SAMBHAJI & ORS. versus GANGABAI & ORS.

Citation: [2008] 16 S.C.R. 469 · Decided: 20-11-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2008] 16 S.C.R. 469 
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SAMBHAJI & ORS. 
A 
v. 
GANGABAI &- ORS. 
(Civil Appeal No. 6731. of 2008) 
NOVEMBER 20, 2008 
B 
[DR.-ARIJIT PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
Code of Civil Procedure, 1908: 
G 
0.8 r.1, proviso - Written statement- Filing of, after the 
extended period of 90 days - Permissibility - Held: Order 8-
r. 1 does not specifically take away power of court to accept 
written statement beyond the time provided for - Nature of 
the provision contained therein is procedural, hence should 
D 
not ordinarily be construed as mandatory - Merely, because 
a provision of law is couched in a negative language implying 
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mandatory character, the same is not without exceptions -
On facts, grounds indicated by the defendants for seeking 
acceptance of the written statement filed belatedly, not without 
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substance -
Where close relatives are litigants, liberal 
approach be adopted - Interpretation of statutes - Procedural 
law. 
0. 8 r. 1, proviso - Object of - Held: Is to expedite hearing 
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and not scuttle the same. 
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In a suit, the defendants-appellants did not file written 
statement within the period of 90 days. The Trial Court 
passed an order directing that no written statement was 
to be accepted. The defendants-appellants filed an 
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application along with written- statement with two 
prayers; first prayer was to set aside the earlier order 
relating to non-filing of the written statement and second 
to accept the written statement along with the 
469 
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470 
SUPREME COURT REPORTS 
[2008) 16 S.C.R. 
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A application. The Trial Court held that in terms of the 
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amended Order VIII Rule 1 CPC, there was .no scope for 
accepting a written statement filed beyond the fixed 
period of 90 days. The appellants filed writ petition before 
the High Court. High Court held that though the view of 
B the Trial Court that it had no power to acceptthe written 
statement. filed, after 90 days was not correct in the 
circumstances of the case, no .case for interference was 
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made out. Hence the instant appeal. 
c 
Allowing the appeal, the Court 
HELD: 1. Order 8 Rule 1 CPC after the 1999 
ame!'ldment, 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 
D 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 v 
,, 
on record though filed beyond the time as provided for. 
)--
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Further, the nature of the provision contained in Order 8 
E 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, 
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delaying the disposal of cases, causing inconvenience 
to the plaintiffs and the petitioners approaching the court 
F for quick relief and also the serious inconvenience of the 
court faced with frequent prayers for a~journments. The 
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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 
G justice. buried. [Para 8] [475-F-H; 476-A] 
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2.1. All t_he rules of prpcedure are the handmaids of 
r
justice. The language employed by the draftsman of 
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processual law may be liberal or stringent, but the fact 
remains that the object of prescribing procedure is to 
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SAMBHAJI & ORS. v. GANGABAI & ORS. 
471 
advance the cause of justice. In an adversarial system, 
A 
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 
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manner which would leave the court helpless to meet 
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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. [Paras 9 and 10] (476-8-E] 
c 
2.2. The processual law dominates in certain systems 
so as to overpower substantive rights and substantial 
justice. The humanist rule that procedure should be the 
handmaid, not the mistress, of legal justice compels 
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consideration of vesting a residuary power in Judges to 
act ex debito justitiae where the tragic sequel otherw

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