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2009 DIGILAW 533 (JK)

Mohd. Sultan v. Oswal Woolen Mills Ltd.

2009-11-05

MUZAFFAR HUSSAIN ATTAR

body2009
1. This Civil First Appeal is directed against the judgment and decree of learned District Judge, Srinagar dated 12th Oct. 2000, whereby and where-under the suit of the appellants has been dismissed. (Hereinafter appellants will be referred to as plaintiffs and respondents as defendants.) 2. The facts which gave rise to the filing of the suit are briefly summarized as under: 3. The plaintiffs instituted civil original suit for recovery of damages and compensation to the tune of Rs.15/- lacs with interest at 18% w.e.f August 1994 till its realization. The plaint pleadings reveal that defendants approached the plaintiffs and requested them to supply teasels which material was required by defendants for manufacturing of woolen items. The plaintiffs in pursuance of the contract arrived at between the parties, motivated number of farmers to grow teasels in their agricultural farms. It is due to the efforts of the plaintiffs that production of teasels was started by number of farmers in the valley in the year 1988. First order was placed by defendants for supply of teasels in August 1989 and plaintiffs were asked to supply teasels of 2 inch to 4 inch @ 0.47 paisa per piece. The business activities between parties continued with increase and decrease of price of the teasels. The last supply order was issued by the defendants on 4th April 1994. The said supply order is signed by both the parties. Vide said order the defendants requested the plaintiffs to supply teasels for the year 1994-95 of size 2 inch to 4 inch and quantity required was 10 to 15 lacs. Price was fixed at 0.60 paisa per piece (F.O.R) Srinagar. It was also agreed upon that delivery is to be made before 1st of May 2004. The said document has been placed in original on the suit file. The plaintiffs in pursuance of the said document purchased teasels from the growers and thereafter dispatched one truck load of teasels to defendants through Super Golden Transport Corporation under G.R. No.49430. The material was loaded in truck No. JK02B 4255 and the amount of Rs.6480/- was paid by plaintiffs to the said company. 4. Para 6 of the plaint reveals, defendants refused to take the delivery of goods which were dispatched on 13.08.94. The material was loaded in truck No. JK02B 4255 and the amount of Rs.6480/- was paid by plaintiffs to the said company. 4. Para 6 of the plaint reveals, defendants refused to take the delivery of goods which were dispatched on 13.08.94. The plaintiffs on receiving the message of refusal to take the delivery of the goods contacted defendant No.2 on telephone and requested him to take delivery, which he refused to. The defendant No.2 asked the plaintiffs to slash down the rates. It is in this backdrop the plaintiffs approached defendants and on their refusal to accept delivery instituted civil original suit at Ludhiana against defendants praying therein for issuance of decree of permanent injunction to restrain the defendants from committing any breach of contract as also decree for mandatory injunction to direct the defendants to receive the delivery of teasels as per agreement dated 4th April 1994, with further direction to defendants to take delivery of each installments in terms of the agreement dated 4th April 1994. The defendants filed the written statement on 1st of Oct. 1994 before the Court at Ludhiana, wherein it was stated that the supply order dated 4th April 1994 has been cancelled. The plaintiffs have specifically pleaded that they had never received any such cancellation order nor same was communicated to them. The plaintiffs have given details as to how they have suffered loss as teasels got damaged. The plaintiffs at para 9 of the plaint have stated that the contract between the parties was concluded and neither of the parties could back out from the same. It has been further pleaded that the performance of the contract has become impossible because of non acceptance by defendants of delivery of teasels, which suffered damages and put the plaintiffs to huge loss. Details whereof have been given in the plaint itself. The Honble court at Ludhiana had observed that plaintiffs can claim damages from defendants instead of filing suit for issuance of decree of injunction as pleaded at para 10 of the plaint. The plaintiffs have stated that cause of action has accrued to them at Srinagar where from the goods were dispatched through transport company and the cause of action accrued on 13th August 1994 when goods were dispatched as also on 20th August 1994 when defendants were contacted on phone. 5. The plaintiffs have stated that cause of action has accrued to them at Srinagar where from the goods were dispatched through transport company and the cause of action accrued on 13th August 1994 when goods were dispatched as also on 20th August 1994 when defendants were contacted on phone. 