- (1.) The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer" as held in case of Sushil Kumar Sen v. State of Bihar, 1975 1 SCC 774 is the expression fervently used to interpret the processual law dominating certain systems as to overpower substantive rights and substantive justice. The unscrupulous defendant used to adopt the tools of law to prolong the litigation with an avowed object to delay the disposal of the suits which assumes an importance in bringing the amendments in the Code of Civil Procedure. Order 8 Rule 1 as it stood prior to the amendments having brought in the year 1999 and 2002 was one of such weapon in the hands of the defendant to postpone the filing of the written statement and the Courts were helping and aiding such recalcitrant defendant in granting the adjournment mechanically as when ask for. The rightful claim was delayed because of the frequent adjournments granted to the defendant for filing the written statement even after service of summons. The Parliament showed their anxiety in delayed disposal of the suits instituted before the Courts and invited the Law Commission to explore the mechanism to secure the speedy and early disposal of the civil suits.
(2.) On the recommendation of the Law Commission, Order 8 Rule 1 of the Code was substituted by the new provision which was couched in such manner which does not permit the Court to extend the time beyond 30 days from the date of service of summons on the defendant. Because of the stiff resistance from every corner, the said provision was revisited and came to be substituted by introducing the Code of Civil Procedure (Amendment) Act, 2002, and the provision as it stood now is reproduced below: "R.1 Written Statement. - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant 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 to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."
(3.) What can be culled out from the aforesaid provision is narrated in Paragraph 27 of the Supreme Court in case of Kailash v. Nanhku & Ors, 2005 4 SCC 480 in these words: "27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it 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. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of 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. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried." There is another line of thoughts supporting the view that the processual law may contain liberal or stringent provision but the advancement of justice is the primary object and the rules of procedures are handmaid of justice and the procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet the extraordinary situations in the ends of Justice. As held in State of Punjab and another v. Shamlal Murari & another, 1976 1 SCC 719 " Processual law is not to be a tyrant but a servant not an obstruction but an aid to justice. Processual prescriptions are the handmaid and not the mistress, a lubricant not a resistant in the administration of justice." Though the language implied in Order 8 Rule 1 of the Code, is in negative form which ordinarily makes the rule mandatory but in Kailash , the three Judges Bench held the said provision to be mandatory as in an exceptional circumstances, the Court's power to enlarge a time beyond the prescribed period cannot be taken away. In 1955, the Supreme Court in case of Sangram Singh v. Election Tribunal, Kotah, 1955 AIR(SC) 425 laid down the principles for interpreting any provision of the Code of Civil Procedure as; "(i) 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 (provided always that justice is done to "both" sides) lest the very means designed for the furtherance of justice be used to frustrate it. (ii) 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. (iii) No forms or procedure should ever be permitted to exclude the presentation of the litigant's defence unless there be an express provision to the contrary.";