iqjksfgr] lnL;-&;g fuxjkuh /kkjk 230 jktLFkku dkdkjh vf/kfu;e] 1955 ¼al{ksi esa ^vf/kfu;e 1955*½ ds vUrxZr mi[k.M vf/kdkjh] dksVdkfle ftyk vyoj ds vknsk fnukad 31-8-2006 ds fo:) izLrqr dh xbZ gSA 2- izdj.k ds rF; la{ksi esa bl izdkj gS fd orZeku izkFkhZ }kjk fopkj.k U;k;ky; ds le{k [kkrsnkjh dh ?kks"k.kk ,oa LFkkbZ fu"ks/kkKk dk nkok oknxzLrvkjkth ds ckcr~ isk fd;k x;k ftlesa izfroknh dh vksj ls izLrqr tokcnkos dks jsdkMZ ij fy;s tkus dks pqukSrh nsrs gq, izkFkhZ dh vksj ls ,d lh-ih-lh- ds vknsk 8 fu;e 1 ds rgr izLrqrj dj fuosnu fd;k x;k fd le;kof/k esa tokcnkok isk ugha fd;k x;k Fkk vkSj tokcnkok le;kof/k ds ckn isk fd;k x;k gS blfy;s mä tokcnkos dks i<+k ugha tkosA bl izkFkZuk i= ij fopkj.k U;k;ky; us lquokbZ dj izkFkhZ ds mä izkFkZuk i= dks vius vknsk fnukad 31-8-2006 }kjk fujLr dj fn;k ftlds ftlds fo:) ;g fuxjkuh izLrqr dh xbZ gSA 3- izkFkhZ ds fo}ku vfHkHkk"kd dk rdZ gS fd izLrqr okn esa fopkj.k U;k;ky; dks le;kof/k ds ckn izLrqr fd;s x;s tokcnkos dks jsdkMZ ij ysus dk dksbZ vf/kdkj ugha ugha Fkk blfy;s muds izkFkZuk i= dks fujLr djus esa fopkj.k U;k;ky; o dkuwuh =qfV dh gSA 4- vizkFkhZ ds fo}ku vfHkHkk"kd us fopkj.k U;k;ky; }kjk ikfjr vknsk dk leFkZu djrs gq, rdZ izLrqr fd;k gS fd izkFkhZ }kjk izLrqr lh-ih-lh- ds vknsk 8 fu;e 1 ds rgr izLrqr fd;s x;s izkFkZuk i= dks izLrqr djus ls iwoZ gh fopkj.k U;k;ky; }kjk mudk tokcnkok jsdkMZ ij ys fy;k x;k Fkk blfy;s izkFkZuk i= dks fujLr djus esa dksbZ =qfV ugha dh xbZ gSA 5- geusa nksuksa i{kdkjksa ds fo}ku vfHkHkk"kdksa ds rdZ lqus rFkk i=koyh dk voyksdu fd;k ,oa lh-ih-lh- ds vknsk 8 fu;e 1 ds izHkko ij fopkj fd;kA ekuuh; loksZPp U;k;ky; }kjk ¼2005½ 4 lqizhe dksVZ dslst ist 480 ij ^^dSykk cuke ukudw o vU;** ds izdj.k esa lh-ih-lh- ds vknsk 8 fu;e 1 ds izHkko ij xaHkhjrkiwoZd fopkj fd;k x;k rFkk tks fl)kUr izfrikfnr fd;s x;s gS] os bl izdkj gS %& "Election — Election Trial — Procedure — Written statement — Power of Court to permit extension of time for filing of (beyond the time fixed there for under Or. 8 R. 1 C.P.C. and the proviso thereto, as amended by Act 22 of 2002 (w.e.f. 1.7.2002) — Held, S. 86(6) of RPA, 1951 empowers High Court to grant a reasonable time for filing of written statement, though for reasons to be recorded — So also Rr. 5 and 12 of the (Allahabad) High Court Rules vest the same discretion in the High Court — In fact, under said Rule 5, this power include the power to fix an extended date not merely once but again depending on the discretion of the High Court — Further held, this discretion, under the Act or the High Court Rules is not controlled by Or. 8 R 1 C.P.C. and the proviso thereto, as amended — On facts, High Court felt satisfied that reason assigned by defendant-appellant for delay in filing written statement was good and valid — However, High Court denied prayer fox extension of time as it felt it had not the power to do so (considering itself bound by mandate of Or. 8 R. 1 C.P.C. and the proviso thereto, as amended) — In light of ruling above, written statement already having been filed in High Court, direction issued for its being taken on board, subject to payment of Rs. 5000 as costs to election petitioner — High Courts — Allahabad High Court Rules of Court, 1952 — Rr. 5 and 12 — Representation of the People Act, 1951 — Ss. 86, 87 and Part VI (Ss. 79 to 122)". (Paras 13, 17, 22 46(i) and 47) 6- ekuuh; loksZPp U;k;ky; ds mijksä fu.kZ; esa lh-ih-lh- ds vknsk 8 fu;e 1 ds ^^eS.MsVªh** vFkok ^^Mk;jsDVªh** gksus ds ckcr~ Hkh xaHkhjrkiwoZd fopkj fd;k x;k rFkk fuEu izdkj O;oLFkk nh xbZ gS %& "Civil Procedure code, 1908 — Or. 8 R. 1 and proviso thereto [as amended by Act 22 of 2002 (w.e.f. - 1.7.2002)] — Nature and effect of Held, are directory in character and not mandatory — Further held, though they cast an obligation on defendant to file a written statement within the time prescribed therein, the provisions do not deal with nor specifically take away the power of the Court to take a written statement on record, though filed beyond the time as provided for written — However stressed, fact that Or. 8 R. 1 and proviso thereto, as amended, have been held to be directory may not be understood as nullifying the entire force and impact, the entire life and vigour, of the provision in its amended form - Clarified categorically that ordinarily the time schedule contained in the provisions is to be followed as a rule and departure therefrom would be by way of exception only — Guidelines for exercise