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Himachal Pradesh High Court · body

2015 DIGILAW 889 (HP)

Eih Associated Hotels Ltd. v. Neema Bakshi

2015-07-14

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Section 24(5) of the H.P. Urban Rent Control Act (for short the 'Act') is directed against the order passed by the learned Rent Controller No. 7, Shimla, on 22.12.2014 whereby the application moved by the petitioner-landlord under Order 7 Rule 14(3) read with Section 151 C.P.C., was ordered to be dismissed. 2. It is not in dispute that it is for the fifth time that an application under Order 7 Rule 14(3) C.P.C. has been moved and the earlier applications filed by the petitioner stand duly allowed. 3. The learned Rent Controller dismissed the application on the ground that no plausible reason had been shown by the petitioner as to why he could not produce the documents earlier, particularly, when the case was pending trial for the last nine years. 4. Mr. R.L. Sood, Senior Advocate, assisted by Shri Arjun Lall, Advocate, for the petitioner has vehemently argued that the documents sought to be placed on record were official letters, the authenticity, veracity and correctness whereof could not be questioned as these could not be manufactured, procured or even be fabricated. It is further argued that it is only on account of mistaken impression of the petitioner that the same were already on record that the said documents could not be filed. Lastly, it is contended that the rules of procedure are handmaid of justice and are intended to sub-serve and facilitate the cause of justice and not to govern or obstruct it. Reliance has been placed upon the judgment delivered by this Court in CMPMO No. 14 of 2015, decided on 19.06.2015, in case titled Neelam Kumari versus Yogender Singh and others. 5. On the other hand, Shri Chander Paul Sood, learned counsel for the respondent has vehemently argued that there is no reason forthcoming as to why over a period of nine years, the petitioner did not choose to place on record the documents, as have now been sought to be placed on record. He further argued that the petitioner cannot take advantage of its own wrong in firstly sleeping over the matter and thereafter questioning the legality and propriety of the impugned order. I have heard the learned counsel for the parties and have gone through the records of the case. 6. He further argued that the petitioner cannot take advantage of its own wrong in firstly sleeping over the matter and thereafter questioning the legality and propriety of the impugned order. I have heard the learned counsel for the parties and have gone through the records of the case. 6. It is not in dispute that the application filed by the petitioner has been rejected solely on the ground of delay and it is further also not in dispute that the matter is pending before the Rent Controller for the last nine years at the initial stage as the petitioner is yet to lead its evidence. 7. This Court in CMPMO No. 14 of 2015, decided on 19.06.2015, in case titled Neelam Kumari versus Yogender Singh and others, dealt with somewhat a similar issue wherein the applications moved by the petitioner therein for leading additional evidence and examining one of the parties in evidence was rejected only on the ground of delay and this Court held as under: "7. It cannot be disputed that there has been inordinate delay on the part of the petitioner in filing the aforesaid applications. But can the rights of the petitioner be defeated only on account of there being delay in filing of the applications? 8. The proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ex debito justitiae, where otherwise it would be wholly inequitable, is by now well founded. 9. It must be remembered that the Courts are respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so and further taking into consideration the fact that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done. 10. 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. 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 the C.P.C. 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. 11. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. 12. 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. 13. It is useful to quote the oft-quoted passage of Lord Penzance in 1879 (4) AC 504: "Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve." 14. In the matter of Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 , the Hon'ble Apex Court has observed as under: "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. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 , the Hon'ble Apex Court has observed as under: "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 a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provide always that justice is done to both sides) less 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 grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course there must be expectations and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle." 15. 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 (1) All E.R. 524 (HL). 16. In Balwant Singh Bhagwan Singh and Another Vs. Raj Singh Baldev Kishen, AIR 1969 P&H 197 it was held that: "Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner, which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner, which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness." 17. In the matter of The State of Gujarat Vs. Ramprakash P. Puri and Others, (1969) 3 SCC 156 , the Hon'ble Apex Court has held that: "Procedure has been described to be a hand-maid and not a mistress of law, intended to sub-serve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause." 18. 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 Vs. State of Bihar, (1975) 1 SCC 774 . 19. 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 Another Vs. Rajesh and Others, (1998) 4 SCC 543 20. The Hon'ble Supreme Court in R.N. Jadi and Brothers and Others Vs. Subhashchandra, (2007) 6 SCC 420 considered the procedural law vis--vis substantive law and observed as under: "9. 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. 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 C.P.C. 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." 