2005 (8) TMI 709 - SC - Indian Laws

Non-compliance with the requirements of Order VIII Rule 1 of the Code of Civil Procedure 1908 ( CPC ) as amended by the Code of Civil Procedure (Amendment) Act 2002 ( Amendment Act ) - HELD THAT - The use of the word shall in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or 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 intention of the legislation 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 preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context the strict interpretation would defeat justice. 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 expiry of ninety days further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit . Clearly therefore the provision of Order VIII Rule 1 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 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 VIII Rule 1. Thus the appeal is without merit and is dismissed but without any order as to costs.

Summary

Issues Involved:
1. Non-compliance with Order VIII Rule 1 of the Code of Civil Procedure, 1908.
2. Discretion of the court to extend the period for filing a written statement beyond 90 days.
3. Interpretation of procedural laws as mandatory or directory.

Issue-wise Detailed Analysis:

1. Non-compliance with Order VIII Rule 1 of the Code of Civil Procedure, 1908:
The appellant contended that the written statement filed by the respondent was beyond the stipulated 30 days and the extended period of 90 days as per Order VIII Rule 1 of the CPC, 1908, as amended by the Amendment Act, 2002. The trial court had accepted the written statement filed on 10.7.2004, which was beyond the permissible period, and the appellant's plea to reject the written statement was dismissed by the learned Subordinate Judge on 12.8.2004. The appellant argued that post-amendment, the court has no discretion to extend the period for filing the written statement beyond 90 days from the date of service of summons.

2. Discretion of the court to extend the period for filing a written statement beyond 90 days:
The respondent argued that the provisions of Order VIII Rule 1 are directory, not mandatory, and the court retains the discretion to accept a written statement even beyond the 90-day period. The Supreme Court examined the scope and ambit of Order VIII Rule 1 in light of the legislative intent to expedite civil proceedings without sacrificing fairness and natural justice. It was observed that the provision casts an obligation on the defendant to file the written statement within 30 days, extendable up to 90 days. However, it does not explicitly take away the court's power to accept a written statement filed beyond this period. The court emphasized that procedural laws are meant to advance justice, not obstruct it.

3. Interpretation of procedural laws as mandatory or directory:
The Supreme Court referred to its earlier judgment in Kailash v. Nanhku and Ors., where it was held that procedural laws, although couched in mandatory language, should be interpreted as directory to avoid injustice. The court highlighted that procedural prescriptions are handmaids of justice and should not be construed to deny parties the opportunity to participate in the justice dispensation process. The court also cited the Committee's report on the Amendment Act, which suggested that the 90-day period for filing a written statement is directory, allowing the court discretion in exceptional cases. The court must exercise this discretion sparingly and only in cases where grave injustice would result from strict adherence to the procedural timeline.

Conclusion:
The Supreme Court concluded that the appeal lacked merit and dismissed it without any order as to costs. The court reaffirmed that while the time schedule for filing a written statement under Order VIII Rule 1 CPC is to be ordinarily followed, the court retains the discretion to extend this period in exceptional cases to prevent grave injustice. The provision is procedural and directory, aimed at expediting trials without compromising the principles of natural justice.