and Reasons and the legislative intent behind providing a time frame to file
reply and held : (i) that the provision as framed was not mandatory in nature E
as no penal consequences are prescribed if the extended time exceeds 15
days and; (ii) that the provision was directory in nature and could no.t be
interpreted to mean that in no event whatsoever the reply of the respondent
could be taken on record beyond the period of 45 days.
The Court further held that the provision is more by way of procedure F
to achieve the object of speedy disposal of such disputes. The strong terms
in which the provision is couched are an expression of 'desirability' but do
not create any kind of substantive right in favour of the complainant by
reason of delay so as to debar the respondent from placing his version in
defence in any circumstances whatsoever.
G
In our opinion, the view of the law so taken by this Court squarely
applies to the issue before us and we find ourselves in agreement with the
law stated by the two-Judge Bench of this Court in the case of Topline Shoes
Ltd (supra).
H
308 SUPREME COURT REPORTS [2005] 3 S.C.R.
A The learned counsel for the respondent, on the other hand, invited our
attention to a three-Judge Bench decision of this Court in Dr. J.J. Merchant
and Ors. v. Shrinath Chaturvedi, (2002] 6 SCC 635, wherein we find a
reference made to Order VIII, Rule I of the CPC vide paras 14 and 15
thereof and the Court having said that the mandate of the law is required to
B be strictly adhered to. A careful reading of the judgment shows that the
provisions of Order VIII, Rule l of the CPC did not directly arise for
considera~ion before the Court and to that extent the observations made by
the Court are obiter. Also, the attention of the Court was not invited to the
earlier decision of this Court in Topline Shoes Ltd. case (supra).
C It was submitted by the senior learned counsel for the appellant that·.
there may be cases and cases which cannot be foretold or thought of precisely
when grave injustice may result if the time limit of days prescribed by Order
VIII, Rule l was rigidly followed as an insurmountable barrier. The defendant
may have fallen sick, unable to move; may be he is lying unconscious. Also,
the person entrusted with the job of presenting a written statement, complete
D in all respects and on his way to the court, may meet with an accident. The
illustrations can be multiplied. If the schedule of time as prescribed was to
be followed as. a rule of thumb, failure of justice may be occasioned though
for the delay, the defendant and his counsel may not be to blame at all.
However, the learned counsel for respondent No.I submitted that ifthe court
E was to take a liberal view of the provision and introduce elasticity into the
apparent rigidity of the language, the whole purpose behind enacting Order
VIII, Rule I in the present fonn may be lost. It will be undoing the amendment
and restoring the pre-amendment position, submitted the learned counsel.
We find some merit in the submissions made by the learned counsel for
F both the parties. In our opinion, the solution-and the correct position of law
-lie somewhere midway and that is what we propose to do placing a
reasonable construction on the language of Order VIII, Rule I.
Considering the object and purpose behind enacting Rule I of Order
VIII in the present form and the context in which the provision is placed, we
G are of the opinion that the provision has to be construed as directory .and not
mandatory. In exceptional situations, the court may extend the time for filing
the written statement though the petfod of 30 days and 90 days, referred to
in the provision, has expired. However, we may not be misunderstood as
nullifying the entire force and impact - the entire life and vigour - of the
H provision. The delaying tactics adopted by the defendants in law courts are
--- KAILASH v. NANHKU [LAHOTI. CJ.] 309
now proverbial as they do stand to gain by delay. This is more so in election A
disputes because by delaying the trial of election petition, the successful
candidates may succeed in enjoying the substantial part, if not in its entirety,
the term for which he was elected even though he may loose the battle at the
end. Therefore, the judge trying the case must handle the prayer for
adjournment with firmness. The defendant seeking extension of time beyond
B
the limits laid down by the provision may not ordinarily be shown indulgence.
Ordinarily, the time schedule prescribed by Order VIII, Rule I has to
be honoured. The defendant should be vigilant. No sooner the writ of summons
is served on him he should take steps for drafting his defence and filing the
written statement on the appointed date of hearing without waiting for the c
arrival of the date appointed in the summons for his appearance in the Court.
The extension of time sought for by the defenda11t from the court whether
within 30 days or 90 days, as the case may be, should not be granted just as
a matter of routine and merely for asking more so, when the period of 90
days has expired. The extension can be only by way of an exception and for
reasons assigned by the defendant and also recorded in writing by the Court D
to its satisfaction. It must be spelled out that a departure from the time
schedule prescribed by Order VIII, Rule I of the Code was being allowed to
be made bec.ause the circumstances were exceptional, occasioned by reasons
beyond the control of the defendant and such extension was required in the
interest of justice, and grave injustice would be occasioned if the time was E
not extended.
