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2005 (8) TMI 727 - MADHYA PRADESH HIGH COURT
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... ... ..... cuted by Ramdas and others in favour of the Respondent; and that in view of this admission, the case would fall under Clause (b) of Section 65 enabling him to let in secondary evidence. We, however, find that the alleged written admission (Plaint in the specific performance suit) was not produced and there is no material to decide whether the matter would fall under Section 65(b). Further, that is not the ground on which the trial Court allowed the application of the respondent herein to let in secondary evidence. It is open to the respondent to place material to show that the case would fall under Clause (b) in which even he may still be entitled to give secondary evidence in regard to sale deed. Alternatively, it is open to her to take steps to secure the original, We therefore set aside the order dated 22-2-2005 of the trial Court passed in Civil Suit No. 423-A/2002 (new No. 20-A/2004) and remit the matter for fresh consideration of the application in accordance with law.
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2005 (8) TMI 726 - DELHI HIGH COURT
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... ... ..... Service Tax Appellate Tribunal (CESTAT). I is well-known principle of law that a person is entitled to protection from the moment he enters the portals of the Court. In the present case, keeping the detailed hearing that was being undertaken, an existence of a prima facie case was evident to al Conditional on the Petitioner filing its Appeal before Customs Excise and Service Tax Appellate Tribunal (CESTAT) within a period of fifteen days from today, the Notification dated 19.7.2005 shall remain stayed till the date on which the Tribunal fixes the matter for public hearing. Mr.Tiku, learned counsel for the UOI, states that this Court may direct that the Appeal be listed before the Tribunal in the month of August since there is an apprehension that despite the Orders of this Court that may not happen as delays may be caused in the CESTAT Office. This is without prejudice to the rights of parties to assail this Order. The Writ Petition stands disposed of in these terms. Dasti.
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2005 (8) TMI 725 - SUPREME COURT
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... ... ..... me. Though the interest is claimed at 18% p.a. by the State, we cannot also shut our eyes at the prevailing bank rate for fixed deposits and for lending which is not more than 6-7%. Without going into the merits of the rival claims any further, we feel that the interest of justice would be amply met if we direct the appellant herein to pay a sum of ₹ 1 lakh in full satisfaction of the claim made by the State of Rajasthan. ₹ 1 lakh shall be paid within a period of two months from today, failing compliance, the appellant is liable to pay interest @ 18% p.a. on ₹ 37,593/- from 17.10.1992 till the date of payment. Till the sum of Rs.one lakh is paid, there will be a charge over the property bearing House 80B Block Sri Ganganagar. The appellant shall not alienate or encumber in any manner the property bearing House No. 80B Block Sri Ganganagar till the sum of Rs. One lakh is paid and discharged. The appeal stands disposed of. There shall be no order as to costs.
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2005 (8) TMI 724 - COMPANY LAW BOARD, SOUTHERN REGION BENCH, CHENNAI
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... ... ..... ity set out hereinabove could not be resolved on the strength of the averments made in the affidavits filed by the parties and further for want of proper explanation on a number of inconsistencies discussed elsewhere, which, in my considered view, could only be decided on trial by evidence. I am, therefore, constrained to refuse the relief of rectification of the register of members of the Company under Section 111A as claimed by the petitioner and relegate the parties to a civil suit. Ordered accordingly. The parties having been relegated to a civil suit for resolving the controversies, I do not find any need to go into any of the other decisions cited by the learned Counsel in relation to inter-alia, the enforcement of securities; validity of the transfer of shares impugned in the company petition etc. With these directions, the company petition and the company application (CA 74/05) calling for certain documents from the petitioner stand disposed of. No order as to costs.
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2005 (8) TMI 723 - MADHYA PRADESH HIGH COURT
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... ... ..... Architects" or 'Architects' in regard to posts for which the qualification of 'Registered Architect' is not prescribed. It shall also cease designating those who are not registered Architects under the Architects Act, 1972, as 'Architects' or 'Assistant Architects', (ii) If the State Government wants to continue the nomenclature of 'Assistant Architect" en 'Architects', then while prescribing the qualification for appointment or promo lion to such posts, the requirement that they shall be 'Registered Architects' under the Architects Act, 1972, shall be added. (iii) The State shall give preference to Registered Architects (under the Architects Act, 1972) for appointment to any post of Architects (that is post involving architectural functions) as provided in Section 35(2) of the Architects Act, 1972. (iv) The State shall comply with the aforesaid directions within four months from the date of receipt of this order.
