Pramod Agrawal vs Lomesh Das Vaishnav on 11 November, 2022

[Cites 59, Cited by 0]

Chattisgarh High Court

Pramod Agrawal vs Lomesh Das Vaishnav on 11 November, 2022

                                     1


                                                                         AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                  Reserved for orders on : 22/08/2022

                     Order delivered on :11/11/2022

                          WP227 No. 310 of 2022

   Pramod Agrawal, Son of Late Kishori Agrawal, aged 64 years, R/o
    Surya Vihar Behind Ration Store, Lingiyadih, Bilaspur, Tehsil and
    District Bilaspur (CG)
                                                               ---- Petitioner
                                   Versus
1. Lomesh Das Viashnav, Son of Shri Shyam Das Viashnav, aged 60
   years, R/o B-207, Ramagreen City, Khamtari Road Bilaspur, Tehsil and
   District Bilaspur (CG)
2. State of Chhattisgarh through Collector Bilaspur (CG)
                                                           ---- Respondents

WP227 No. 325 of 2022  Pramod Agrawal, Son of Late Kishor Agrawal, aged 64 years, R/o Surya Vihar behind ration store, Lingiyadih, Bilaspur, Tehsil and District Bilaspur (CG)

---- Petitioner Versus

1. Lomesh Das Viashnav, Son of Shri Shyam Das Viashnav, aged 60 years, R/o B-207, Ramagreen City, Khamtari Road Bilaspur, Tehsil and District Bilaspur (CG)

2. State of Chhattisgarh through Collector Bilaspur (CG)

---- Respondents For Petitioner/Defendant No. 1 : Mr. B. P. Sharma and Mr. M.L. Sakat, Advocates For Respondent No.1/Plaintiff : Mr. Ratnesh Kumar Agrawal, Advocate For Respondent No. 2/State : Mr. Lalit Jangde, Advocate.

Hon'ble Shri Justice Rakesh Mohan Pandey CAV ORDER 2 This order shall dispose of WP (227) No. 310 of 2022 and WP (227) No. 325 of 2022.

WP (227) No. 325 of 2022 -

1. The present petition arises out of the order dated 13.05.2022 whereby the learned Xth Additional District Judge, Bilaspur, C.G. has closed the opportunity of the petitioner/defendant no. 1 to file written statement.

2. The respondent no. 1/Plaintiff filed a Civil Suit on 11.01.2021 against the petitioner/defendant no. 1 claiming therein declaration of sale deed dated 22.02.2010 as null and void thereby declaring the respondent no.1/plaintiff as owner of the suit property situated at P.H.No. 20/22, Khasra No. 54/169, Lingiyadih, Bilaspur, Tahsil and District Bilaspur, admeasuring 2400 sq. ft., for its vacant possession and perpetual injunction. The plaintiff further pleaded that he purchased the suit land from Smt. Shanti Devi Meghani on 29.07.1999 through a registered sale deed. He was working as Sub-

Engineer at different places and on 20.8.2018 when he visited the suit property; he found the possession of defendant no. 1 over such property.

Thereafter, he obtained the copy of sale deed only then he came to know that sale deed has been executed in favor of the petitioner/defendant no.1 by impersonation. The Civil Suit was registered as C.S. No. 81-A/2021, however, despite several opportunities, the petitioner/defendant no. 1 didn't file the written statement within prescribed time, therefore, on 15.09.2021 the respondent no. 1/plaintiff preferred an application under Order 8 Rule 10 of CPC for closing the opportunity of the petitioner/defendant no. 1 to file written statement. Subsequently, in the month of May, 2022 the petitioner/defendant no. 1 preferred an application under Section 10 read with 151 of CPC for staying the further proceeding of aforesaid Civil Suit inter alia on the ground 3 that certain criminal proceeding has also been drawn against the petitioner/defendant no. 1 on the same set of facts upon which the Civil Suit rests.

3. The learned trial court vide order 13.05.2022 decided the application of the respondent no. 1/plaintiff holding that the petitioner/defendant no. 1 is appearing in the said matter since 24.03.2021 and several opportunities were granted to him for filing the written statement. It was also observed that on 04.10.2021 the earlier presiding officer of the court while deciding the application of the respondent no.1/plaintiff under Order 8 Rule 10 of CPC, had granted last opportunity to the petitioner/defendant no.1 for filing the written statement. On 09.05.2022 also, last opportunity was granted to him for filing the written statement and day of 13.05.2022 was fixed as the date of next hearing, however, despite six opportunities and after lapse of 14 months, the petitioner/defendant no. 1 is seeking time to file written statement. Considering the delaying tactics used by the petitioner/defendant no. 1, the learned trial court allowed the application of the respondent no.1/plaintiff and closed the opportunity of the petitioner/defendant no. 1 for filing written statement and further, fixed the matter for framing of the issues therein.

4. The learned counsel for the petitioner would submit that the order passed by the learned trial court is cryptic and it erred in closing the right of the petitioner for filing written statement. He would also submit that the learned court below ought to have considered the application of the petitioner filed under Section 10 read with 151 of CPC for staying the further proceedings of the suit.

