AI Structured Summary
Not yet generated for this judgment
Judgment
Rajiv Narain Raina, J.—The present petition is directed against the order dated 9th December, 2013 passed by the learned Additional Civil Judge (Senior Division), Dadri whereby the defence of the petitioning Nigam has been struck off and the case posted for evidence of the plaintiff. The result whereof is that the Nigam is denied the right to file its written statement to contest the suit. When this matter came up for hearing on 24th March, 2014 it was not clear from the typed copy of the impugned order, the date when the second zimni order was passed falling between the dates 22nd July, 2013 and 09th December, 2013. This had led to an adjournment. Mr. Aman Chaudhary today explains that this was an accidental omission in printing the paperbook and in fact the date of the second order is 23rd October, 2013. He points out from the third zimni order dated 09th December, 2013 that the next date fixed by the trial court was 25th April, 2013 which mistake remains apparent on the order sheet. The year ought to be read as 2014.
Heard the learned counsel and perused the papers.
A cumulative reading of the three zimni orders makes it apparent that the trial Judge sitting in Senior Division has proceeded in a bit of a hurry which has resulted in incalculable adverse civil consequences to the Nigam facing a claim made in a suit for compensation of Rs. 15 lacs on account of death of a bread winner by electrocution. The Nigam put in appearance before the trial court for the first time on 22nd July, 2013 and took time to file a reply. A long date was given due to heavy pendency of old cases and the matter was fixed for 23rd October, 2013. On 23rd October, 2013 the written statement was not ready and a date was requested. The request was accepted but by giving last opportunity and in addition subjecting the Nigam to payment of Rs. 200/- as costs. The matter was adjourned to 9th December, 2013. On the next date though the cost was paid but the written statement was not filed and another adjournment was sought. The learned trial court proceeded to strike off the defence of the Nigam on its failure to file written statement after availing ''sufficient opportunities''.
In my considered view on 23rd October, 2013, which was the first effective date for the Nigam to have filed its reply, if the rigours of Order VIII Rule 1 were to be strictly applied, the trial court ought not to have rushed and given last opportunity and that too by clubbing it with costs of Rs. 200/-. Instead, it could have then imposed heavy costs and avoided penning last opportunity''. I have already explained in CR No. 1556 of 2014, Bharat Rajput vs. Amrik Singh Aulakh and others pronounced on 3rd March, 2014 what this court thinks when a court uses the words ''last opportunity'' on the order sheet. It was said:
There is nothing like ''last opportunity'' in the Code of Civil Procedure, 1908 or last opportunity given many times over or last final opportunity, ultimate opportunity and penultimate opportunity. This is endless compassion. Therefore, there is greater need for the trial judge to consciously and carefully weigh all attending circumstances in a given case to secure the ends of justice before the first such order is issued.
Therefore, the trial Judge in applying the last opportunity principle on the second date after appearance of the Nigam and to have embarked upon passing the impugned order was clearly in an exercise too early undertaken. Imposition of costs alone may have served the purpose on the second date. In case the Nigam still did not file its written statement on or before 9th December, 2013 costs could have been stepped up drastically and made punitive in nature. Since Order VIII Rule 1 limits written statements to be filed within thirty days from the date of service of summons, and for reasons recorded, then not later than ninety days from the date of service of summons, then it may seem a little harsh and unpragmatic to proceed to use the Brahmastra of Order VIII Rule 1 & 10 CPC and strike off the defence. Though the Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), has observed that even the first, second and third adjournment cannot be claimed as a matter of right but yet the interest of justice should not be compromised at any cost. While dealing with this provision in the light of the amendment brought in the Code, the Supreme Court in Salem while examining whether the provisions of Order VIII Rule 1 & 10 are mandatory or directory in nature laid down the following principles by observing:
The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice...In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word ''shall'', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to ''make such order in relation to the suit as it thinks fit''. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.