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2005 (8) TMI 722 - BOMBAY HIGH COURT
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... ... ..... adjudicate the dispute or dismiss it on the ground that cause of action no longer survives. This would again require the Tribunal to spend valuable judicial time and it is in order to avoid this has the power been conferred on the Tribunal. That is the only meaning that can be assigned to the proviso. It is impossible to hold that the proviso restricts the right of the secured creditor to move under the Securitisation Act. 12. For all the aforesaid reasons we find no merit in this petition and consequently rule is discharged. On behalf of the petitioners, their learned Counsel sought continuation of the stay granted by D.R.T. on 4-5-2005 and which was continued by this Court on 20th May, 2005. In our opinion, bearing in mind the object with which the Securitisation Act has been introduced, this would not be a fit case to grant continuation of interim relief and consequently the plea is rejected. In the circumstances of the case, however, there shall be no order as to costs.
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2005 (8) TMI 721 - SUPREME COURT
Jurisdiction Of High Court to extend the time for depositing the money, awarded from Lok Adalat - Validity of order of Lok Adalat based on mutual compromise - High court set aside the order of Lok Adalat - Suit for partition and separate possession of property - Compromise entered into between parties - HELD THAT:- It is seen from the records that the Appellant was compelled to file the suit for recovery of possession of Plot No. 2 since the Respondent herein refused to comply with the terms of the compromise arrived at between the parties. The suit was decreed on 26.7.1990 and appeal was filed by the Judgment Debtor Respondent before the District Court and during the pendency of the appeal the matter was compromised between parties on 5.10.1999.
We have already extracted the terms of compromise in paragraph supra. It is thus clear that the decree holder Appellant has approached the executing court on the ground that the Judgment debtor/ Respondent failed to execute the sale deed after receiving ₹ 9.5 lakhs from the decree holder. Therefore the Appellant prayed before the Executing Court that he should be permitted to deposit ₹ 9.5 lakhs in that court and get the documents executed through court if the Judgment debtor failed to do so on issuance of notice for the purpose by the executing court. The respondent submitted that the compromise arrived at is a conditional one and Judgment debtor is liable to execute the sale deed in favour of the decree holder only if he remits the amount as agreed, and since decree holder has failed to comply with the conditions the Judgment debtor is not bound by the terms of the compromise. On the other hand the respondent/J.D. was ready and willing to deposit ₹ 3.5 lakhs before the executing court as per the terms of the compromise.
The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act.
In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion, includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The effect is the same. In this connection, the High Court has failed to note that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever. The view taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless.
The High Court, in our view, has failed to note that the courts attempt should be to give life and enforceability to the compromise award and not to defeat it on technical grounds. This is a fit case, in our view, where the Respondent ought to have been directed to execute the sale deed by the extended time, if necessary. The High Court is also not correct in holding that the Court has no jurisdiction to extend the time. In our view, the learned Subordinate Judge has rightly extended the time for depositing the money which the High Court has wrongly interfered with.
We, therefore, hold that the order passed by the High Court in C.R.P. 1136/2003 is liable to be set aside. We do so accordingly. We direct the Respondent herein to execute the sale deed within two weeks from today failing which the Appellant could get the sale deed executed though court as stipulated in the award. The respondent is now entitled to withdraw ₹ 9.5 lakhs from the Sub-Court Alapuzha. Though this is a fit case for awarding cost, we refrain from doing so in view of the relationship between the parties.
The appeal is allowed.
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2005 (8) TMI 720 - BOMBAY HIGH COURT
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... ... ..... ppellant for setting aside the order. Even though the contention was urged, in our opinion, on the fact of the present case, it will not be possible for us to hold that there was no charge created in favour of respondent-Bank for 7 acres 9 gunthas of survey No. 61. That issue, if available to the Appellant, can be considered in appropriate proceedings, that the appellant may take under the provisions of the Securitisation Act and/or the R.D.B. Act and to which the appellant is entitled to. 7. With the above discussion, we pass the following order - It would be open to the appellant to either move under the provisions of the Debts Recovery Act for setting aside the order passed by the Tribunal and/or to apply under Section 17 of the provisions of the Securitisation Act and/or any other provisions, if it is still the contention that, there was no charge created in respect of a part of the property sold by the Respondent. With the above direction, the appeal stands disposed of.
