Ends of Justice - interpretation of Procedural provisions

AIR 2006 SC 396

Para 7: The CPC enacted in 1908 consolidated and amended the laws relating to the procedure of the courts of Civil Judicature. It has undergone several amendments by several Acts of Central and State Legislatures. Under sec. 122 of the Code of Civil Procedure 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 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' 1976 Amendment Act') highlights following basic considerations in enacting the amendments:-

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

(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 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."

Para 8: By the 1999 Amendment Act the text of Or. 8, R. 1 was 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 permit 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 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 1.07.2002. 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".

Para 9: The text of Or. 8, R. 1, as it stands now, reads as under: -

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

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the 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."

Para 10: Or. 8, R. 1 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 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 Or. 8, R. 1 is procedural. It is not a part of the substantive law. Substituted Or. 8, R. 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, 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.

Para 11: 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.

Para 12: The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

Para 13: The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive.

Para 14: 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. A procedural law should not ordinarily be construed as mandatory, the procedural law is always sub-servient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.

Para 15: 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.

Para 16: It is also to be noted that though the power of the Court under the proviso appended to R. 1 of Or. 8 is circumscribed by the words - "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 came to be enacted, hold the same to be directory though worded in the negative form.

Para 17: Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Association, Tamil Nadu V/s. Union of India. 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/s. Union of India. As regards Or. 8 R. 1 Committee's report is as follows:

"The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Or. 8 R. 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Or. 8 R. 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view.

In Raza Buland Sugar Co. Ltd., Rampur V/s. The Municipal Board, Rampur 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 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 dealing with the same subject and other considerations which may 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/s. Election Tribunal Kotah & Anr.considering the provisions of the Code dealing with the trial of the suits, it was opined that: "Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their 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 exceptions 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. "

Para 18: In Kailash V/s. Nanhku and Rani Kusum (Smt.) V/s. Kanchan Devi (Smt.) and Others similar view was expressed.

Procedural Laws

Procedure – where Statute lays down a procedure – has to be followed – CIC versus State of Manipur – 2012 (1) All MR 948 (SC) – Paras 35, 8, 11, 17, 20, 30, 31, 32, 42, 45, 36, 37

Gujrat Urja Vikas Nigam Ltd versus Essar Power Ltd – 2008 (4) SCC 755.

Not following a procedural aspect amounts to waiver of that procedural aspect – State of Punjab versus Davinder Pal Singh.

No one has a vested right in the procedural laws – Anant Gopal versus State of Bombay – AIR 1958 SC 915 – Para 4.

Shamlal Alias Kuldip versus Sanjeev Kumar – (2009) 12 SCC 454 – Para 22.

Rajesh Bhalchnadra Chalke versus State of Maharashtra – Para 31, 32 – Evidence.

Conflict of Statutory provisions and Bye laws – 2012 (2) All MR 910 – Para 22

2012 (2) All MR 656 – Paras 14, 16

Procedural and Substantive law

(2011) 6 SCC 321, Paras 16, 29, 31 to 37;

“Hearing by the Court” – Civil and Criminal

(2011) 6 SCC 321, Paras 39 to 42

Failure of Justice

AIR 1956 SC 116, Para 45

Where there is right there is remedy

(2009) 5 SCC 162, Para 47;

Rights of the parties should be determined on the basis of the rights existing on the date of the institution of the Suit or proceedings. Ye the Court is empowered to take into account subsequent events – (2004) 8 SCC 76, Para 16.

Presumption of Service by Regd Post – Section 114(f) of Evidence Act

(2011) 3 SCC 545, Paras 17, 19

Administering of Oath – Purpose of – (2012) 5 SCC 789, Paras 24, 26 to 30

Court Orders - Technical Shortcomings should be ignored

A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. [ Saiyad Mohd. V Abdulhabib, (1988) 4 SCC 343.]

A Party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Rules of Procedure are intended to be a handmaid to the Administration of Justice and they must therefore be construed liberally and in such manner as to render the enforcement of substantive rights effective. . [Ram Manohar Lal Vs NBM Supply, AIR 1969.]

On the question of Jurisdiction, one must always have regard to the substance of the matter and not to the form of the Suit. [Bank of Baroda V Motibhai, AIR 1985.]

Common sense should not be kept in the cold storage when pleadings are construed. Parties win or lose on substantial questions, not on technical tortures and Courts cannot be "abettors".[ Noronha V Prem Kumari, AIR 1980.]

We cannot be oblivious of facts of life, namely the parties in Courts are mostly ignorant and illiterate, unversed in Law. Sometimes there Counsels are also inexperienced and not properly equipped, and the Court should endeavor to ascertain the truth to do justice to the parties. [ Pahali Raut V Khulana Bewa, AIR 1985.]

Justice Sethi stated, "In a Country like Ours where people consider Judges only second to God, efforts be made to strengthen that belief. [ Anil Rai V St Of Bihar, AIR 2001.]

Every venial defect or error not going to the root of the matter cannot be allowed to defeat justice or afford an excuse to the Govt or a public officer to deny just claim. [Jones V Nicholls, (1844) 13 M & W 361.]

The judges need to be reminded, humbly, they are dealing with human lives, and not merely web of statements of law.

It is submitted that following observation of JUSTICE MUDHOLKAR in Raghubir Saran versus State of Bihar, lay down the correct law on the point – “The Courts exist not only for securing obedience to law of the land but also for securing ends of justice in its widest sense. All Courts, including the HC can exercise such powers as the law of the land confers upon them as well as such inherent powers to do justice as are preserved expressly or are not taken away by a Statute.

Procedural / technical objections should not defeat substantial rights – (2003) 3 SCC 272, Paras 26, 31.

Sandeep Jalan

Advocate

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