Bans Raj v. State of U.P. Through Collector Faizabad and Others

Court No. - 6 Case :- WRIT - C No. - 1000562 of 2012 Petitioner :- Bans Raj Respondent :- State Of U.P. Through Collector Faizabad And Others Counsel for Petitioner :- Manoj Sahu,Sonal Pandey Counsel for Respondent :- C.S.C.,Manish Kumar,R.N. Gupta,V.P. Maurya Hon'ble Alok Mathur,J.

¶1Heard Ms. Sonal Pandey, learned counsel for the petitioner as well as learned Standing counsel for the respondents.

¶2By means of the present wit petition the petitioner has challenged the order dated 24.5.2011 passed by Additional Civil Judge (Sr. Division(, Faizabad whereby he has rejected the application for adjournment filed by the petitioner and dismissed the suit as the petitioner has not filed the evidence despite repeated opportunities given to him. The petitioner has also challenged the order passed by District Judge, Faizabad in the revision preferred by the petitioner against the order dated

24.5.2011. The revisional court has also upheld the order of the trial court and rejected the revision.

¶3Learned counsel for the petitioner submits that the petitioner had filed a suit for permanent injunction in the year 2006 seeking a decree of order regarding Gata No.1458 area 0.3220 hectare situated in Village Bandanpur Pargana Amisin, Tehsil and District Faizabad. After filing the said suit on 18.5.2006 time was granted to the petitioner - plaintiff to file evidence but no evidence was filed and consequently on 24.5.2011 again application for adjournment was filed on behalf of the plaintiff. The same was rejected and considering the fact that despite repeated orders the evidence has not been filed the suit was dismissed.

¶4The revisional court also upheld the order of the trial court and taking into consideration the provisions of Order 17 Rule 3

(A) of CPC it was recorded that 12.10.2019 issues No. 2 and 3 of the suit were disposed of and 29.10.2009 was fixed for evidence by the plaintiff but despite time granted no evidence e was filed and repeatedly adjournment was sought on behalf of the plaintiff. Ground was taken by the plaintiff was not found satisfactory and sufficient and consequently the application for adjournment was rejected along with suit.

¶5Learned counsel for the petitioner on the other hand, submitted that on each date there was cogent reasons for seeking adjournment. He submits that on certain dates counsel for the plaintiff was not available and he had gone on personal family function while on certain dates adjournment was sought due to ill health of the plaintiff and accordingly, it cannot be said that the adjournment was unjustified. Learned counsel for the petitioner has vehemently submitted that in the interest of justice one opportunity may be given to the plaintiff to file evidence otherwise substantial rights of the plaintiff would be defeated.

¶6The 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 Section 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 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."

¶7By the 1999 Amendment Act the text of Order VIII, Rule 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 1.7.2002. 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". The text of Order VIII, Rule 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."

¶8Order VIII, Rule 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 Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 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.

¶9All 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.

¶10The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

¶11The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence-processual, as much as substantive. [See Sushil Kumar Sen v. State of Bihar (1975 (1) SCC 774].

¶12No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See Blyth v. Blyth (1966 (1) All E.R. 524 (HL)]. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See Shreenath and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827)].

¶13Processual 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.

¶14It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII 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.

¶15Challenge 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. 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 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 Order VIII Rule 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 Order VIII Rule 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. 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 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. Election Tribunal Kotah & Anr. [AIR 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; 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. "

¶16The position was examined in details in Kailash's case (supra) and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Others (2005(6) SCC 705).

¶17In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey (1987 (4) SCC (398), Gursharan Singh v. New Delhi Municipal Committee (1996 (2) SCC 459), Ohammod Gazi v. State of M.P. and others (2000(4) SCC 342) and Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. (2006 (1) SCC 46).

¶18It is submitted that in such circumstances in the interest of justice after imposing adequate considerations the court may grant opportunity to the petitioner to file evidence. Considering the facts and circumstances of the case, it is noticed that numerous adjournment have been sought by the plaintiff which had been granted by the trial court but on24.5.2011 the application was rejected. Thought this Court does not find any infirmity in the order but in the interest of justice and considering the request made on behalf of the petitioner one opportunity is granted to the petition to file evidence.

¶19In light of the above, let evidence be filed within one month from today before the trial court accordingly considering the grounds raised by the petitioner and also on equitable considerations the petition is allowed with a cost of Rs.25,000/- to be paid to State Government Treasury. The order dated

18.10.2011 and 24.5.2011 passed by opposite party No.s 6 and 5 are set aside.

¶20It is provided that this order is subject to the petitioner filing the evidence within thirty days from today before the trial court. Considering the fact that the matter has been pending for last more than 12 years the trial court is directed to decide the suit expeditiously, say within a period of one month from the date the evidence is filed by the plaintiff. (Alok Mathur, J.) Order Date :- 4.1.2024 RKM. High Court of Judicature at Allahabad, Lucknow Bench