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2005 (8) TMI 719 - SUPREME COURT
Seeking waiver of claim of interest over the arrears which remain unpaid - stay granted by the Court - Application for temporary injunction u/s 12-A - HELD THAT:- In view of the judgments in Style (Dress Land) vs. Union Territory [1999 (8) TMI 969 - SUPREME COURT], Kanoria Chemicals & Industries Ltd. vs. U.P. State Electricity Board [1997 (3) TMI 600 - SUPREME COURT], we need not dilate on the subject any more and respectfully following the dictum in these judgments, set aside the part of the order reproduced in the earlier part of this order and the appellants shall be entitled to charge interest for the period during which stay granted by the Commission was in operation. Although the amount of interest in brochure is stated to be 20% which is unconscionable in the facts and circumstances of the case, we reduce the same to15% per annum. The appellants shall be entitled to charge interest on the amount due for the period during which stay remained in operation at the rate of 15% per annum.
In case the possession of the house has not been handed over to the respondent, then the appellants shall handover the possession of the house on payment of the principal amount, if any, not already paid along with interest for the period during which the stay granted by the Commission was in operation.
Appeals are partly allowed with no order as to costs.
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2005 (8) TMI 718 - DELHI HIGH COURT
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... ... ..... ases which cannot fairly fall under this category. It is the duty of Court to amplify act of justice rather than jurisdiction or authority. It is a matter of common knowledge that denial by a party is the easiest method of delaying the proceedings before the Court and in fact without being subjected to rigors of high cost and penal loss. A plea which is put forward by the defendant should go to the root of the liability and must raise an issue which in law would be triable. 8. Keeping in view the facts and circumstances of the case, the plaintiff would be entitled to receive interest 6 from the date of institution of the suit till realisation of the amount on the principal sum of ₹ 19.5 lacs. The plaintiff would also be allowed to the costs of the suit. 9. The decree is passed in favor of the plaintiff and against the defendants in the above terms. The Registry shall draw decree in terms thereof. All the seven applications aforenoticed are also disposed of accordingly.
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2005 (8) TMI 717 - SUPREME COURT
State Government's employees - Seeking higher quantum of death-cum-retirement gratuity - Whether the decision of the Central and State Governments to restrict the revision of the quantum of gratuity as well as the increased ceiling of gratuity consequent upon merger of a portion of dearness allowance into dearness pay reckonable for the purpose of calculating gratuity, was irrational or arbitrary - HELD THAT:- It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/ State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.
Even at that time, interestingly, the benefits were not made admissible from 1.3.1988, i.e. the date of the Average Consumer Price Index of 729.91, but from a much further date i.e. 16.9.1993. The Central Government adopted the same policy while issuing the O.M. dated 14.7.1995. Although, dearness allowance linked to the All India Average Consumer Price Index 1201.66 (as on 1.7.1993), was treated as reckonable part of dearness allowance for the purpose of calculating the death-cum-retirement gratuity, the benefit was actually made available to the employees who retired or died on or after 1.4.1995. Similarly, the increase in the ceiling of gratuity was a mere consequential step, which was also made applicable from 1.4.1995. As we have already noticed, 1.4.1995 was the date suggested by the Fifth Central Pay Commission ("Pay Commission") in its Interim Report. The Central Government took a conscious stand that the consequential financial burden would be unbearable.
It, therefore, chose to taper down the financial burden by making the benefits available only from 1.4.1995. It is trite that, the final recommendations of the Pay Commission were not ipso facto binding on the Government, as the Government had to accept and implement the recommendations of the Pay Commission consistent with its financial position. This is precisely what the Government did. Such an action on the part of the Government can neither be characterized as irrational, nor as arbitrary so as to infringe Article 14 of the Constitution.
More recently, in Veerasamy [1999 (3) TMI 677 - SUPREME COURT], this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis. In that case, the pension scheme applied differently to persons who had retired from service before 1.7.1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.
In the result, we set aside the common judgment and order of the High Court of Punjab & Haryana in CWP and in connected matters decided thereby, in so far as they purport to grant the revised death-cum- retirement gratuity to government employees who died or retired before the prescribed cut-off date of 1.4.1995. We also set aside judgment and orders of the High Court of Himachal Pradesh in CWP.
We further allow Civil Appeal, Civil Appeal @ SLP (C) and T.C. (and set aside the order dated 21.9.2001 of the CAT (Mumbai Bench) in O.A. and dismiss Civil Appeal.
In the circumstances of the case, there shall be no order as to costs.
