TMI Blog2005 (11) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... time beyond the period of 90 days to file the written statement, in view of the amendment to the Code of Civil Procedure, 1908 (in short the CPC ) by Civil Procedure Code (Amendment) Act, 1999 (in short the 1999 Amendment Act ). Factual background needs to be noted in brief. In a suit for partition, separate possession and perpetual injunction the appellants were arrayed as defendant Nos. 15 1. The suit filed by respondent No. 1 was Special Civil Suit No. 144 of 2003 in the Court of Civil Judge (Senior Division), Latoor. The appellants were summoned under Order V Rule 1 5 CPC on 21st October, 2003. They sought time to file the Written Statement and by order dated 29th October, 2003 the trial court granted time till 17.11.2003. On the said date another application was filed for extension of time to file the Written Statement. Time was allowed till 19.2.2004. As 19.2.2004 was a holiday the written statement was filed on 20.2.2004. Trial court refused to accept the written statement on the ground that the written statement was filed beyond the period of 90 days. The appellants filed writ petitions before the Bombay High Court, Aurangabad Bench which were numbered as Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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) 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. It 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 nonextension 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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