5. The defendants were put on notice in the suit who filed written statements. The defendants have accepted the aforesaid order No. OMW/194 dated 4th April 1994 having been issued by them. But the stand taken in the preliminary objections of the written statement is that the said order was cancelled by defendants by virtue of letter dated 27th June 1994 duly communicated to the plaintiffs by registered post and the representative of the plaintiffs was informed about the same on telephone as well. It has been further pleaded that plaintiffs filed a suit in the Court of Ld. Additional senior Sub Judge Ludhiana and an application for issuance of ad interim injunction was also filed. The application for interim injunction was heard and dismissed by the court on 05th Oct. 1994 and the plaintiffs sought withdrawal of the suit and the ld. Additional Sr. Sub Judge Ludhiana ordered dismissal of the suit as withdrawn vide its order dated 21st of August 1995. The defendants further pleaded in the written statement that as no permission for institution of fresh suit was sought from the court at Ludhiana the present suit is not maintainable under O 23 of CPC and is liable to be dismissed on this ground alone. It was further pleaded that suit filed by the plaintiffs is barred under O 2, R 2 of CPC as the claim made by the plaintiffs was also available to them when they filed earlier suit at Ludhiana which has been dismissed on 21st of August 1995. It is further pleaded that cause of action, if any, has arisen to the plaintiffs upon the cancellation of the supply order, suit is time barred having been filed more than three years after the cancellation of supply order was issued on 27the June 1994. The defendants have given details as to how and in which circumstances on the facts of the case the suit of the plaintiffs deserves to be dismissed. 6. The trial court, on the basis of the preliminary objections raised framed three preliminary issues which are reproduced as under: 1. The defendants have given details as to how and in which circumstances on the facts of the case the suit of the plaintiffs deserves to be dismissed. 6. The trial court, on the basis of the preliminary objections raised framed three preliminary issues which are reproduced as under: 1. "Whether this court has no jurisdiction to try the suit. ? OPD 2. Whether the suit is liable to be dismissed under order 23 Rule 4 and O2, R2 of CPC. ? OPD. 3. Whether the suit is liable to be dismissed as time barred. ? OPD." 7. On hearing the ld counsel for the parties, the ld. Trial Judge decided preliminary issues in favour of the defendants and against the plaintiffs and accordingly dismissed the suit vide judgment dated 12th Oct. 2000. Decree sheet was accordingly framed. 8. Heard learned counsel for parties. Considered the matter. 9. The ld counsel for appellants Mr. G.A. Lone, submitted that the issues have been decided wrongly by the ld. trial Judge. It was further submitted that the provisions of law have been wrongly applied to the facts of the case. The learned counsel in support of his contentions has referred to and relied upon cases titled A.B.C Laminart Pvt. Ltd. v. A.P Agencies, Salem, reported in AIR 1989 SC 1239, State of Maharashtra and anr, appellant v. M/s National Construction Company, Bombay and anr, respondents reported in AIR 1996 SC 2367, and Devaram and anr, appellants v. Ishwarchand and anr, respondents reported in AIR 1996 SC 378. The ld counsel submitted that in view of the factual position obtaining in the case and in view of the law laid down by the Honble Supreme Court the judgment and decree deserves to be set aside. 10. Mr. M.A. Qayoom learned counsel for the respondents, while supporting the judgment and decree of the trial court submitted that the judgment and decree is valid in law and in view of the reasoning given by ld. trial Judge the same is in accordance with law and need not to be interfered with. The ld. 10. Mr. M.A. Qayoom learned counsel for the respondents, while supporting the judgment and decree of the trial court submitted that the judgment and decree is valid in law and in view of the reasoning given by ld. trial Judge the same is in accordance with law and need not to be interfered with. The ld. Counsel in support of his contention has cited law laid down by the Honble Supreme Court in cases titled Hakam Singh, Appellant v. M/s Gammon (India) Ltd. Respondent, reported in AIR 1971 SC 740; A.B.C Laminart Pvt. Ltd and anr, Appellant v. A.P. Agencies, Salem, Respondent AIR 1989 SC 1239 and M/s Republic Medico Surgical Company, Banglore, Appellant v. Union of India and anr, Respondent AIR 1980 Karnatka 168. The ld counsel for the respondents has also referred to the explanation appended to Order 2 Rule 2 (3) CPC. The ld counsel submitted that since the appellants omitted/abandoned the claim of seeking damages in the earlier suit filed at Ludhiana, the suit instituted at Srinagar was thus not competent in law. The ld counsel has further submitted that the Court at Srinagar had no jurisdiction to try and hear the same and referred to explanation appended to Section 20 of the CPC to convey that corporation shall be deemed to carry on business at his sole principal office in the state or, in respect of any cause of action arisen at any place where it has also a subordinate office at such place. 