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2005 (8) TMI 716 - SUPREME COURT
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... ... ..... pelled to give evidence against himself. He submitted that once the police had accosted the respondent, who was suspected of possessing contraband opium, he must be deemed to be under arrest, and if he was under arrest, any confession made by him cannot be used against him. We do not find that in this case, the respondent was under arrest merely because he was questioned by the police on suspicion. Moreover, there is nothing on record to suggest that he was compelled to make a confession. The submission that compelling a person to be searched amounts to confession must be rejected. We do not find any other reason to support the judgment of acquittal passed by the High Court. We, therefore, set aside the impugned judgment and order of the High Court and restore the judgment and order of the Special Judge, NDPS Cases, Chittorgarh dated May 5, 2000. The appellant shall be taken into custody forthwith to serve out the remainder of the sentence. The appeal is accordingly allowed.
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2005 (8) TMI 715 - DELHI HIGH COURT
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... ... ..... fendant had in earlier proceedings posited that there was no arbitration agreement between itself and the plaintiff. Assuming that such an agreement existed the Defendant has taken sundry legal steps in various civil Courts notwithstanding. The Defendant is not rendered remediless. All that has happened is that it must pursue the protection of its interests in a Civil Court rather than an Arbitral Tribunal. 26. Arbitration proceedings requested for by Defendant No. 1 DSS Enterprises Pvt. Ltd. vide letter dated 22.8.2003, and the operation of letter dated 28.8.2003 of the ICC, International Court of Arbitration are stayed during the pendency of the suit. 27. I.A. 9735/2003 stands allowed of accordingly. IAs No. 9923/2003 & 9925/2003 28. Since the interim Order has been made absolute I am satisfied that it should be extended to Defendant No. 2, namely Crompton Greaves Ltd. and Defendant No. 5, namely, Bharti Cellular Limited. 29. Applications stand disposed of accordingly.
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2005 (8) TMI 714 - SUPREME COURT
Constitutional validity of amendments made to the Code of Civil Procedure 'the Code’ by Amendment Acts of 1999 and 2002 was rejected by this Court - draft rules for ADR and mediation as envisaged by Section 89 of the Code read with Order X Rule 1A, 1B and 1C - HELD THAT:- The Governments, Government departments or statutory authorities are defendants in large number of suits pending in various courts in the country. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer as well. Proper reply can result in reduction of litigation between State and the citizens. In case proper reply is sent either the claim in the notice may be admitted or area of controversy curtailed or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of Section 80.
These provisions cast an implied duty on all concerned governments and States and statutory authorities to send appropriate reply to such notices. Having regard to the existing state of affairs, we direct all concerned governments, Central or State or other authorities, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him.
The Committee has suggested that the Central Government has to provide substantial funds for establishing courts which are subordinate to the High Court and the Planning Commission and the Finance must make adequate provisions therefore, noticing that it has been so recommended by the Constitution Review Committee.
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 within four months.
Alternative Dispute Resolution and Mediation Rules - As can be seen from Section 89, its first part uses the word ’shall’ when it stipulates that the ’court shall formulate terms of settlement’. The use of the word ’may’ in later part of Section 89 only relates to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting Section 89 is that where it appears to the Court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if the parties do not agree, the court shall refer them to one or other of the said modes. Section 89 uses both the word ’shall’ and ’may’ whereas Order X, Rule 1A uses the word ’shall’ but on harmonious reading of these provisions it becomes clear that the use of the word ’may’ in Section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarized in the terms of settlement formulated or reformulated in terms of Section 89.
There is no impediment in the ADR rules being framed in relation to Civil Court as contemplated in Section 89 upto the stage of reference to ADR. The 1996 Act comes into play only after the stage of reference upto the award. Applying the same analogy, the Legal Services Authority Act, 1987 (for short ’1987 Act’) or the Rules framed thereunder by the State Governments cannot act as impediment in the High Court making rules under Part X of the Code covering the manner in which option to Lok Adalat can be made being one of the modes provided in Section 89. The 1987 Act also does not deal with the aspect of exercising option to one of four ADR methods mentioned in Section 89. Section 89 makes applicable 1996 Act and 1987 Act from the stage after exercise of options and making of reference.
When the parties come to a settlement upon a reference made by the Court for mediation, as suggested by the Committee that there has to be some public record of the manner in which the suit is disposed of and, therefore, the Court has to first record the settlement and pass a decree in terms thereof and if necessary proceed to execute it in accordance with law. It cannot be accepted that such a procedure would be unnecessary. If the settlement is not filed in the Court for the purpose of passing of a decree, there will be no public record of the settlement. It is, however, a different matter if the parties do not want the court to record a settlement and pass a decree and feel that the settlement can be implemented even without decree. In such eventuality, nothing prevents them in informing the Court that the suit may be dismissed as a dispute has been settled between the parties outside the Court.
