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TMI Blog2005 (4) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant 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 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 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 briefly stating the reasons set out hereinbefore. On 23.8.2004, the High Court rejected the application filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings relating to such elections, as also for the decision of doubts 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 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; 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g day to be necessary for reasons to be recorded. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months 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 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions under the Representation of the People Act, 1951. xxx xxx xxx 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 subsection (1) 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 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 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 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 exped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , enforcing attendance of witnesses and compelling the production 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 would be a stage in the trial of an election petition. In Om Prabha Jain v. Gian Chand and another 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 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 at the time of passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of any special act would not be controlled by the proviso to sub-rule (1) 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 Ors. (1969) 1 SCR 630, that the CPC applies only subject to the provisions of the Act and the rules made thereunder. 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 1 Rule 10 or Order 6 Rule 17 of the CPC to avoid the penalty of dismissal of the petition. In Iridium India Telecom Ltd. v. Motorola Inc. JT 2005 (1) 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 1 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 Side) Rules; the High Court Rules were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time limit for filing the written statement within the allowance permitted by the Proviso to Order VIII Rule 1 of the CPC has come to an end. Alternatively, Order 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 1 of the CPC is 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 relating to the 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 Procedure (Amendment) Act, 1976 (104 of 1976) records the following basic considerations which persuaded the Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 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 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 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 St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1, this Court highlighted 3 principles while interpreting any portion of the 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 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 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. (iii) No forms or procedure should ever be permitted to exclude the presentation of the litigant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the noncompliance 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 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 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... move; may be he is lying unconscious. Also, the person entrusted with the job of presenting a written statement, complete 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.1 submitted that if the court 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 1 in the present form 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 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 1. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position of compensatory costs and may also insist on affidavit, medical 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 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 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 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order VIII Rule 1, though couched in mandatory form, is directory being a provision in the domain of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , keeping in view the need for expeditious 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 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 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. In the case at hand, the High Court felt satisfied that the reason assigned by the defendant-appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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