5. Per contra, the learned counsel for the respondent no. 1 would support the order impugned and submit that despite availing several opportunities the petitioner has still not complied with the orders of the learned court below and consequently failed in filing the written statement.

6. I have learned counsel appearing for the respective parties and perused the material available on record.

7. For the purpose of discussion it would be apposite to go through the bare provision of the Order 8 Rule 1 of the CPC -

ORDER VIII - Written statement, set-off and counter-claim Rule 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.

*[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 written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.] It is pertinent to mention here that second proviso to the rule 1 of the Order 8 of CPC applies to commercial suits.

8. The Hon'ble Supreme Court in Kailash v. Nanhku and others reported in AIR 2005 SUPREME COURT 2441 which still holds the field, while dealing with the issue as to whether 'Order 8 Rule 1 CPC, is mandatory or directory' observed as under -

Alternatively, Order VIII, Rule 1 of CPC, mandatory or directory?

22. This leads us to examine the alternative contention of the learned senior counsel for the appellant that, in any event, Order VIII, Rule 1 of the CPC is not mandatory but directory in nature, a submission on which both the learned counsel for the parties have forcefully argued and the learned Amicus Curiae has also made de- tailed submissions.

23. The CPC which consolidated and amended the laws relating to the procedure of the Courts of Civil Judicature in the year 1908, has in the recent times undergone several amendments based on the recommendations of the Law Commission displaying the anxiety of Parliament to secure an early and expeditious disposal of civil suits and proceedings but without sacrificing the fairness of trial and the principles of natural justice in-built in any sustainable procedure. The Statement of Objects and Reasons for enacting Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) records the follow- ing basic considerations which persuaded the Parliament in enact- ing the amendments:-

(i) that a litigant should get a fair trial in accordance with the ac-

cepted principles of natural justice;

(ii) that every effort should be made to expedite the disposal of civil suits and proceedings, so that justice may not be delayed;

(iii) that the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community who do not have the means to engage a pleader to de- fend their cases.

24. By Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) the text of Order VIII, Rule 1 was sought to be substituted in a man- ner that the power of court to extend the time for filing the written statement was so circumscribed as would not permit the time being extended beyond 30 days from the date of service of summons on the defendant. As is well-known, there was stiff resistance from the members of the Bar against enforcing such and similar other provi- sions sought to be introduced by way of amendment and hence the Amendment Act could not be promptly notified for enforcement. The text of the provision in the present form has been introduced by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) with effect from 1-7-2002. The purpose of such like amendments is stated in the Statement of Objects and Reasons as "to reduce delay in the disposal of civil cases".

25. The text of Order VIII, Rule 1, as it stands now, reads as under:-

"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 rea- sons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

26. Three things are clear. Firstly, a careful reading of the language in which Order VIII, 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 ex- tended 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 VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Or- der VIII, Rule 1 in the present shape is to curb the mischief of un- scrupulous defendants adopting dilatory tactics, delaying the dis- posal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious incon- venience 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 fair- ness which is a basic element of justice cannot be permitted to be buried.

27. All the rules of procedure are the handmaid of justice. The lan- guage employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing proce- dure 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 man- ner which would leave the court helpless to meet extraordinary situ- ations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774, are per- tinent:-

"The mortality of justice at the hands of law troubles a Judge's con- science and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to over- power 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 such as substantive."

28. In The State of Punjab and another v. Shamlal Murari and an- other, (1976) 1 SCC 719, the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that "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." Ghan- shyam Dass and others v. Dominion of India and others, (1984) 3 SCC 46, the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to 7 subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.

29. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words -shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language mandatory character, the same is not without exceptions. The courts when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.

30. In Sangram Singh v. Election Tribunal, Kotah and another, (1955) 2 SCR 1, this Court highlighted 3 principles while interpreting any portion of the CPC. They are:

(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 re-

quires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that af- fect 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.

31. Our attention has also been invited to a few other provisions such as Rules 9 and 10 of Order VIII. In spite of the time limit ap- pointed by Rule 1 having expired, the court is not powerless to per- mit a written statement being filed if the court may require such writ- ten statement. Under Rule 10, the court need not necessarily pro- nounce judgment against the defendant who failed to file written statement as required by Rule 1 or Rule 9. The court may still make such other order in relation to the suit as it thinks fit.

32. As stated earlier, Order VIII, Rule 1 is a provision contained in the CPC and hence belongs to the domain of procedural law. An- other feature noticeable in the language of Order VIII, Rule 1 is that although it appoints a time within which the written statement has to be presented and also restricts the power of the Court by employing language couched in a negative way that the extension of time ap- pointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain conse- quences follow.

