Holding

Order VIII, Rule 1 is a procedural, directory provision and the court may accept a written statement filed beyond 90 days if it has granted the extension, as procedural law must be subservient to justice.

Summary

In a civil suit for partition, the defendants were required to file a written statement within 30 days, with a possible extension up to 90 days under Order VIII, Rule 1 of the CPC. The trial court, however, granted an extension till 19‑Feb‑2004, which fell beyond the 90‑day limit, and the defendants filed the statement on 20‑Feb‑2004 because the earlier date was a holiday. The trial court refused to accept the statement, and the High Court dismissed the writ petitions, holding that no extension beyond 90 days was permissible. On appeal, the Supreme Court held that Order VIII, Rule 1 is a procedural provision and not mandatory; the court retains a residuary power to accept a statement filed beyond the prescribed period when it has itself granted the extension, and a party should not suffer for a judicial mistake. Consequently, the High Court’s order was set aside and the appeals were allowed.

Issues considered

Whether Order VIII, Rule 1 of the CPC, as amended by the 1999 Amendment Act, is mandatory or directory with respect to the 90‑day ceiling for filing a written statement.
Whether a court can refuse to accept a written statement filed beyond 90 days when the court itself had granted an extension beyond that period.
Whether the doctrine of actus curiae neminem gravabit and the principle of lex non cogit ad impossibilia apply to prevent a party from being prejudiced by a procedural error of the court.

Legislation cited

Code of Civil Procedure, 1908s. Order VIII, Rule 1 (as amended by Civil Procedure Code (Amendment) Act, 1999), s. Section 122

Subjects

Procedural lawWritten statementCPC Order VIII Rule 1Extension of timeMandatory vs directory provisionJustice and equityActus curiae neminem gravabitLex non cogit ad impossibiliaEx debito justiciae

Judgment

SHAIKH SALIM HAJI ABDUL KHA YUMSAB A
v.
KUMAR AND ORS.

NOVEMBER 18, 2005

[ARIJIT PASAYA T AND R. V. RA VEENDRAN, JJ.] B

Code of Civil Procedure, 1908-0rder VIII Rule 1 (as amended by Civil
Procedure Code (Amendment) Act, I999)-Written statement-Filing of-
Extended time granted by Court beyond prescribed period-The extended C
date being holiday, written statement filed on the next day-Refusal by Court
to accept, the same being beyond 90 days-Writ Petition--High Court held
the Written Statement as unacceptable-On appeal, held: The Court could not
have refused to accept the written statement as it was within the time granted
by it-Party cannot suffer for the mistake of the Court-The provision being
procedural, the same should not be construed as mandatory-It is always D
subservient to and in aid to justice.

Interpretation of Statutes :

Procedural Law-Interpretation of-Held: Unless compelled by express
and specific language of the statute, procedural enactment ought not be E
construed in a manner which would leave the Court helpless to meet
extraordinary situations in tlze ends of justice-It should not ordinarily be
construed as mandatory-Merely because a provision is couched in a negative
language implying mandatory character, the same is not without exceptions-
Jt is subservient to and is in aid ofjustice-Any interpretation which eludes ' p
or frustrates· the recipient of justice is not to be followed

Maxims:

"actus curiae neminem gravabit" and "lex non cogit ad.
impossibilia"-Applicability of G
In a civil suit filed by respondent No.1-plaintiff, appellants-'
defendants were directed to file Written Statement. On their having not
filed the same within time, they sought extension of time to file the same.,
Time was allowed till 19.2.2004 which fell beyond 90 days. That date being
349
H
350 SUPREME COURT REPORTS [2005].SUPP. 5 S.C.R.

A a holiday, appellants filed the Written Statement the next day. Trial Court
refused to accept the same on the ground that the Written Statement was
filed beyond the period of 90 days. Appellants filed Writ Petition, which
was dismissed on the ground that there was no scope for granting extension
of time beyond the period of 90 days to file the Written Statement, in view
B of the amendment to CPC by Civil Procedure Code (Amendment) Act,
1999.