11. Issue No.1 relates to jurisdiction of the court at Srinagar. The ld. trial Judge after referring to the arguments of the ld counsel for parties has rendered a finding that there is nothing on record to show that defendants have either main office or branch office or any retail out let at Srinagar. The ld trial Judge on appreciation of pleading assumed that the delivery of goods at Srinagar has not been received on behalf of respondents by the transport company on 13th August 1994 being not agent or authority to receive goods on their behalf so no cause of action has accrued within the territorial jurisdiction of court at Srinagar. The ld trial Judge on appreciation of pleading assumed that the delivery of goods at Srinagar has not been received on behalf of respondents by the transport company on 13th August 1994 being not agent or authority to receive goods on their behalf so no cause of action has accrued within the territorial jurisdiction of court at Srinagar. For disposal of the issue of jurisdiction it becomes necessary to reproduce the Section 20 of CPC, as under: "Other suits to be instated where defendants reside or cause of action arises Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- (a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) Any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) The cause of action, wholly or in part, arises." 12. Clause (c) of section 20 provides that suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. The maintainability of the suit at Srinagar is to be now considered in view of the mandate of Section 20 CPC. The appellants as already referred to hereinabove, has pleaded in the suit that business transactions had commenced between appellants and respondents for supply of teasels way back in the year 1988. The offer would be made to the appellants by the defendants from Ludhiana for supply of teasels which offer would be accepted at Srinagar. It is pleaded at para 4 of the plaint that the respondents in the year 1994 asked the appellants to supply 10 to 15 lacs of teasels at the rate of 60 paisa. It is in pursuance to the said agreement that the first installment of supply was loaded and dispatched from Srinagar on 13th August 1994. It is pleaded at para 4 of the plaint that the respondents in the year 1994 asked the appellants to supply 10 to 15 lacs of teasels at the rate of 60 paisa. It is in pursuance to the said agreement that the first installment of supply was loaded and dispatched from Srinagar on 13th August 1994. At para 6 of the plaint it is pleaded that when the dispatched material reached Ludhiana, defendants refused to take the delivery of the goods and when defendant No.2 was contacted on telephone and requested to take the delivery, he refused to do the same unless rates fixed are slashed down. The claim of the respondents that the supply order was cancelled, but receipt whereof and information thereof is specifically denied by the appellants in the plaint. It is pleaded at para 6 that the appellants learnt about the cancellation of the supply order when respondents filed written statement on 1st Oct. 1994 in the suit filed by appellants at Ludhiana. Clause (c) of Section 20 provides that suit can be competently instituted in a court within the local limits of whose jurisdiction, cause of action wholly or in part, arises. In this case admittedly the goods were dispatched from Srinagar. In an action for damages and for seeking compensation for breach of contract cause of action also arises at the place wherefrom goods are dispatched. In a suit for damages for breach of contract, cause of action arises in many ways. The performance of the contract constitutes part of cause of action and a suit in respect of breach of a contract can also be instituted at a place where the contract was to be performed or its performance is completed. 13. In the case in hand, performance of the contract was complete when in pursuance to the supply order the goods to be supplied were dispatched from Srinagar. To support the contention para 15 of the judgment of Honble Supreme Court in case A.B.C. Laminart Pvt. Limited v. A.P. Agencies, Salem, is reproduced as under:- "In the matter of a contract there may arise causes of action of various kinds. To support the contention para 15 of the judgment of Honble Supreme Court in case A.B.C. Laminart Pvt. Limited v. A.P. Agencies, Salem, is reproduced as under:- "In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors." 14. The ld. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors." 14. The ld. counsel for the respondents has referred to the case of Hakam Singh, Appellant vs. M/s Gammon (India) Ltd. Respondents reported in AIR 1971 SC 740 to indicate that the word "corporation" appearing in Section 20 does not include only statutory corporation but also company registered under Companies Act. This judgment is referred to indicate that the respondents being a registered company is covered by the explanation appended to section 20 so in terms of clause (a) & (b) of Section 20 the suit could not be instituted at Srinagar. The ld. counsel also relied upon case A.B.C Laminart to support his contention that suit is not maintainable at Srinagar. Ld counsel further referred to case titled M/s Republic Medico Surgical Company, Banglore (supra) to indicate that no cause of action having arisen within the territorial jurisdiction of the court at Srinagar, the suit was not competent. The judgment in A.B.C laminart Pvt. Ltd. relied upon by ld. counsel support the case of the appellants than that of respondents. The judgment in M/s Republic Medico Surgical company is not of any assistance to the respondents as the question of dispatch of goods from a particular place was neither raised nor considered in that judgment. In the said judgment the Honble Judge has placed reliance on Bhagwandas v. Girdharlal and Co. reported in (AIR 1966 SC 543), in which the acceptance of offer on telephone at Ahmadabad was held to be place where the contract was made and it was held that civil court at Ahmadabad had jurisdiction to try the suit for issuance of decree of damages as cause of institution of suit had accrued to the plaintiffs because of breach of contract. The cause of action for claiming damages and compensation for committing the breach of contract in this case has arisen partly on account of dispatch of goods from Srinagar. 15. The ld. trial judge has not while deciding the preliminary issue No.1 considered the effect of clause (c) of Section 20 and has thus, clearly fallen in error in deciding the issue. 15. The ld. trial judge has not while deciding the preliminary issue No.1 considered the effect of clause (c) of Section 20 and has thus, clearly fallen in error in deciding the issue. In view of the discussions made hereinabove the finding returned on preliminary issue No.1 by the ld. trial judge is set aside. It is held that the ld. District Judge Srinagar has territorial jurisdiction to entertain and decide the suit. Preliminary issue No.1 is accordingly decided in favour of the appellants and against the respondents. 16. Issue No. 2 is based on the principle of law under-lined in Order 2 Rule 2 CPC and Order 23. The ld. trial Judge while deciding the preliminary issue in favour of the respondents and against the appellants has stated that the suit for mandatory injunction having been instituted by the appellants in the court of Sub Judge at Ludhiana and same having been withdrawn without seeking permission for filing fresh suit, is not thus maintainable. Ld. trial Judge has recorded finding that in the instant suit the cause of action appears to be different but has further proceeded to say that alone is not sufficient to allow the suit to proceed as in the wisdom of the ld. trial judge all the reliefs were available to the plaintiffs at the time of institution of the suit at Ludhiana on 29th Sept. 1994 and reliefs having not been incorporated in the plaint instituted at Ludhiana, the suit is not maintainable in view of the mandate of Order 2 Rule 2 of CPC. It is further stated by ld. trial judge while deciding the preliminary issue No.2 that the appellants have tried to carve out claim in the present suit by asserting that they had no knowledge of cancellation of the supply order dated 27th June 1994 when the suit at Ludhiana was instituted on 29th Sept. 1994 and because of this reason the ld. trial judge held that the plaintiffs are not entitled to seek reliefs of damages by instituting the suit at Srinagar. It is further stated by the ld. trial judge that the respondents have produced the postal receipts to establish that the order of cancellation of the supply order was sent to appellants vide communication dated 29.06.94 and as the appellants have not refuted the same but filed a suit at Ludhiana on 29.09.94. Ld. It is further stated by the ld. trial judge that the respondents have produced the postal receipts to establish that the order of cancellation of the supply order was sent to appellants vide communication dated 29.06.94 and as the appellants have not refuted the same but filed a suit at Ludhiana on 29.09.94. Ld. trial judge has relied upon the copy of postal receipts and copy of communication dated 27.06.94, to hold that the information of the cancellation of supply order being with appellants, they should have thus made all the claims and sought all the reliefs available to them in the first suit and it is for these reasons the preliminary issue No.2 was decided in favour of the respondents and against the appellants. 