While dealing with such situations courts still have to temper requests for adjournments as one falling in the rules of procedure and therefore, begging the ''pause and think'' method and then choosing carefully the next judicial step to tread in the face of such a request and then to act pragmatically, practically and reasonably as the situation demands depending on many imponderable factors of which only the trial court is the best judge in the first instance, and the court may decide what to do on a case to case basis without there being any strait jacket formula of how discretion is to be exercised but by applying the golden test of avoiding manifest failure of justice. Opportunities for filing written statements in defence are valuable rights upon which issues are framed and trials proceed. They are normally impartible unless there is an admission of the claim. Non-filing of written statements within the time permitted by court is immediately open to pronouncement of judgment and decree under amended Order VIII Rule 10, but the consequences on failure to file written statement within the prescribed period have not been spelt in Order VIII Rule 1, rendering such a right merely directory. The words "defence is struck off" have not been used in Order VIII Rule 1 or its sub rule 10 and they are of court usage, when repeated time and again become part of the legal lexicon. Before such orders are issued, the trial court should introspect in the short time available on its heavy board, quickly think on there feet and try to prophesize what might the revising court think when called upon to examine such an interlocutory order. The trial court should realize that what may look like an innocuous interlocutory stage in a case may have terrible and far-reaching consequences adverse on a litigant open only to correction first by the High Court and then by the Supreme Court. The last two stages are fraught with oppressive dents on the pocket of a litigant, the opposite party drawn into further litigation only for a patent error committed by the trial judge. Therefore, there is greater need for inculcating a spirit of liberality through self-education in the law, poise, composure with no knee jerk reactions, all the time assimilating virtues of kindness, compassion, eagerness to learn from mistakes committed and with a spirit of enquiry to retread the path to justice. Greater still, empathy for the poor and the under-privileged sections of society before them oftentimes forced to seek recourse to legal remedies against right deprivation, looking to the court as a saviour, their mai bap. These attributes are heavily demanded from fledgling judges sitting in Junior Division, though the present order has been passed in Senior Division. If they follow these precepts it will help make them better judges in passing good orders thereby considerably reducing the burden on this court because justice was delivered at the door step of the trial court. They should harbour no apprehension of rebuff by this court when venturing to do justice according to their conscience, which if clear and their opinions honest they have nothing to fear. Justice comes absolutely free and ''without ration'' as Justice Learned Hand put it but must be dispensed early. Members of the Junior Division who occupy benches in the trial courts within our jurisdiction are assured that the High Court sits to help and guide them through their stormy journey in achieving judicial independence of thought and action till they graduate into Senior Division and till such time they do, there work is mostly pardonable unless tainted since they are still in the learning process. But they should not pass the buck on to this court at interlocutory stages of a suit by doing a thing for the wrong reason. They should be lion-hearted and give relief where due. But when they come to occupy Senior Division, frankly, I personally look at them differently on much higher standards while sitting in revisional jurisdiction against interlocutory orders. Interlocutory orders by their nature tend to have grave and serious repercussions, one of which is halting the trial itself. There are thousands of such cases pending in this court for long craving for decision with trials stayed, a sad testimony to suspect orders passed by trial courts during the interim stages of a suit. But leave aside all this, the cadre of Judicial Officers of all hues may like to read every morning before holding court to profit from the words of Justice Bronson in Pierce v. Delamater 1 NY 3 (1847) : A.M.Y. p.18: spoken a hundred years before India won its freedom: "A judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors".
I may not be taken to have delivered a lecture in a judgment. I never meant it. I mean only to inspire fellow judges sitting in the Junior and Senior Division. My anxiety, if I may say so, flows from first hand revisional work that has fallen to my share in the present roster where I feel that in a large number of cases coming up before me and those which are pending before the Junior and Senior Division, from which interlocutory orders arise, justice could have been easily handed down at the trial court level but for due application of mind and lack of judicial experience and foresight since they are inducted when young. But I trust they will shoulder well the responsibilities that lie ahead in the future as they go along gathering moss, enriching themselves with the rich deposit of the law. These are casualties of casualness, a passing phase, just like we have been through for three decades in the discipline of law. There are no short circuits in this dreary business.
To return to the mainstream discussion; in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, the Supreme Court speaking through Vivian Bose J, laid down dicta as a general principle for us to follow while it considered the issue in the background of the provisions of the unamended Code dealing with the trial of suits. The Court observed:
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 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 exceptions 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.
In this backdrop, I do not think that the impugned order of 9th December, 2013 deserves to be sustained and therefore the same calls for interference under Article 227 of the Constitution. I have no doubt that the order in its aftermath is much too harsh though it may not be legally unsound. But by this order the Nigam should learn a lesson to act promptly in filing written statements failing which the court would up the costs to punitive figures in such a case. This is a reminder call for the harshness that may ensue in appropriate cases so that time limits set in Order VIII Rule 1 CPC are not frustrated by malpractices adopted to buy time. That apart, frivolous litigation has become the bane and the fruit of seeking injustice against fellowmen. Bad legal advice tendered by half baked counsel is crippling the justice delivery system as witnessed in this jurisdiction. An ill-conceived case also demands a speaking order from this court and the precious time spent in making it, stressing the establishment of this court from start to finish. The only way out to saddle malafide, frivolous and vexatious litigation and ill-conceived petitions is with imposition of crippling costs. All said and done, means justify ends but ends would never justify means.
In view of the order proposed to be passed, I do not think it be necessary to issue notice to the opposite side only to hear them out since it would cause further delay and in case the written statement is allowed to be presented, no prejudice would be caused to the plaintiff and they can well be compensated with punitive costs for postponing judgment resulting from delay in filing the written statement, holding up the show.
Consequently, this petition is allowed and the order dated 9th December, 2013 is set aside. The petitioners are permitted to file written statement on the next date of hearing. It will be subject to payment of costs presently limited to Rs. 20,000/- payable to the plaintiffs since it is the first call on the Nigam. Costs be paid on the next date of hearing in cash against receipt in the direct hands of one of the plaintiffs duly identified in court by recording payment made on the order sheet. The petition stands disposed of with the above directions and the observations made.