A prayer seeking time beyond 90 days for filing the written statement
r~ ought to be made in writing. In its judicial discretion exercised on well-
settled parameters, the Court may indeed put the defendants on terms including
imposition of compensatory costs and may also insist on affidavit, medical F
certificate or other documentary evidence (depending on the facts and
circumstances of a given case) being annexed with the application seeking
extension of time so as to convince the Court that the prayer was founded on
grounds which do exist.
The extension of time shall be only by way of exception and for reasons G
.... to be recorded in writing, howsoever brief they may be, by the court. In no
case, the defendant shall be permitted to seek extension of time when the
court is satisfied that it is a case of laxity or gross negligence on the part of
the defendant or his counsel. The court may impose costs for dual purpose:
(i) to deter the defendant from seeking any extension of time just for asking H
310 SUPREME COURT REPORTS [2005] 3 S.C.R.
A and (ii) to compensate the plaintiff for the delay and inconvenience caused
to him.
However, no .straitjacket formula can be laid down except that the
observance of time schedule contemplated by Order VIII Rule I shall be the
B rule and departure therefrom an exception, made for satisfactory ·reasons
only. We hold that Order VIII Rule I, though couched in mandatory form,
is directory being a provision in the domain of processual law.
We sum up and briefly state our conclusions as under :-
c (i) The trial of an election petition commences from the date of the
receipt of the election petition by the Court and continues till the
date of its decision. The filing of pleadings is one stage in the
trial of an election petition. The power vesting in the High Court
to adjourn the trial from time to time (as far as practicable and
without sacrificing the expediency and interests of justice) includes
D power to adjourn the hearing in an election petition affording
opportunity to the defendant to file written statement. The
availability of such power in the High Court is spelled out by the
provisions of the· Representation of the People Act, 1951 itself
and Rules made for purposes of that Act and a resort to the
provisions of the CPC is not called for.
E
(ii) On the language of Section 87(1) of the Act, it is clear that the
applicability of the procedure provided for the trial of suits to the
trial of election petitions is not attracted with all its rigidity and
technicality. The rules of procedure contained in the CPC apply
to the trial of election petitions under the Act with flexibility and
F
only as guidelines.
(iii) In case of conflict between the provisions of the Representation
of the People Act, 1951 and the Rules framed thereunder or the
Rules framed by the High Court in exercise of the power conferred
G by Article 225 of the Constitution on the one hand, and the
Rules of Procedure contained in the CPC on the other hand, the
fonner shall prevail over the latter. .....
(iv) The purpose of providing thetime schedule for filing the written
statement under Order VIII, Rule .1 of CPC is to expedit~ and not
H to scuttle the hearing. The provision spells out a disability on the
KAILASH v. NANHKU [LAHOTI, CJ.] 311
defendant. It does not impose an embargo on the power of the A
Court to extend the time. Though, the language of the proviso to
Rule l of Order VIII of the CPC is couched in negative form, it
does not specify any penal consequences flowing from the non-
compliance. The provision being in the domain of the Procedural
Law, it has to be held directory and not mandatory. The power B
of the Court to extend time for filing the written statement beyond
the time schedule provided by Order VIII, Rule l of the CPC is
not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural
- Law and hence directory, keeping in view the need for expeditious C
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 D
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 E
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. F
In the case at hand, the High Court felt satisfied that the reason assigned
by the defendant-appellant in support of the prayer for extension of time was
good and valid. However, the prayer was denied because the High Court felt
it had no power to do so. The written statement has already been filed in the
High Court. We direct that the written statement shall now be taken on record G
but subject to payment of Rs. 5000 by way of costs payable by the appellant
herein to respondent No. I i.e. the election petitioner in the High Court, within
a period of 4 weeks from today.
The appeal stands allowed in the above tenns.
H
312 SUPREME COURT REPORTS [2005] 3 S.C.R.
A No order as to the costs in this appeal.
Before parting we would like to state that the issue raised !n this appeal
' .
L
arises frequently before the courts and is of some significance affecting a
large number of cases, and so, in spite of the parties being represented by
learned counsel, we thought it fit to request Mr. Rakesh .Dwivedi, Senior
B Advocate and former Additional Solicitor General of India to assist the Court
as Amicus Curiae. He responded to the call of the Court and presented the
case from very many angles bringing to the notice of the Court a volume of
case law some of which we have referred to hereinabove. We place on record
our appreciation of the valuable assistance rendered by Mr. Rakesh Dwivedi,
C Senior Advocate: ·
R.P. Appeal allowed.
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