17. In order to appreciate the reasoning of the ld trial Judge in deciding the preliminary issue No.2 it becomes imperative to refer to order 2 rule 2 and order 23 which are reproduced as under: - Order 2 Rule 2 1. " Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. 2. Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. 3. Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Order 23 Withdrawal of suit or abandonment of part of claim 1. At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit of abandon a part of his claim:- Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (3) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is in his opinion, for the benefit of the minor or such other person. (4) Where the Court is satisfied,- (a) That a suit must fail by reason of some formal defect, or (b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim; It may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim." Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiffs are entitled to make in respect of the cause of action. It is to be ascertained as to whether cause of action for institution of the suit for injunction and suit for damages is one and the same. The appellants on the facts of the case as referred to in this judgment was constrained to institute the suit for permanent prohibiting injunction and mandatory injunction at Ludhiana in terms of the plaint, as the respondents did not receive the delivery of the goods and respondent No.2 asked for reducing the rates of teasels which were already fixed. Refusal to receive the delivery of goods provided the cause of action which is traceable to non-acceptance of demand by the appellants to reduce the rates of the teasels. The cause of action which had accrued to the appellants was not to seek damages but to enforce receipt of goods which they had dispatched from Srinagar. The plaint further reveals that at the time of institution of the suit at Ludhiana the plaintiffs were not in know of the factum of cancellation of the supply order. The only cause of action on the facts available in the suit instituted at Ludhiana was to enforce receipt of goods. The plaint further reveals that at the time of institution of the suit at Ludhiana the plaintiffs were not in know of the factum of cancellation of the supply order. The only cause of action on the facts available in the suit instituted at Ludhiana was to enforce receipt of goods. The ld Judge at Ludhiana while rejecting temporary injunction application of the appellants has also observed that suit for damages is competent, in view of the stand taken by the respondents in their written statement and no interim relief can be granted. The cause of action for institution of the suit for damages and compensation accrued to the plaintiffs as per the plaint pleadings after the suit at Ludhiana was instituted. The ld. trial judge could not come to the conclusion in view of the pleadings of the parties that the cause of action for claiming damages was available to the appellants at the time of institution of suit at Ludhiana. Even, otherwise, also the cause of action for institution of earlier suit is quite distinct from the cause of action on which the suit for damages and compensation has been instituted. The cause of action for institution of the suit for compensation and damages accrued to the plaintiffs when they suffered loss because of the damage caused to the teasels. At the time the institution of first suit at Ludhiana no damage was caused to the teasels so no cause of action had accrued to the appellants at that point of time. If appellants would have conceded to the demand of the respondents to reduce the rates as is pleaded in the plaint, the respondents would have in such eventuality accepted the goods, and thus, cause of institution of the present suit would never arise. The cause for institution of present suit has arisen in the factual ground of damage having been caused to teasels on account of which loss was suffered by the appellants. The cause of action having arisen subsequent to the institution of the first suit as discussed above could not have been available at that point of time as such the suit would not be hit by Order 2 Rule 2 which, otherwise would result in its dismissal. The cause of action having arisen subsequent to the institution of the first suit as discussed above could not have been available at that point of time as such the suit would not be hit by Order 2 Rule 2 which, otherwise would result in its dismissal. The argument of ld counsel that explanation appended to Order 2 Rule 2 comes in the way of institution of the suit on the plain phraseology of the explanation is not attracted. The ld. trial judge himself has admitted that in the instant suit cause of action appears to be different. After recording such a finding the ld. trial judge could not answer the preliminary issue No.2 in favour of respondents and against the appellants. The Honble Supreme court in case State of Maharashtra and anr, Appellants v. M/s National Construction