1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CIVIL WRIT PETITION No.5212/2013 Shambhu Lal & Anr. V/s. Ishwar Lal Date of Order :::
28. 05.2013 HON'BLE MR. JUSTICE P.K. LOHRA Mr. Suresh Shrimali for the petitioners. Mr. Ashwani Babel for the respondent. The petitioners-defendants have laid the present petition for assailing the impugned order dated 17th April, 2013 (Annex.14) passed by the learned Civil Judge (Jr. Div.) (West) Bhilwara, whereby the learned Judge has dismissed the application of the petitioners under section 151 CPC. By the said application under Section 151 CPC, the petitioners have made endeavour to persuade the learned court below to permit the petitioners to mark exhibit on the certified copy of the decision in criminal case which was taken on record by the learned trial Court by its order dated 20th April, 2012. The petitioners have, inter alia, averred in the application that due to bona fide error and oversight, certified 2 copy of the judgment of the criminal court has not exhibited although the same was on record, and therefore, the petitioners may be permitted to put/mark exhibit on the said document so that the same may be read in evidence. The application submitted on behalf of the petitioners was contested by the respondent-plaintiff and a written reply to the said application was submitted. In the reply, the respondent-plaintiff has opposed the prayer of the petitioners/defendants. Learned trial Court after hearing the rival parties, vide its order dated 17th April, 2013 rejected the prayer of the petitioners. I have heard the learned counsel for the parties and perused the impugned order. Mr. Suresh Shrimali, the learned counsel for the petitioners, has argued that while rejecting the application of the petitioners, the learned Court below has not recorded cogent and convincing reasons inasmuch as not putting/marking of exhibit on the document was a bona fide error which was procedural in nature and the same ought to 3 have been overlooked by the learned Court below for imparting substantial justice. Learned counsel for the petitioners, Mr. Shrimali, would urge that when the document was on record which was having definite bearing on the lis involved in the matter by not permitting the petitioners to put exhibit on the said document, the learned Court below has committed manifest error of law, which has resulted in miscarriage of justice. The submission of the learned counsel for the petitioners is that the learned Court below while rejecting the application of the petitioners has simply assigned the reason that the matter is old one, and therefore, at the stage of final hearing, no indulgence can be granted to the petitioners, which according to the learned counsel for the petitioners is not a justice oriented approach, and therefore, it has occasioned failure of justice. Buttressing these contentions, the Learned counsel for the petitioners would urge that taking into account the peculiar facts and circumstances of this case supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India is liable to be exercised to upset the impugned order. 4 In support of his contentions, the learned counsel for the petitioners has placed reliance on a judgment of Apex Court in case of Smt. Rani Kusum V/s. Smt. Kanchan Devi & Ors. [2005 (2) WLC (SC) Civil 390]. The Apex Court while examining the nature and object of the procedural law has made following observations in para 11:- 11. All the rules of procedure are the handmaid of justice. 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 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. Further elaborating the object of the procedural law the Court has made undermentioned observations in paras 13 to 15 in the verdict :- 13. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure 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 5 jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar, 1975 (1) SCC
774) 14. No person has a vested right in any course of procedure. 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 (1) All E.R. 524 (HL). 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. (See Shreenath and Anr. V. Rajesh and Ors., AIR 199.SC 1827).
15. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Learned counsel for the petitioners has also relied on a precedent in case of Heera Lal V/s. Addl. District Judge No.2, Alwar & Ors. [2007(3) WLC (Raj.) 249]. In the said decision, a co-ordinate Bench of this Court has held in clear and unequivocal terms that a litigant cannot suffer for the fault or inadvertence of a lawyer. While examining the rigor of Order 8 Rule 1 CPC, the Court has made following observations in paras 9 & 10:- 9. The submissions of Counsel for the petitioner is that reply was prepared under his instructions and signed by him before 6 the expiry of 90 days and he was confident that his lawyer would file the same, but the same was misplaced, therefore, there was no intentional inaction, deliberate omission or misdeameanour of his counsel. Even if the stand taken by the lawyer is found to be incorrect then also he should not suffer for the same. Counsel for the petitioner has placed reliance on AIR 198.SC 140.Rafiq & anr. Vs. Munshilal & anr.. The relevant porition of para 3 of the judgment is as follows :
3. .... Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel....
