RANI KUSUMversusKANCHAN DEVI AND ORS.

A                             RANI KUSUM
                                   v.
                         KANCHAN DEVI AND ORS.

                              AUGUST 16, 2005
B
                   [ARIJIT PASAYAT AND H.K. SEMA, JJ.]

         Code of Civil Procedure, 1908-0rder VI!l Rule I (As amended by
    Code of Civil Procedure (Amendment) Act, 2002-Written statement filed
    beyond maximum period-Acceptance of-Held: It was in discretion of
C   court-Amended Order VIII, Rule I though worded in negative form, was
    not mandatory keeping in view the context in which it was enacted-Neither
    the power of Court to take on record written statement filed beyond time
    is specifically taken away nor consequences of non-extension of time
    specifically provided for.
D
         Respondent was served with summons issued by the trial court.
    They filed their written statement beyond 90 days, which was the
    magimum period allowed, apart from the normal period of30 days from
    the date of service of summons. Appellant objected to same. However,
    Trial Court accepted the written statement, and High Court dismissed
E   appeal of appellant against same. Hence the present appeal.

         Appellant contended that after substitution of Order VIII, Rule 1
    by Code of Civil Procedure (Amendment), 2002, the court had no
    discretion to extend the period for filing the written statement beyond
F   the maximum period.

         Dismissing the appeal, the Court

          HELD : 1. Order VII, Rule 1 after the amendment casts an obli-
    gation on the defendant to file the written statement within 30 days from
G   the date of service of summons on him and within the extended time
    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 the time
    as provided for. Further, the nature of the provision contained in Order
H   VIII Rule 1 is procedural. It is not a part of the substantive law.
                                        752
                  RANI KUS UM v. KANCHAN DEVI                         753

Substituted Order VIII, Rule I intends to curb the mischief of               A
unscrupulous defendants adopting dilatory tactics, delaying the disposal
of cases causing inccnvenience to the plaintiffs and petitioners ap-
proaching 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 scuttle the same. While justice        B
delayed may amount to justice denied, justice hurried may in some cases
amount to justice buried. [756-C, D, El

     Sushi/ Kumar Sen v. State ofBihar, [ 1975) I SCC 774; Shreenath and
Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred to.
                                                                             c
     Blyth v. Blyth, 1966 I All. E.R. 524 (HL), referred to.

     2. 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     D
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, rhay, keeping in view the entire
context in which the provision came to be enacted, hold the same to be
                                                                             E
directory though worded in negative form. [757-E, F]

     Salem Advocate Bar Association, Tamil Nadu v, Union of India, JT
(2005) 6 SC 486, followed.
                                                                             F
     Kai/ash v. Nankhu and Ors., [2005[ 4 SCC 480, relied on.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5066 of
2005.

     From the Judgment and Order dated 8.10.2004 of the Patna High Court     G
in C.R. No. 1285 of 2004.

     Nishakant Pandey and Alok Kumar for the Appellant.

     Aman Lekhi, Rajiv Ranjan Dwivedi, Nagendra Kumar, Harish Pandey,        H
    754                   SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A   Syamel Kumar, Rakesh Kumar and Jaspreet Singh Rai for the Respondents.

          The Judgment of the Court was delivered by

          ARIJIT PASAYA T, J. : Leave granted.

B        Order passed by a learned Single Judge of the Patna High Court is the
    subject-matter of challenge in this appeal. By the impugned order the
    learned Single Judge found no substance in the plea of the appellant that
    there was non-compliance with the requirements of Order VIII Rule 1 of
    the Code of Civil Procedure, 1908 (in short 'CPC') as amended by the Code
C   of Civil Procedure (Amendment) Act, 2002 (in short the' Amendment Act').

         Factual position is almost undisputed and, therefore, need not be
    elaborated.

D         Respondent was served with summons issued by the trial Court on
    10.11.2003 and the written statement was filed on 10.7.2004. According to
    the learned counsel for the appellant, the written statement should not have
    been entertained as it was filed beyond 30 days (which is the normal period)
    and even beyond 90 days which is the maximum period. By order dated
    12.8.2004 learned Subordinate Judge accepted the written statement which
E   had been filed and rejected the prayer of the appellant to reject the written
    statement filed. According to the appellant after amendment of CPC the
    Court has no discretion to extend the period for filing the written statement
    beyond 90 days from the date of service of summons even where the Court
    extends the time beyond 30 days.
F
          Learned counsel for the appellant submitted that the amendment re-
    quiring filing of the written statement within the stipulated time is intended
    to avoid delay in disposal of suits and to avoid unnecessary harassment to
    the litigants. Learned counsel for the respondents on the other hand submit-
    ted that the provisions of Order VIII Rule 1 of CPC are directory and when
G   written statement has already been filed and accepted by the trial Court, the
    High Court has rightly rejected appellant's plea.