Company, Bombay and anr. Respodnents reported in (AIR 1996 S.C 2367 (1) and in case titled Devaram appellant v. Ishwarchand and anr reported in AIR 1996 SC 378, on which reliance has been placed by Mr. G. A. Lone, supports reasoning given hereinabove for holding that the cause of action being different in the two suits, the bar as contained in O2, R2 of CPC would not be attracted to the facts of this case. The ld. trial judge has further held that the claim for damages having not been incorporated in the suit filed at Ludhiana the present suit has to collapse in view of the bar contained in Order 23 Rule 2 of CPC. No reasoning in support of the view has been recorded by the ld. trial judge. The bar as contained in O 23, of CPC is negatived in view of the discussions made hereinabove. The cause of action for claim of damages having not arisen at the time of institution of suit at Ludhiana which suit definitely was filed on a different and distinct cause of action, the bar as contained in O 23 is not applicable to this case. The decision on preliminary issue No.2 is thus rendered illegal and is accordingly set-aside. In view of the discussions the preliminary issue No.2 is decided in favour of the appellants and against the respondents. 20. In respect of Issue No.3, the ld. The decision on preliminary issue No.2 is thus rendered illegal and is accordingly set-aside. In view of the discussions the preliminary issue No.2 is decided in favour of the appellants and against the respondents. 20. In respect of Issue No.3, the ld. trial judge has recorded a finding that the cause of action if taken to be 14th August 1994 as pleaded in the plaint then the suit for damages was to be filed within three years viz up to 15th August 1997. The ld. trial judge after recording above said finding, observed that the suit has been instituted on first of Sept. 1997 and on this assumption has held suit to be time barred. Ld. counsel for the appellants in order to show that suit is within time referred to the date of institution of the suit as recorded on the plaint itself. The suit has been presented before the court on 13th August 1997 thus, is filed within time. The finding recorded by trial court on preliminary issue no.3 is also rendered bad in law and is set aside. The preliminary issue No.3 is decided in favour of the appellants and against the respondents. In view of the findings recorded hereinabove the impugned decree and judgment is set-aside the suit of the appellant is held to be maintainable. 21. The ld. trial Judge is requested to proceed with the case with promptitude. It is painful that the suit has been instituted way back in the year 1997 and got halted in its tracks in 2000 when the impugned judgment and decree were passed. This court taking notice of slow pace of disposal of cases has observed in case titled Mushtaq Ahmad Dhar and anr vs. Dr. Nazir Ahmed and ors decided on 01.12.08, as under: "M.R. Cohen" in his book titled "Reason and Laws" has said and I quote "Law is not a homeless wondering ghost, it is a phase of life located in time and space". People enter into precincts of Courts with the benign hope of getting the disputes settled. In order to settle and resolve the disputes the legislature have devised procedure for the courts to arrive at just and lawful conclusions in most fair and reasonable manner. The solemn purpose of enacting procedural laws are to administer justice to the parties in an effective and just manner. In order to settle and resolve the disputes the legislature have devised procedure for the courts to arrive at just and lawful conclusions in most fair and reasonable manner. The solemn purpose of enacting procedural laws are to administer justice to the parties in an effective and just manner. In practice however unfortunately in most of the cases the procedural laws are being utilized not for resolving the disputes but for prolonging the mental agonies of the litigating party. The procedural laws are meant for advancing the cause of justice and not to defeat the same. A sacred duty is cast on the Courts to ensure that no litigating party is permitted to use the procedural or substantive laws to defeat the legal rights of other parties. Like all other democratic Institutions the Institution of Judiciary also survives on the faith of the people. This faith in the Institution of Judiciary survives on the bed-rock of settled principles that justice should be administered in accordance with laws and further that the justice should reach to every nook and corner where there is injustice, and the litigations should end within reasonable time. There can be variety of reasons for delayed disposal of cases but effort of the courts has to allow the litigating parties to leave the precincts of the courts within reasonable time. This duty of the court is not only sacrosanct but is central in the system of administration of justice." Appeal is allowed with no order as to costs. Record be send back immediately.