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Andhra High Court · body

2012 DIGILAW 162 (AP)

P. Hajiram Bi v. M. Ismail Khan

2012-02-13

C.V.NAGARJUNA REDDY

body2012
Judgment : This Civil Revision Petition arises out of order, dated 01.12.2011, in I.A.No.122 of 2011 in O.S.No.58 of 2005 on the file of the learned IV Additional District Judge, Tirupati. The petitioners are plaintiffs in the above-mentioned suit filed for partition of the suit schedule properties. When the case was coming up for cross-examination of P.W-1, the respondents, who are defendant Nos.1 to 5 and 9 to 12, filed I.A.No.122 of 2011 for amendment of the written statement. This application was opposed by the petitioners mainly on the grounds that it was too belated and that, the respondents failed to show due diligence in raising the pleadings which are now sought to be raised by way of amendment. The lower Court having considered the rival pleadings, allowed the application by permitting the respondents to amend the written statement. At the hearing, Sri K.Maheswar Rao, learned counsel for the petitioners, strenuously argued that the lower Court has committed a serious error in allowing the respondents’ application for amendment of the written statement at a far too belated stage when the case was coming up for cross-examination of P.W.-1. He has further argued that the respondents failed to show due diligence and therefore, the lower Court ought not to have allowed the application of the respondents for amendment of the written statement. Sri S.V.Muni Reddy, learned counsel representing Sri B.Sudhakar, learned counsel for the respondents, opposed the above submissions of the learned counsel for the petitioners. I have carefully considered the submissions of the learned counsel for the parties. The power of the Court to permit pleadings subsequent to the written statement of the defendant is envisaged by Rule 9 of Order VIII of the Code of Civil Procedure (for short ‘C.P.C’). The said provision ordains that no pleading subsequent to the written statement of a defendant other than by way of a defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit. This provision further provides that the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than 30 days for presenting the same. This provision further provides that the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than 30 days for presenting the same. This provision, thus, vests discretion in the Court to allow subsequent pleadings in respect of the written statement and also empowers the Court to require filing of a written statement or additional written statement by any of the parties within a time limit of 30 days. Order VI C.P.C., deals with pleadings generally. Rule 1 of Order VI C.P.C., defined pleadings as plaint or written statement. Rule 17 of Order VI C.P.C., relates to the amendment of pleadings. The proviso to Rule 17 of Order VI C.P.C., prescribes that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. As noted above, while Order VI C.P.C., relates to the pleadings in general, Order VIII C.P.C., exclusively deals with the written statement. The same rigor of standard that is prescribed in Rule 17 of Order VI C.P.C., is not prescribed in Rule 9 of Order VIII C.P.C. The present case, whereby the respondents wanted to add further pleadings to the written statement, squarely falls under Rule 9 of Order VIII C.P.C. The discretion of the Court to allow subsequent pleadings under Rule 9 of Order VIII C.P.C., is perhaps wider than the discretion given to it by Rule 17 of Order VI C.P.C. While in both the events, the parties have to necessarily show diligence, in cases, falling under Rule 9 of Order VIII C.P.C., the Court can show more latitude towards the party in allowing subsequent pleadings by the defendants. The obvious reason for this appears to be that by the change of plaint by the plaintiff at a belated stage, the proceedings instituted by him may take to a totally different course, while such a possibility may not arise in the case of written statement. That appears to be the reason why the Court is vested with wider discretion in case of amendment of pleadings in respect of the written statement by the defendants. That appears to be the reason why the Court is vested with wider discretion in case of amendment of pleadings in respect of the written statement by the defendants. The Supreme Court in R.N.Jadi & Brothers and others V. Subhashchandra (2007) 6 SCC 420 while dealing with Order VII Rule 1 which casts obligation on the defendant to file written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days held as under: - “Order 8 Rule 1 after the amendment 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 provision 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. Further, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Substituted Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and the 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. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. The processual law so 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 judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar [ (1975) 1 SCC 774 ]). No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, 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 AC 643]). 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 v. Rajesh [ (1998) 4 SCC 543 ]. 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 8 is circumscribed by the words ‘shall not be later than ninety days’ but the consequences flowing from non-extension of time are not specifically provided for 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. 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.” In the light of the legal position as above, if the impugned order of the lower Court is examined, I do not find any reason to interfere with the same. The lower Court after considering the effect of the proposed amendment has found that the proposed amendment is nothing, but, a further clarification about partition pleaded in the original written statement, and that, the items of the suit schedule property relating to each of the defendants are shown in detail in the schedule. Therefore, I am of the opinion that the lower Court has not committed any error in allowing the application for amendment of the written statement. For the above-mentioned reasons, the Civil Revision Petition is dismissed. As a sequel to dismissal of the Civil Revision Petition, C.R.P.M.P.No.619 of 2012 filed by the petitioners for interim relief is dismissed as infructuous.