In appeal to this Court appellants contended that Court itself had
granted time to file Written Statement by 19.2.2004, and that date being
holiday, Written Statement having been filed the next day, the view taken
C by the courts below was untenable.

Allowing the appeal, the Court

HELD: 1.1. Order VIII Rule l CPC does not deal with the power of
the court and also does not specifically take away the power of the court
D to take the Written Statement on record though filed beyond the time as
provided for. Further, the nature of the provision contained in Order VIII,
Rule l is procedural. It is not a part of the substantive law. Substituted
Order VIII, Rule 1 by 1999 amendment intends to curb the mischief of
unscrupulous defendants adopting dilatory tactics, delaying the disposal
E of cases causing inconvenience to 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. While justice delayed may amount
to justice denied, justice hurried may in some cases amount to justice
buried. (355-C, D, E)
F
1.2. 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
G language of the Statute, the provisions of the 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.
(355-F, G)

1.3. The humanist rule that procedure should be the handmaid, not
H
the mistress, of legal justice compels consideration of vesting a residuary
SHAIKH SALIM HAJI ABDUL KHAYUMSAB v. KUMAR 351

power in Judges to act ex debito justiciae where the tragic sequel otherwise A
would be wholly inequitable. -Justice is the goal of jurisprudence -
processual, as much as substantive. (355-H; 356-A(
Sushi/ Kumar Sen v. State of Bihat, (1975( 1 SCC 774, referred to.

1.4. No person has a vested right in any course of procedure. He has B
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, (356-B]
Blyth v. Blyth (1966] 1 All E.R. 524 (HL), referred to.
c
1.5. 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. (356-C(
Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred D
to.
1.6. Though the power of the Court under the proviso appended to
Rule 1 of Order VIII 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 though they may be read by necessary E
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 provisio~
came to be enacted, hold the same to be directory though worded in the F
negative form. (356-E-F]

Kai/ash v. Nanhku (2005( 4 SCC 480 and Rani Kusum (Smt.) v.
Kanchan Devi (Smt.) and Ors., (2005] 6 SCC 705, relied on.

Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT
(2002) 9 SC 175 and Salem Advocate Bar Association, Tamil Nadu v. Union G
of India, JT (2005) 6 SC 486, referred to.

2.1. The trial court had grahted time up to 19.2.2004 which
undisputedly fell beyond the 90 days' period. Since 19.2.2004 happened
to be a holiday, the Written Statement was filed on the next day. Had th~
Written Statement been filed on 19.2.2004, obviously the court could not H
352 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.
j
A have refused to accept the Written Statement as it was within the time
granted by it. Merely because of a fortuitous circumstance the written
statement came to be filed next day i.e. on account of the date fixed being
a holiday that cannot make the Written Statement, filed, unacceptable.
(358-E, F)

B 2.2. A party cannot be made to suffer if the court has committed a
mistake if for the sake of argument it is held that the Court had mistakenly
granted time beyond 90 days. [358-G)

Kai/ash v. Nanhku, (2005) 4 SCC 480 and Rani Kusum (Smt.) v.
C Kanchan Devi (Smt.) and Ors., [2005] 6 SCC 705, relied on.

2.3. In the facts and circumstances of the case, the maxim of equity,
namely, actus curiae neminem gravabit - an act of court shall prejudice no
man, shall be applicable. This maxim is founded upon justice and good
sense which serves a safe and certain guide for the administration of law.
D The other maxim is; lex non cogit ad impossibilia - the law does not compel
a man to do what he cannot possibly perform. The law itself and its
administration is understood to disclaim as it does in its general aphorisms,
all intention of compelling impossibilities, and the administration of law
must adopt that general exception in the consideration of particular cases.
[358-H; 359-A]
E
Raj Kumar Dev v. Tarapada Dev, (1987) 4 SCC 398, Gursharan Singh
v. New Delhi Municipal Committee, (19961 2 SCC 459 and Mohammad Gazi
v. State of MP. and Ors., [2004) 4 SCC 342, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6907 of2005.
F
From the Judgment and Order dated 20.4.2004 of the Bombay High
Court in W.P. No. 2500 of 2004.