10. I have to only consider the fact whether the reason for delay in filing the reply is justified or not. I am of the considered view that the litigant should not be suffered on account of fault on the part of the Advocate. In the instant case, there was no intentional inaction, deliberate omission or misdemeanour on the part of counsel as the reply was misplaced inadvertently and the same is sufficient cause for condoning the delay in filing the reply. 7 Mr. Shrimali, learned counsel for the petitioners, has also taken shelter of a verdict of Apex Court in case of Zolba V/s. Keshao & Ors. [2009 (1) WLC (SC) Civil 81]. The Apex Court while considering the purport of Order 8 Rule 1 CPC has made following observations in para 8 of the verdict :- 8. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 of CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. Keeping this principle as laid down by this court in the case of Salem Advocate Bar Association (supra) in mind and in view of our observations made herein above, we now look into the averments made in the application for condoning the delay in filing the written statement. In the application, it has been stated that on instruction of his counsel in the trial court, the written statement was not filed within the period of limitation as the appellant was under bonafide belief that the written statement shall be filed after the decision of the appeal by the District Court.The written statement was, however, filed and the 8 records of the case were called from his lawyer who has been conducting his case in the appeal pending before the District Court. The facts disclose that the misc. appeal has been filed against an order of injunction before the District Court Chandrapur whereas the suit is pending before the Civil Judge, Junior Division, Nagbhid. Since the appeal was pending, the records of the appellant were then lying with the lawyer at Chandrapur. Therefore, the file was not available with the lawyer of the appellant at Nagbhid and, therefore, the written statement could not be filed within the period of limitation. Such being the position, in our view, the facts stated would constitute sufficient cause for condoning the delay in filing the written statement and it has to be taken that the non-availability of records at Nagbhid had prevented the appellant from filing the written statement within the period of limitation which in our view was an exceptional case constituting sufficient cause for condoning the delay in filing the written statement. In this view of the matter, in the facts and circumstances of the case and in view of the reasoning given above, we hold that the High Court as well as the trial court had erred in rejecting the application for condoning the delay in filing the written statement. Accordingly, the application for condoning the delay is allowed and the written statement filed by the appellant is accepted and consequent thereupon, the impugned order which affirmed the order of the trial court rejecting the application for condoning the delay in filing the written statement is set aside. The trial court shall now proceed with the hearing of the suit and dispose of the same positively within one year from the date of supply of a copy of this order to it. 9 Per contra, the learned counsel for the respondent, Mr. Ashwani Babel, would urge that the whole object of the petitioners in filing the application is to prolong the matter and as such the learned trial Court has rightly declined the prayer of the petitioners. The learned counsel for the respondent has contended that the suit was filed by the respondent-plaintiff in the year 1993 and since then almost a decade has elapsed, and therefore, in these circumstances, the learned Court below was justified in rejecting the application of the petitioners. Learned counsel for the respondent has also argued that while rejecting the application of the petitioners, the learned trial Court has not committed any error much less error apparent on the face of record, and therefore, no interference with the impugned order in exercise of certiorari supervisory jurisdiction of this Court is warranted. I have heard the rival submissions and examined the impugned order. True it is that the matter is pending before the learned trial Court since last one decade but at the same time it is also an admitted fact that the document in question on which the petitioners have prayed for marking exhibit is available on record and the error of not marking exhibit on the 10 document is a procedural error which can very well be condoned in the interest of justice. It is a trite law that when technicalities are pitted against the substantial justice, the best course for the Courts is to allow the substantial justice to prevail over technicalities. The Apex Court in the judgments referred to supra has also laid down that procedural law is handmaid but not mistress of justice. Procedural law is servant and cannot be tyrant. A glance at the impugned order makes it abundantly clear that while rejecting the application of the petitioners, the learned Court below has not recorded cogent and convincing reasons. In this view of the matter, the impugned order dated 17th April, 2013 (Annex.14) passed by the Court below is quashed and set aside with a direction to the learned trial Court to decide the application of the petitioners under Section 151 CPC afresh. It is expected from the learned trial Court that while deciding the application afresh, the learned trial Court shall be guided by the observations made by this Court hereinabove so as to permit the petitioners to put/mark exhibit on the certified copy of the verdict of the criminal Court. The petitioners are directed to make endeavour in this behalf as expeditiously as possible before the learned Court below and the requisite exercise be undertaken by the petitioners on or 11 before 5th July, 2013. Before parting, I may hasten to add that the suit is pending since 1993, therefore, it is expected from the learned Court below to decide the suit finally as early as possible preferably within a period of one month commencing from the 5th July, 2013. The parties are left to bear their own costs. (P.K. LOHRA), J.
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