21. Procedure is only handmaid of Justice:- All the rules of procedure are the handmaids of justice. Any interpretation which eludes substantive justice is not to be followed. Observing that procedure law is not to be a tyrant, but a servant, in Sambhaji and Others Vs. Gangabai and Others, (2008) 17 SCC 117 , the Hon'ble Supreme Court held as under: "6.(14) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice." 22. In Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and Others, AIR 2011 SC 1137 , the issue before the Hon'ble Supreme Court was as to whether an application will be maintainable before the trial Court to withdraw the application filed earlier for withdrawal of the suit. The trial Court dismissed the application as not maintainable. The High Court held that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without there being any order on the withdrawal application and as such another application at a later point of time to withdraw the suit was not maintainable. When the matter was taken up in appeal, the Hon'ble Supreme Court disagreed with the views expressed by the High Court. While allowing the appeal, the Hon'ble Supreme Court observed thus: "5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted." 23. The Hon'ble Supreme Court in Mahadev Govind Gharge and Others Vs. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted." 23. The Hon'ble Supreme Court in Mahadev Govind Gharge and Others Vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, AIR 2011 SC 2439 , reiterated the legal position regarding procedural law and observed: "28. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold..." 24. In view of the aforesaid exposition of law, it can safely be concluded that the learned trial Court erred in dismissing the applications solely on the ground of delay without taking into consideration the humanist rule that procedure should be the handmaid, not the mistress of legal justice and it always vested with the residuary power to act ex debito justitiae where otherwise it would be wholly inequitable. Apart from that, learned trial Court has completely misconstrued the provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act." 8. Bearing in mind the aforesaid exposition of law, it can safely be concluded that though the delay in filing of the impugned application could be one reason, but not the sole reason for dismissing the same. 9. That apart, a perusal of the reply filed by the respondent would reveal that the respondent has nowhere alleged that any prejudice much less serious prejudice has been caused to him and the same has only been opposed on the ground of delay. 10. This Court in Braham Dass Vs. Onkar Chand and Another, (2009) 1 ShimLC 339 has held that there was no specific bar to produce documents even at the stage of final hearing with the leave of the Court and until and unless a serious prejudice is caused to the other side, same must be permitted to be produced. It is apt to reproduce paras 8 and 9 which reads as under: "8. It is apt to reproduce paras 8 and 9 which reads as under: "8. The documents are ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint, however, the documents can be produced subsequently with the leave of the Court. Whether the documents are relevant or not could not be decided at the stage of considering the application under order 7 Rule 14(3) of the Code of Civil Procedure and this question was to be determined at the stage of arguments. The learned trial Court has also misconstrued the judgment rendered by the Hon'ble Supreme Court cited in the order. There is no specific bar to produce the documents at the stage of hearing with the leave of the Court. The Court endeavor must be to adjudicate the lis effectively and if certain documents could not be filed with the plaint until and unless serious prejudice is caused to the other side, the same must be permitted to be produced on record. The other party also gets an opportunity to rebut the evidence produced by the parties during the hearing. The Court has to exercise the jurisdiction for the production of the documents liberally. 9. It is settled principle that opportunity should be afforded to the parties to produce their evidence and state their case before the Court. The Court has to exercise the jurisdiction in favour of the production of the evidence instead of scuttling it. The Courts should not permit the parties to indulge in dilatory tactics to stall the proceedings. The Court has discretion and generally speaking it will be wise exercise of the discretion to permit the production of the evidence and the question is to be decided in each case in the light of the particular circumstances." 11. Every trial is a voyage of discovery in which truth is the quest. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Every trial is a voyage of discovery in which truth is the quest. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Though, undoubtedly, there has been a long delay in filing of the application, however, taking into consideration the peculiar facts and circumstances of the case, more particularly, the fact that the trial is yet to commence and the proceedings are pending for more than a decade, I am of the considered opinion that the impugned order must be set aside. However, at the same time, this Court cannot also ignore the fact that because of the delay on the part of the petitioner, the respondent has unnecessarily been dragged into the present litigation not only before the learned Rent Controller, but even before this Court and, therefore, has to be adequately compensated for the same. 12. Accordingly, the present petition is allowed and the order passed by the learned Rent Controller No. (7), Shimla, on 22.12.2014 is set aside but subject to costs of Rs. 50,000/- which shall be paid to the opposite party on or before the next date of hearing. The parties/their counsel(s) are directed to appear before the learned Rent Controller No. (7), Shimla on 20th July, 2015. The Registry is directed to remit the records to the trial Court forthwith so as to reach there well before the date fixed. The interim order dated 23.04.2015 is vacated. Pending application, if any, also stands disposed of. 13. However, before parting it may be observed that since the case is pending adjudication for more than a decade, it is expected that the learned Rent Controller shall dispose of the same as expeditiously as possible and in no event later than 30th June, 2016.