WITH

G C.A. No. 6918 of 2005.

Siddarth Luthra, Sher Singh, Pramod Dubey and Ms. Ruby Singh Ahuja
for the Appellant.

N.S. Gahlot, R.K. Singh, Jati.nder Kumar Bhatia, B.S. Jain, Ajay Veer
H Singh, Ms. Charuwali Khanna and Dr. (Mrs.) Vipin Gupta for the Respondents.
SHAIKH SALIM HAJI ABDUL KHA YUMSAB v. KUMAR [PASA YAT, J.] 353

The Judgment of the Court was delivered by A
ARIJIT PASAYAT, J. Leave granted.

Both the appeals involve identical issues except that appellant Shaikh
Salim Haji Abdul Khayumsab was respondent No. 15 in the suit and appellant
Kanti Lal was defendant No. I. B
Challenge in these appeals is to judgment rendered by a learned Single
judge of the Bombay High Court in WP Nos. 2500 and 2501of2004. The
writ PetitiOns filed by the present appellants were dismissed by learned single
judge holding that the trial court was right in its view that there was no scope
for granting extension of time beyond the period of90 days to file the written C
statement, in view of the amendment to the Gode of Civil Procedure, 1908
(in short the 'CPC') by Civil Procedure Code (Amendment) Act, 1999 (in
short the 1999 'Amendment Act'). Factual background needs to be noted in
brief.

In a suit for partition, separate possession and perpetual injunction the D
appellants were arrayed as defendant Nos. 15 & I. The suit filed by respondent
No. I was Special Civil Suit No. 144 of 2003 in the Court of Civil Judge
(Senior Division), Latoor. The appellants were summoned under Order V
Rule l & 5 CPC on 2 lst October, 2003. They sought time to file the Written
Statement and by order dated 29th October, 2003 the trial court granted time E
till 17. l l.2003. On the said date another application was filed for extension
of time to file the Written Statement. Time was allowed till 19.2.2004. As
19.2.2004 was a holiday the written statement was filed on 20.2.2004. Trial
court refused to accept the written statement on the ground that the written
statement was filed beyond the period of 90 days. The appellants filed writ F
petitions before the Bombay High Court, Aurangabad Bench which were
numbered as Writ Petition Nos.2500 and 250 l of 2004. By the impugned
order the High Court dismissed the Writ Petitions. The logic as appears from
...
the orders passed by the trial court and the High Court is that there was no
scope for granting time to file written statement beyond the prescribed period
of 90 days. G
Learned counsel for the appellants submitted that when the court itself
had granted time to file the written statement by 19.2.2004 and that being a
holiday the written statement was filed on 20.2.2004, the view taken that the
written statement could not have been filed within 90 days is clearly untenable.
H
354 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A Learned counsel appearing for the respondent supported the order passed
by the trial court and the High Court.

The CPC enacted in 1908 consolidated and amended the laws relating
to the procedure of the Courts of Civil Jl)dicature. It has undergone several
amendments by several Acts of Central and State Legislatures. Under Section
B 122 CPC the High Courts ~ave power to amend by rules, the procedure laid
down in the Orders. In exercise of these powers various amendments have
been made in the Orders by various High Courts. Amendments have also
been made keeping in view recommendations of Law Commission. Anxiety
of Parliament as evident from the amendments is to secure an early and
C expeditious disposal of civil suits and proceedings without sacrificing the
fairness of trial and the principles of natural justice in~built in any sustainable
procedure. The Statement of Objects and Reasons for enacting Code of Civil
Procedure (Amendment) Act, 1976 ( 104 of 1976) (in short '1976 Amendment
Act') highlights following basic considerations in enacting the amendments:-

