Shiv Shankar Dey Vs. Damodar Ram - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]d.n. patel, j.1. the present writ petition has been preferred under article 227 of the constitution of india against the order, passed by the learned sub judge-i, bokaro dated 19th february, 2009 in title suit no. 23 of 2007 whereby, the written statement tendered by the present petitioner (original defendant) was not accepted by the trial court, under order viii rule 1 of the code of civil procedure, as the maine is time barred.2. having heard learned counsel for both the sides and looking to the facts and circumstances of the case, i hereby, quash and set aside the order, passed by the learned sub judge-i, bokaro, dated 19th february, 2009 in title suit no. 23 of 2007, for the following facts and reasons:(i) it appears from the facts of the case that the respondent, who is original plaintiff, has instituted title suit no. 23 of 2007 before the court of learned sub judge-i, bokaro and the present petitioner is original defendant.(ii) it appears that the original defendant has filed his appearance before the trial court in the aforesaid suit on 22nd november, 2007 and thereafter, the written statement was tendered before the trial court on 28th january, 2008.(iii) it appears that this written statement has not been accepted, as the same is beyond the period of 90 days.(iv) it ought to be kept in mind by the trial court that the provision of the code of civil procedure especially, under order viii rule 1 thereof, is not a mandatory to nature, but, it is procedural law. court, while rejecting the prayer for filing of the written statement, ought to have been kept in mind the background of the party, social structure and the disability attached with the party. in this state of jharkhand, people are coming from remote places. sometimes, they are not, at all, aware of the procedure. it happens that they are late by few days not knowing the law and its procedure. it has been held by hon'ble supreme court in the case of kallsh v. nanhku and ors. as reported in : (2005) 2 scc 400 especially in paragraph nos. 28 and 46 (iv) thereof, which read as under:28. all the rules of procedure are the handmaid of fustice. 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 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 [he ends of justice. the observations made by krishna iyer, j. in sushil kumar sen v. state of bihar are pertinent: (scc p.777, paras 5-6)the mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.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 justitiae where the tragic sequel otherwise would be wholly inequitable...justice is the goal of jurisprudence-processual, as mush as substantive.46(iv) the purpose of providing the time schedule for filing the written statement under order 8 rule 1 cpc is to expedite and not to scuttle the hearing. the provision spells out a disability on the defendant. it does not impose an embargo on the power of the court to extend the time. though the language of the proviso to rule 1 order 8 cpc is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. the provision being in the domain of the procedural law, it has to be held directory and not mandatory. the power of the court to extend time for filing the written statement beyond the time schedule provided by order 8 rule 1 cpc is not completely taken await.(emphasis supplied)(v) it has been held by hon'ble supreme court in the case of salem advocate bar association, t.n. v. union of india as reported in : (2005) 6 scc 344 especially in paragraph nos. 20 and 21 thereof, which read as under:20. the use of 'shall' in order 8 rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. we have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. the use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard no the intention of the legislation, the same can be construed as directory. the rule in question has to advance the cause of justice and not to defeat it. the rules of procedure are made to advance the cause of justice and not to defeat it. construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. the rules of procedure are the handmaid of justice and not its mistress. in the present context, the strict interpretation would defeat justice.21. in construing this provision support can also be had from order 8 rule 10 which provides that where any party from whom a written statement is required under rule 1 or rule 9, fails to present the same within the time permited or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. on future to file written statement under this provision the court has been given the discretion either to prononce judgment against the defendant or make such other order in relation to the suit as it things fit. in the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. in construing the provision of order 8 rule 1 and rule 10, the doctrine of harmonious construction is required to be applied. the effect would be that under rule 10 order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in order 8 rule 1. there is no restriction in order 8 rule 10 that after expiry of ninety days, further time cannot be granted. the court has wide power to 'make such order in relation to the suit as it thinks fit'. clearly, therefore, the provision of order 8 rule 1 providing for the upper limit of 90 days to file written statement is directory. having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. the time can be extended only in exceptionally hard cases, while extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. the discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by order 8 rule 1.(emphasis supplied)in view of the aforesaid decision also provisions of order viii rule 1 of the code of civil procedure is not mandatory in nature, but, it is procedural one.(vi) it appears that more than one occasion, an ex-parte orders have been passed. all these things have caused delay and already cost of rs. 3400/- has been imposed by the trial court for recalling ex-parte orders, in the aforesaid suit.3. as a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, i hereby, quash and set aside the order, passed by the learned sub judge-i. bokaro dated 19th february, 2009 in title suit no. 23 of 2007 and the written statement, filed by the present petitioner (original defendant] is ordered to be taken on record with cost of rs. 500/- (rs. five hundred only). this amount of cost shall be deposited before the trial court, within a period of two weeks, from today, which will be allowed to be withdrawn by the original plaintiff, upon proper application, before the trial court.4. it is assured by the learned counsel for the petitioner (original defendant) that he will cooperate the hearing of the trial, so that the trial may be over, without causing any delay. the trial court is directed to hear and dispose of the title suit no. 23 of 2007, as expeditiously as possible and practicable, preferably on on or before 30th march, 2011, without granting unnecessary adjournmments, to the parties to the suit.5. this writ petition is hereby, allowed, with the aforesaid observations and directions.