of discretion by Court in this regard elucidated in detail." "Civil Procedure Code, 1908 — Or. 8 R. 1 and proviso thereto [as amended by Act 22 of 2002 (w.e.f. 1.7.2002)] and Or. 17 R. 1 — Discretion of Court under, to take written statement on record though filed beyond time prescribed therein — Guidelines for exercise of, stated — Held, the asking, and especially when period of 90 days has expired — Delaying tactics of defendants, especially in election petitions deprecated — In light of such delaying tactics, Court must handle prayers for adjournment with firmness — Extension of time beyond the limits laid down in Or. 8 r. 1 and proviso thereto, as amended, could only be by way of exception and for reasons assigned by defendant and also recorded in writing by Court tom its satisfaction, howsoever brief they might be — Court concerned had to spell out the departure from time schedule prescribed in Or. 8 R. 1 and proviso thereto, as amended, was being allowed because circumstances were exceptional, occasioned by reasons beyond control of defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if time were extended — Emphasised, that in no case was defendant to be permitted to seek extension of time when the Court was satisfied that it was a case of laxity or gross negligence on the part of defendant or his counsel — Further, prayer seeking time beyond 90 days for filing written statement had to be made in writing, and Court could put defendants on terms, including imposition of costs and could insist on documentary evidence being annexed to application seeking extension of time so as to convince Court that the prayer was founded on grounds that existed." "Civil Procedure Code, 1908 — s. 35 and Or. 8 R. 1 and proviso thereto [as amended by Act 22 of 2002 (w.e.f. 1.7.2002)] — Imposition of costs of condition precedent for permitting departure from time schedule laid down under Or. 8 R. 1 and proviso thereto, as amended — Held, said costs could be imposed for (i) deterring defendants, and (ii) for compensating plaintiffs for delay and inconvenience caused to them." "Civil Procedure Code, 1908 — s. 35 and Or. 8 R. 1 and proviso thereto [as amended by Act 22 of 2002 (w.e.f. 1.7.2002)] — Written statement "required" by Court — Filing of, beyond time fixed in Or. 8 R. 1 and proviso Or. 8 R. 9, in spite of said time-limit having expired, Court is not powerless to permit written statement being filed if Court requires such written statement." "Civil Procedure Code, 1908 — s. 35 and Or. 8 R. 1 and proviso thereto [as amended by Act 22 of 2002 (w.e.f. 1.7.2002)] — Written statement not filed within time period prescribed by Or. 8 R. 1 and proviso thereto, as amended, or as fixed in Or. 8 R. 9 — Options before Court — Held, in such case Court need not necessarily pronounce judgment, but may make such other order in relation to suit as it thinks fit." "Interpretation of Statutes — Particular statutes or provisions Procedural law/procedure — Held, unless compelled by express and specific language of the statute, provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless in meeting extraordinary situations for ends of justice — Civil Procedure Code, 1908 — Interpretation of." Alternatively, Order 8 Rule 1 C.P.C., mandatory or directory? : "This leads us to examine the alternative contention of the learned Senior Counsel for the appellant that, in any event, Order 8 rule 1 C.P.C. 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." "C.P.C. which consolidated and amended the laws relating to the procedure of the Courts of Civil Judicature in the year 1908, has in 1908, has in the recent times undergone several amendments based on he recommendations of the Law Commission displaying the anxiety of Parliament to secure an early and expeditious disposal of civil and proceedings but inbuilt in any sustainable procedure. The statement of Objects and Reasons for enacting the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1975) records the following basic considerations which persuaded Parliament in enacting the amendments : "5(i) that a litigant should get a fair trial in accordance with he accepted principles of natural justice; (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." "By the Code of Civil Procedure (Amendment) Act, 1999 (45 of 1999) the text of Order 8 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. As is well known, there was stiff resistance from he