D (i) with the accepted principles of natural justice that a litigant should
get a fair trial in accordance;
(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 .
E 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 1999 Amendment Act the text of Order VIII, Rule l was sought
to be substituted in a manner that the power of court to extend the time for
F 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. Due to resistance from the members of the Bar against enforcing
such and similar other provisions sought to be introduced by way ·of
amendment, the Amendment Act could not be promptly notified for
G enforcement. The text of the provision in the present form has been introduced
by the Amendment Act with effect from 1. 7.2002. The purpose of such like ·-
amendments is stated in the Statement of Objects and Reasons as "to reduce
delay in the disposal of civil cases".

The text of Order VIII, Rule I, as it stands now, reads as under: -
H
SHAIKH SALIMHAJI ABDUL KHAYUMSAB v. KUMAR[PASAYAT, J.] 355

"1. Written statement.- The defendant shall, within thirty days.from A
the date of service of summons on him, present a written statement
of his defence:
Provided that where the d.efendant 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 B
to be recorded in writing, but which shall not be later than ninety
days from the date of service of summons."

Order VIII, Rule l 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 C
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 VIII, Rule l is procedural. It is not a part
of the substantive law. Substituted Order VIII, Rule I intends to curb the D
mischief of unscrupulous defendants adopting dilatory tactics, delaying the
disposal of cases causing inconvenience to 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. While justice delayed may
amount to justice denied, justice hurried may in some cases amount to justice E
buried.

All the ,rules of procedure are the handmaid of justice. The language
employed by ~he draftsman of processual Jaw 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 F
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 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. G
The mortality of justice at the hands of law troubles a Judge's conscience
and points an angry interrogation at the Jaw reformer.

The processual Jaw so dominates in certain systems as to overpower
substantive rights and substantial justice. The humanist rule that procedure H
356 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A should be the handmaid, not the mistress, of legal justice compels consideration
of vesting a residuary power in judges to act ex debito justiciae where the
tragic sequel otherwise would be wholly inequitable. ~ Justice is the goal of
jurisprudence - processual, as much as sul?stantive. (See Sushi! Kumar Sen v.
State of Bihar, [1975] 1 SCC 774). !
I
B No person has a vested right in any course of pr9~edure. 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] l All E.R. 524 (HL ). A
C 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 Anr. v. Rajesh and Ors., AIR (1998) SC 1827)
{

Processual law is not to be a tyrant but a servant, not an obstruction but
D 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 l of Order VIII is circumscribed by the words -
"shall not be later than ninety days" but the consequences flowing from non-
E extension of time are not specifically provided 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

-
exc-eptions. The c9urts, when called upon to interpret the nature of the
provision, may, keeping in view the entire context in which the provision
F came to be enacted, hold the same to be directory though worded in the
negative form.

Challenge to the Constitutional validity of the Amendment Act and
1999 Amendment Act was rejected by this Court in Salem Advocate Bar
Association, Tamil Nadu v. Union of India, JT (2002) 9 SC 175. However to
G work out modalities in respect of certain provisions a Committee was
constituted. After receipt of Committee's report the matter was considered by
a three-Judge Bench in Salem Advocate Bar Association, Tamil Nadu v.
Union ofIndia, JT (2005) 6 SC 486. As regards Order VIII Rule l Coir.mittee's
report is as follows:

H "The question is whether the Court has any power or jurisdiction
SH~IKH SALIM HAJJ ABDUL KHAYUMSAB v. KUMAR[PASAYAT, J.]357

to extend the period beyond 90 days. The maximum period of 90 A
days to file written statement has been provided but tl)e consequences
on failure to file written statement within the said period have not
been provided for in Order VIII Rule 1. The point for consideration
is whether the provision providing for maximum period of ninety
days is mandatory and, therefore, the Court is altogether powerless to B
extend the time even in an exceptionally hard case.