         The scope and ambit of Order VIII Rule I of CPC has been examined
    in detail by this Court in Kai/ash v. Nanhku and Ors., [2005] 4 SCC 480.
H
           RANI KUSUM v. KANCHAN DEVI [PASAYAT, J.]                      755

      The CPC enacteJ in 1908 consolidated and amended the laws relating         A
to the procedure of the Courts of Civil Judicature. It has undergone several
amendments by several Acts of Central and State Legislatures. Under Sec-
tion 122 CPC the High Courts have power to amend by rules, the procedure
laid down in the Orders. In exercise of these powers various amendments
have been made in the Orders by various High Courts. Amendments have             B
also been made keeping in view recommendations of Law Commission.
Anxiety of Parliament as evident from the amendments is to secure an early
and expeditious disposal of civil suits and proceedings 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 Procedure (Amendment) Act, 1976 (104 of 1976) (in short
                                                                                 c
'1976 Amendment Act') highlight following basic considerations in enact-
ing the amendments:-

         (i)   with the accepted principles of natural justice that a litigant
               should get a fair trial in accordance;                            D

         (ii) that every effort should be made to expedite the disposal of
              civil suits and proceedings) so that justice may not be delayed;

         (iii) that the procedure should not be complicated and should, to       E
               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."

     By Code of Civil Procedure (Amendment) Act, 1999 (46of1999) (in
short the 'the 1999 Amendment Act') the text of Order VIII, Rule I was           F
sought 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
yermit the time being extended beyond 30 days from the date of service of
summons on the defendant. Due to resistance from the members of the Bar
against enforcing such and similar other provisions sought to be introduced      G
by way of amendment, the Amendment Act could not be promptly notified
for enforcement. The text of the provision in the present form has been
introduced by the Amendment Act with effect from 1.7.2002. The purpose
of such like amendments is stated in the Statement of Objects and Reasons
as "to reduce delay in the disposal of civil cases".
                                                                                 H
    756                   SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A         The text of Order VIII, Rule I, as it stands now, reads as under:-

             "I. Written statement.-The defendant shall, within thirty days
             from the date of service of summons on him, present a written
             statement of his defence:
B
                   Provided that where the defendant fails to file the written
             statement within the said period of thirty days, he shall be allowed
             to fih: the same on such other day, as may be specified by the Court,
             for reasons to be recorded in writing, but which shall not be later
             than ninety days from the date of service of summons."
c
          Order VIII, Rule I 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 power of the court and also does
D    not specifically take away the power of the court to take the written state-
    ment on record though filed beyond the time as provided for. Further, the
    nature of the provision contained in Order VIII, Rule I 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,
E   delaying the disposal of cases causing inconvenience to 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 scuttle the same. While
    justice delayed may amount to justice denied, justice hurried may in some
    cases amount to justice buried.
F
         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 remain;S that the object of prescribing procedure is to advance
    the cause of justice. In an adversarial system, no party should ordinarily be
G   denied the opportunity of participating in the process ofjustice 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 ex-
    traordinary situations in the ends of justice.

H
           RANI KUSUM v. KANCHAN DEVI [PASA YAT, J.]                      757

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

      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 consid-        B
eration 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 Sushi/ Kumar
Sen v. State of Bihar, [1975] I SCC 774.

      No person has a vested right in any course of procedure. He has only        C
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] I All E.R. 524
HL). A procedural law should not ordinarily be construed as mandatory, the        D
procedural law is always subservient to and is in aid to justice. Any inter-
pretation which eludes or frustrates the tecipient of justice is not to be
followed. (See Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC I 827)

     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      E
mistress, a lubricant, not a resistant in the administration of justice.

     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 non-      F
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
came to be enacted, hold the same to be directory though worded in the            G
negative form.

    Challenge to the Constitutional validity of the Amendment Act and
1999 Amendment Act was rejected by this Court in Salem Advocate Bar
                                                                                  H
    758                  SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A   Association, Tamil Nadu v. Union of India, JT (2002) 9 SC 175. However
    to work out modalities in respect of certain provisions a Committee was
    constituted. After receipt of Committee's report the matter was considered
    by a three-Judge Bench in Salem Advocate Bar Association, Tamil Nadu v.
    Union of India, (JT 2005 (6) SC 486). As regards Order VIII Rule 1
B   Committee's report is as follows:

                  "The question is whether the Court has any power or jurisdic-
            tion to extend the period beyond 90 days. The maximum period of
            90 days to file written statement has been provided but the conse-
            quences on failure to file written statement within the said period
c           have not been provided for in Order Vlll 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.
D
                  It has been common practice for the p<1rties 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
E           directory nature of Order Vlll Rule 1 shall have to be determined · •
            by having regard to the object sought to be achieved by the amend-
            ment. It is, thus, necessary to find out the intention of the legisla-
            ture. The consequences which may follow and whether the same
            were intended by the legislature have also to be kept in view.
F
                  In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal
            Board, Rampur, AIR (1965) SC 895, a Constitution 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
G           for that purpose the object of the statute in making out the provision
            is the determining factor. The purpose for which the provision 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
       RANI KUSUM v. KANCHAN DEVI [PASAYAT, J.j                      759

     dealing with the same subject and other considerations which may        A
     arise on the facts of a particular case including the language of the
     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            B
     ( 1955) 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;      C
          not a thing designed to trip people up. Too technical construc-
          tion of ~ections that leaves no room for reasonable elasticity
          of interpretation should therefore be guarded against (pro-
          vided always that justice is done to both sides) lest the very
          means designed for the furtherance of justice be used to           D
          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         E
          backs, that proceedings that affect their lives and property
          should not continue in their absence and that they shc .. Jd 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    p
          proviso, our laws of procedure should be construed, wherever
          that is reasonably possible, in the light of that principle."

           In Topline Shoes Ltd. v. Corporation Bank, [2002] 6 SCC 33,
     the question for consideration was whether the State Consumer
     Disputes Redressal Commission could grant time to the respondent        G
     to file reply beyond total period of 45 days in view of Section 13(2)
     of the Consumer Protection Act, 1986. It was held that the intention
     to provide time frame to file reply is really made to expedite the
     hearing of such matters and avoid unnecessary adjournments. It
     was noticed that no penal consequences had been prescribed if the       H
    760                SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.

A         reply is not filed in the prescribed time. The provision was held to
          be directory. It was observed that the provision is more by way of
          procedure to achieve the object of speedy disposal of the case.

                The use of the word 'shall' in Order VIII Rule 1 by itself is
          not conclusive to determine whether the provision is mandatory or
B
          directory. We have to ascertain the object which is required to be
          served by this provision and its design and context in which it is
          enacted. The use of the word 'shall' is ordinarily indicative of
          mandatory nature of the provision but having regard to the context
          in which it is used or having regard to the inte11tion of the legis-
c         lation, the same can be construed as directory. The rule in question
          has to advance the cause of justice and not to defeat it. The rules
          of procedure are made to advance the cause of justice and not to
          defeat it. Construction of the rule or procedure which promotes
          justice and prevents miscarriage has to be pn:ferred. The rules or
D         procedure are handmaid of justice and not its mistress. In the
          present context, the strict interpretation would defeat justice.

                In construing this provision, support can also be had from
          Order Vlll Rule 10 which provides that where any party from
          whom a written statement is required under Rule 1 or Rule 9, fails
E         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
F         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
G         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
H          expiry of ninety days, further time cannot be granted. The Court
          RANI KUSUM v. KANCHAN DEVI [PASAYAT, J.]                      761

        has wide power to 'make such order in relation to the suit as it        A
        thinks fit'. Clearly, therefore, the provision of Order Vlll Rule l
        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        B
        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 Vlll Rule I."

     The Bench in para 54 after considering the Committee's report has          C
observed as follows:

             "Having regard to the constitutional obligation to provide fair,
        quick and speedy justice, we direct the Central Government to
        examine the aforesaid suggestions and submit a report on this Court     D
        within four months."

      After elaborating the purpose for introduction of Order VIII Rule l,
this Court in Kai/ash's Case (supra) at paragraph 4? observed that no
straightjacket formula can be laid down except that observance of time
schedule contemplated by Order Vlll Rule 1 shall be the rule and departure      E
therefrom an exception, made for satisfactory reasons only. The conclusions
have been summed up in Para 46. The relevant portion reads as follows:

        "(iv) the purpose of providing the time schedule for filing the
        written statement under Order Vlll Rule 1 CPC is to expedite and        p
        not to scuttle 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 Order VIIJ 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      G
        be held directory and not mandatory. The power of the Court to
        extend time for filing the written statement beyond the time sched-
        ule provided by Order VIII Rule I     ere   is not completely taken
        away.
                                                                                H
    762                   SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A            (v) Though Order VIII Rule I CPC is a part of procedural law and
             hence directory, keeping in view the need for expeditious trial of
             civil cases which persuaded 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
B
             by the defendant shall not be granted just as a matter of routine and
             merely for the 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
c            satisfied. Extension of time may be allowed if it is needed to be
             given for 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
D            pleaded by the defendant for extension of time may be demanded,
             depending on the facts and circumstances of a given case."

         In view of the above, the appeal is without merit and is dismissed but
    without any order as to costs.

    V.S.S.                                                     Appeal dismissed.