members of the Bar against enforcing such and similar other provisions sought to be introduced by way of amendment and hence the Amendment Act could not be promptly notified for enforcement. The text of the provision in the present form has been introduced by the Code of Civil Procedure (Amendment) Act 2002 (22 of 2002) with effect from 1-7-2002. The text of the provision in the present form has been introduced by the Code of Civil Procedure (Amendment) Act 2002 (22 of 2002) with effect from 1-7-2002. The purpose of such like amendment stated in the Statement of Objects and Reasons is "to reduce delay in the disposal of civil cases." "The text Order 8 Rule ~IS 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 statements 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." " Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that is 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 provisions 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. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 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 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 procedural 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 ought not to meet constructed in a manner which would leave the Court, helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen vs. State of Bihar are pertinent : (SCC p.777, paras 5-6)" "The mortality of justice at the hands of law troubles a Judges conscience and points an angry interrogation at the law reformer. The procedural law of 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 Judge to act ex debito justitia where the tragic sequel otherwise would be wholly inequitable ..... Justice is the goal of jurisprudence - procedural, as much as substantive." "In State of Punjab vs. Shamlal Murari" the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p.720) "Procedural law is not to be a tyrant but a servant, not an objection but an aid to justice. Procedural prescriptions are the handmade and not the mistress, a lubricant, not a resistant in the administration of justice." In Ghanshyam Dass vs. Dominion of India the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to sub serve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. "It is also to be noted that though the power of the Court under the proviso appended to Rule 1 Order 8 is circumscribed by the words "shall not be later than nienty days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read in 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." "Justice G.P. Sigh notes in his celebrated work Principles of Statutory Interpretation (9th Edn. 2004) while dealing with mandatory and directory provisions: "The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory of directory. In an oft-quoted determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get the real intention of the legislature by carefully attending to the whole scope of the statute to be considered." "For ascertaining the real intention of the legislature, points out Subbarao, J. the Court may consider inter alia. the nature and design of statute, and the consequences which would follow from construing it the one way or the, the impact 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 non-compliance with the provisions. the fact that the non-compliance with the provisions is or is not vested by some penalty; the serious or the travel consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered. the fact that the non-compliance with the provisions is or is not vested by some penalty; the serious or the travel 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 is mandatory serious general inconvenience will be created to innocent persons without very mush furthering the object of enactment, the same will be construed as directory." (pp. 339-40). "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 vs. Corpn. Bank a pari materia provision contained in Section 13 of the Consumer Protection Act, 1986 came up for the consideration of the Court. The provision required the opposite party to complaint to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by District Forum. The Court took into consideration the Statement of Objects and Reasons and the legislative intent behind providing a timeframe to file reply and held: (i) that the provision as framed was not mandatory in nature as no penal consequences are prescribed if the extended time exceeds 15 days, and; (ii) that the provision was directory in nature and could not be interpreted to mean that in no event whatsoever the reply of the respondent could be taken on record beyond the period of 45 days." "Ordinary, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps fro drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more sp, when the period of 90 days has expired. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more sp, when the period of 90 days has expired. The extension can be only way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended." "A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an 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." " We sum up and briefly state our conclusions as under : (i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continue till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time(as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition, affording opportunity to the defendant to file a written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for. (ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rightly and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. (iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the rules framed there under by Article framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in CPC on the other hand, the former shall prevail over the latter. (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative from, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to beheld filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away. (v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which perused 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 there from 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 the asking, more so when the period of 90 days has expired. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for the 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 is needed to be given for 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." 7- ekuuh; loksZPp U;k;ky; ds mijksä fu.kZ; esa nh xbZ O;oLFkk ds vuqlkj lh-ih-lh- ds vksnk 8 fu;e 1 ds izko/kku ^^eS.MsVªh** u gksdj ^^Mk;jsDVªh** ekus x;s gS ysfdu lkFk gh ;g O;oLFkk Hkh nh xbZ gS fd U;k;ky; dks tokcnkok isk djus ds lkFk le; c<+kus ds ekeys esa mlds mfpr dkj.k cryk;s tkus pkfg;sA fofup; 2006 vkj-ch-ts- ¼13½ jktLFkku ist 140 esa tks O;oLFkk nh xbZ gS] og bl izdkj gS % "Code of Civil Procedure, 1908 — Order 8 Rule 1, 9 and Section 148 — Provisions are directory — Court can extend time to file written statement — A close look at the entire scheme of amendment of C.P.C. demonstrates that while amending Order 8, Rule 1 stipulating the period for filing the written statement, the Legislature did not think it fit to amend correspondingly the provisions contained in latter part of Order 8, Rule 9, where the Court has been empowered to call upon the defendant to file written statement at anytime. It is thus evident that after the expiry of stipulated period provided in Order 8, Rule1, the Court still has the power to call upon the defendant to file written statement. It is thus evident that after the expiry of stipulated period provided in Order 8, Rule1, the Court still has the power to call upon the defendant to file written statement. Since the provisions of Order 8, Rule 1 are directory, time to file written statement can be extended under Section 148 C.P.C. Writ Petition allowed." 8- fof/k ds izko/kkuksa ,oa mä uthjksa ds eísutj izLrqr izdj.k ds rF;ksa ij fopkj fd;k x;ka fopkj.k U;k;ky; dh i=koyh ds layXu vkWMZjkhV ds voyksdu ls ;g Li"V gS fd fopkj.k U;k;ky; }kjk fnukad 9-3-2006 dh vkWMZjkhV esa fnukad 13-4-2006 rd dk le; ;k;ky; us tokcnkok isk djus ds fy;s c<+k;k rFkk fnukad 13-4-2006 dks izfroknh }kjk tokcnkok isk dj fn;k x;kA bl izdkj izfroknh }kjk tks tokcnkok isk fd;k x;k og fopkj.k U;k;ky; ds iwoZ ds vknskksa ds vuq:i gh isk fd;k x;k gS tks oknh }kjk izLrqr vknsk 8 fu;e 1 lh-ih-lh- ds izkFkZuk i= ds rgr ugha i<+s tkus dk vuqjks/k drbZ mfpr izrhr ugha gksrk gS rFkk fopkj.k U;k;ky; us iwoZ esa gh izLrqr dj fn;s x;s okn esa tokcnkos dks iwoZ esa gh jsdkMZ ij ys fy;k tkuk crykrs gq, oknh ds bl izkFkZuk i= dks fujLr djus esa =qfV ugha dh gSA 9- mijksä foospu ds QyLo:i ;g fuxjkuh fujLr dh tkrh gS ,oa fopkj.k U;k;ky; }kjk ikfjr vknsk fnukad 31-8-2006 dks ;Fkkor~ j[krs gq, vknsk fn;s tkrs gS fd os okn esa fu;ekuqlkj vkxkeh dk;Zokgh djsaA fu.kZ; [kqys U;k;ky; esa lquk;k x;kA