VIDYAWATI GUPTA AND ORS. versus BHAKTI HARI NAY AK AND ORS.

Citation: [2006] 2 S.C.R. 9 · Decided: 03-02-2006 · Supreme Court of India · Bench: B.P. SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

I 
--,-
VIDYAWATI GUPTA AND ORS. 
A 
v . 
.. 
BHAKTI HARi NAY AK AND ORS. 
FEBRUARY 3, 2006 
[B.P. SINGH AND AL TAMAS KABIR, JJ.] 
B 
-~f 
Code of Civil Procedure, 1908 (as amended by Amending Act 46 of 
1999)-Sections 26 and 129-0rder JV; Rule I-Order VI; Rule 15(4); Order 
VII-Calcutta High Court Original Side Rules-Chapter Vil; Rule I-Suit c 
instituted without filing an affidavit as required under the amended provisions 
of the Code-Omission remedied by filing affidavit subsequently-High Court 
holding that the suit is deemed to have been properly instituted only ·with 
effect from the date of filing of the affidavit and not from the date of initial 
institution of the suit-Correctness of -Held, amendments in the Code were 
brought in to eliminate procedural delays-The requirements of the Code are D 
directory in nature and hence any omission to comply will not render the suit 
non-est under the Code and under the Original Side Rules of the High Court-
Rectification of the omission will have effect from the date of original institution 
of the suit and not from the date of rectification of omission. 
Appellants, claiming to be owners of suit premises, filed a civil suit before E 
High Court against respondents in respec~ of their right, title and interest in 
it The appellants also filed an interlocutory application for interim injunction 
to direct the respondents to restore the condition of a part of the appellant's 
suit premises as was existing on the date of institution of the suit A Single 
Judge of the High Court allowed the application. The High Court also 
restrained the respondents from interfering in any manner with the F 
appellant's interest in the suit premises, including the properties which were 
directed to be restored, till the disposal of the suit. 
The respondents preferred an appeal before Division Bench of the High 
Court and raised a preliminary objection contending that the suit was not G 
duly instituted by the appellants within the meaning of the provisions of the 
• 
Code of Civil Procedure, 1908 as amended by the Ar.tending Act 46of1999; 
t-._ 
and hence the entire proceedings from the filing of the plaint and the 
entertaining of the interlocutory applications by the Single Judge of the High 
9 
H 
10 
SUPREME COURT REPORTS 
[2006] 2 S.C.R. 
A Court was without jurisdiction. The High Court allowed the appeal of the 
respondents holding that the plaint was filed by the appellants without 
compliance of the amended provisions of the Code and hence it is non-est in 
the eye of law; and that since it was rectified by the appellants, in the mean 
time, by filing an affidavit subsequently, the suit is deemed to have been 
B properly instituted by the appellants only with effect from the date of curing 
of the defect and not from the date of initial presentation of the plaint. 
In appeal of this Court, the appellants contended that the provisions 
contained in section 26 and Orders IV, VI and VII of the Code dealing with 
institution of suits are directory and not mandatory and hence an omission 
C to comply with such provisions would not ender a suit invalid; that the defect 
therein is a mere irregularity which can be cured by amendment; that the 
Court can grant an opportunity to the plaintiff to cure the defect and that 
when the defect is cured, the plaint must be taken to have been presented on 
the date when it was first presented and not on the date when the defect was 
cured; that the High Court Original Side Rules have an overriding effect over 
D the provisions of the Code; and that the Original Side Rules do not require 
the plaintiff to file an affidavit for verification of the contents in the plaint 
and hence in the absence of such requirement, it could not be insisted to file 
an affidavit under the amended provisions of the Code. 
The respondents contended that the amended provisions of the Code 
E relating to presentation of plaints would have to be interpreted in their literal 
sense, as otherwise the very purpose would be rendered nugatory; that Order 
VI of the Code referred to in the Original Side Rules must mean a reference 
of Order VI as it stood at the time when the Original Side Rules were framed 
and also as it stands after amendment in 2002; that non-compliance of the 
F provisions of sub-rule (4) of Rule 15 of Order VI would render the suit non-
es!; that the plaint must be deemed to have been duly instituted only after 
filing of an affidavit and not before; an

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