Regarding refund of the court fee where the matter is settled by the reference to one of the modes provided in Section 89 of the Act, it is for the State Governments to amend the laws on the lines of amendment made in Central Court Fee Act by 1999 Amendment to the Code. The State Governments can consider making similar amendments in the State Court Fee legislations.
The draft rules have been finalised by the Committee. Prior to finalisation, the same were circulated to the High Courts, subordinate courts, the Bar Council of India, State Bar Councils and the Bar Associations, seeking their responses. Now, it is for the respective High Courts to take appropriate steps for making rules in exercise of rule making power subject to modifications, if any, which may be considered relevant.
We hope that the High Courts in the country would be in a position to examine the aforesaid rules expeditiously and would be able to finalise the Rules within a period of four months.
We place on record our deep appreciation for very useful assistance rendered by Senior Advocates Mr. K. Parasaran and Mr.Arun Mohan who on request from this court readily agreed to render assistance as Amicus Curie. We also record our appreciation for useful assistance rendered by Mr. Gulam Vahnavati, learned Solicitor General on behalf of Union of India and the Attorney General of India and Mr. T. L.V. Iyer, Senior Advocate on behalf of Bar Council of India.
In the result, We upheld the constitutional validity of the amendments made to the CPC by the Amendment Acts of 1999 and 2002
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2005 (8) TMI 713 - SC ORDER
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... ... ..... ggarwal (Adv.), Sonu Bhatnagar (Adv.), Amrita Bhinder (Adv.), Rajan Narain (Adv.) ORDER CA No. 4290/98 The appeal is dismissed. CA Nos. 6611-12/99 The appeals are dismissed but without any order as to costs.
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2005 (8) TMI 712 - CALCUTTA HIGH COURT
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... ... ..... e provisions of section 100 to 103 are made applicable to reduction of securities premium account, the securities premium account does not become share capital of the company. ( 33. ) In passing an order confirming reduction of securities premium account all that the Court is required to do is to satisfy itself that the dues of every creditor entitled to object are discharged or determined or secured. No other obligation is cast on the Court in view of the express provisions of section 102(1). This Court can at best impose terms and conditions for reduction which the Court does not deem necessary in the instant case. The reasons for the reduction and other material information with regard thereto have duly been disclosed. There is nothing on record to show that any prejudice has been caused to anybody by reason of the proposed reduction. ( 34. ) The application is, therefore, allowed. There will be an order in terms of Prayers (a) to (e) of the petition. Application allowed.
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2005 (8) TMI 711 - DELHI HIGH COURT
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... ... ..... available to the assessee, it claimed the benefit of deduction u/s 80 HHE on the ground that what is exported outside the country was customised electronic data within the contemplation of Explanation b) to Section 80 HHE (5) of the Act. The Tribunal has in the impugned order permitted the said deduction, the legal admissibility whereof is assailed by the Revenue in the present appeal. It is contended by the Revenue that what is produced and exporte by the petitioner is television news software and not customised electronic data. The only question that falls for our consideration in the above context and which we hereby formulate is as under - “Whether the ITAT was correct in law in holding that the television news software produced and exported by the respondent/assessee outside the country was customised electronic data eligible for deduction u/s 80 HHE of the Income Tax Act, 1961 ? 2. Paper books to be furnished within three months in terms of the High Court rules.
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2005 (8) TMI 710 - MADHYA PRADESH HIGH COURT
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... ... ..... ill get an opportunity to put forth their submission again before the Tribunal in appeal. 11. In view of aforesaid discussion, which alone is necessary for remanding the case to Tribunal, we allow the appeal, set aside the impugned order and remand the case to Tribunal for deciding the appeal afresh on merits. It is made clear that while deciding the appeal, the Tribunal will only take into consideration those statements of witnesses which were recorded by Assessing Officer second time and in presence of assessee. We also make it clear that since the issue involved in the appeal need to be decided on facts and hence, the Tribunal will decide the same strictly in accordance with law and uninfluenced by any of our observations made on merits. Let the appeal be decided by Tribunal within 6 months as an outer limit. Parties to appear before the Tribunal on 1-8-2005. Registry to send the record of the case to Tribunal if requisitioned for deciding this appeal forthwith. No costs.
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2005 (8) TMI 709 - SUPREME COURT
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.
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2005 (8) TMI 708 - SC ORDER
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... ... ..... in Nahar Industrial Enterprises Ltd. & Ors. v. Union of India & Ors. reported in 2004 (170) E.L.T. 518 (S.C.) 2004 (7) SCC 618. In terms of that judgment the appeal is disposed of.
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