It has been common practice for the parties to take long
adjournments for filing written statements. The legislature with a
view to curb this practice and to avoid unnecessary delay and
adjournments, has provided for the maximum period within which C
the written statement is required to be filed. The mandatory or directory
nature of Order VIII Rule 1 shall have to be determined by having
regard to the object sought to be achieved by the amendment. It is,
thus, necessary to find out the intention of the legislature. The
consequences which may follow and whether the same were intended
by the legislature have also to be kept in view. D
In Raza Buland Sugar Co. Ltd, Rampur v. The Municipal Board,
Rampur, AIR (1965) SC 895, a Constitution Bench of this Court held
that the question whether a particular provision is mandatory or
directory cannot be resolved by laying down any general rule and it
would depend upon the facts of each case and for that purpose the E
object of the statute in making out the provision is the determining
factor. The purpose for which the provision has been made and its
nature, the intention of the legislature in making the provision, the
serious general inconvenience or injustice to persons resulting from
whether the provision is read one way or the other, the relation of the F
particular provision to other provisions dealing with the same subject
and other considerations which may arise on the facts of a particular
case including the language of the provision, have all to be taken into
account in arriving at the conclusion whether a particular provision
is mandatory or directory.
G
In Sangram Singh v. Election Tribunal Kotah & Anr., AIR (1955)
SC 425, considering the provisions of the Code dealing with the trial
of the suits, it was opined that:

"Now a code of procedure must be regarded as such. It is procedure,
something designed to facilitate justice and further its ends: not a H
358 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

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.
B
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
c 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."
D
In Kai/ash v. Nanhku, (2005] 4 SCC 480 and Rani Kusum (Smt.) v.
Kanchan Devi (Smt.) and Ors., (2005] 6 SCC 705 similar view was expressed.

The matter can be looked at another angle. Undisputedly the trial court
had granted time up to 19.2.2004 which undisputedly fell beyond the 90
E days' period. Since the 19.2.2004 happened to be a holiday, the Written
Statement was filed on the next day. Had the Written Statement been filed
on 19.2.2004, obviously the court could not have refused to accept the written
statement as it was within the time granted by it. Merely because of a fortuitous
circumstance the written statement came to be filed next day i.e. on account
of the date fixed being a holiday that cannot make the Written Statement,
F filed, unacceptable.

Learned counsel for the respondent submitted that the Court could not
have granted time beyond 90 days. This plea is untenable in view of what has
been stated in Kai/ash's, case (supra) and Rani Kusum 's, case (supra).
Additionally a party cannot be made to suffer if the court has committed a
mistake if for the sake of argument it is held that the Court had mistakenly
granted time.

In the facts and circumstances of the case, the maxim of equity, namely,
actus curiae neminem gravabit an act of court shall prejudice no man, shall
H be applicable. This maxim is founded upon justice and good sense which
SHAIKH SALIM HAJI ABDUL KHA YUMSAB v. KUMAR [PASAYAT, J.] 359

serves a safe and certain guide for the administration of law. The other A
maxim is, lex non cogit ad impossibilia the law does not compel a man to
do what he cannot possibly perform. The law itself and its administration is
understood to disclaim as it does in its general aphorisms, all intention of
compelling impossibilities, and the administration of law must adopt that
general exception in the consideration of particular cases. The applicability B
of the aforesaid maxims has been approved by this Court in Raj Kumar Dey
v. Tarapada Dey, [1987] 4 SCC 398, Gursharan Singh v. New Delhi Municipal
Committee, [1996] 2 SCC 459 and Mohammod Gazi v. State of MP. and
Ors., [2000] 4 sec 342.

The High Court's orders are clearly indefensible and are set aside. The C
appeals are allowed but without any order as to costs.

'I K.K.T. Appeal allowed.