33. Justice G.P. Singh notes in his celebrated work "Principles of Statutory Interpretation" (Ninth Edition, 2004) while dealing with mandatory and directory provisions - "The study of numerous cases on this topic does not lead to formulation of any universal rule ex- cept this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statu- tory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said : 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of jus- tice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered'. (p.338) "For ascertaining the real intention of the Legislature", points out Subbarao, J. "the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other pro- visions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute pro- vides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not vis- ited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered". If object of the enactment will be de- feated by holding the same directory, it will be construed as manda- tory, whereas if by holding it mandatory serious general inconve- nience will be created to innocent persons without very much fur- thering the object of enactment, the same will be construed as direc- tory." (pp.339-340)

34. Two decisions, having a direct bearing on the issue arising for decision before us, have been brought to our notice, one each by the learned counsel for either party. The learned senior counsel for the appellant submitted that in Topline Shoes Ltd. v. Corporation Bank, (2002) 6 SCC 33, pari materia provision contained in Section 13 of the Consumer Protection Act, 1986 came up for the considera- tion of the Court. The provision requires the opposite party to a com- plaint to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. The Court took into consideration the Statement of Objects and Reasons and the legislative intent behind providing a time frame to file reply and held : (i) that the provision as framed was not mandatory in nature as no penal consequences are pre- scribed if the extended time exceeds 15 days and; (ii) that the provi- sion was directory in nature and could not be interpreted to mean that in no event whatsoever the reply of the respondent could be taken on record beyond the period of 45 days.

35. The Court further held that the provision is more by way of pro- cedure to achieve the object of speedy disposal of such disputes. The strong terms in which the provision is couched are an expres- sion of 'desirability' but do not create any kind of substantive right in favour of the complainant by reason of delay so as to debar the re- spondent from placing his version in defence in any circumstances whatsoever.

36. In our opinion, the view of the law so taken by this Court squarely applies to the issue before us and we find ourselves in agreement with the law stated by the two-Judge Bench of this Court in the case of Topline Shoes Ltd. (supra).

37. The learned counsel for the respondent, on the other hand, in- vited our attention to a three-Judge Bench decision of this Court in Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi, (2002) 6 SCC 635, wherein we find a reference made to Order VIII, Rule 1 of the CPC vide paras 14 and 15 thereof and the Court having said that the mandate of the law is required to be strictly adhered to. A careful reading of the judgment shows that the provisions of Order VIII, Rule 1 of the CPC did not directly arise for consideration before the Court and to that extent the observations made by the Court are obiter. Also, the attention of the Court was not invited to the earlier decision of this Court in Topline Shoes Ltd. case (supra).

38. It was submitted by the senior learned counsel for the appellant that there may be cases and cases which cannot be foretold or thought of precisely when grave injustice may result if the time limit of days prescribed by Order VIII, Rule 1 was rigidly followed as an insurmountable barrier. The defendant may have fallen sick, unable to move; may be he is lying unconscious. Also, the person entrusted with the job of presenting a written statement, complete in all re- spects and on his way to the court, may meet with an accident. The illustrations can be multiplied. If the schedule of time as prescribed was to be followed as a rule of thumb, failure of justice may be occa- sioned though for the delay, the defendant and his counsel may not be to blame at all. However, the learned counsel for respondent No.1 submitted that if the court was to take a liberal view of the pro- vision and introduce elasticity into the apparent rigidity of the lan- guage, the whole purpose behind enacting Order VIII, Rule 1 in the present form may be lost. It will be undoing the amendment and restoring the pre-amendment position, submitted the learned coun- sel.

39. We find some merit in the submissions made by the learned counsel for both the parties. In our opinion, the solution - and the correct position of law - lie somewhere midway and that is what we propose to do placing a reasonable construction on the language of Order VIII, Rule 1.

40. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provi- sions is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose the battle at the end. Therefore, the judge try- ing the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

41. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for draft- ing his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 10 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an ex- ception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the cir- cumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the in- terest of justice, and grave injustice would be occasioned if the time was not extended.

42. A prayer seeking time beyond 90 days for filing the written state- ment ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defen- dants on terms including imposition of compensatory costs and may also insist on affidavit, medical certificate or other documentary evi- dence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist.

43. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, the defendant shall be permitted to seek ex- tension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to com- pensate the plaintiff for the delay and inconvenience caused to him.

44. However, no strait-jacket formula can be laid down except that the observance of time schedule contemplated by Order VIII, Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order VIII, Rule 1, though couched in mandatory form, is directory being a provision in the do- main of processual law.

45. We sum up and briefly state our conclusions as under:-

42(i). The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrific- ing the expediency and interests of justice) includes power to ad- journ the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the CPC is not called for.

45(ii). On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technical- ity. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.

45(iii). In case of conflict between the provisions of the Representa- tion of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of 11 Procedure contained in the CPC on the other hand, the former shall prevail over the latter.

45(iv). The purpose of providing the time schedule for filing the writ- ten statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the de- fendant. 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 of Order VIII of the CPC is couched in negative form, it does not spec- ify 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 pro- vided by Order VIII, Rule 1 of the CPC is not completely taken away.

45(v). Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the pro- vision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an excep- tion, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.

9. Similarly, in its subsequent judgment in Smt. Rani Kusum v. Smt. Kanchan Devi and ors. reported in AIR 2005 SC 3304 the Hon'ble Supreme Court while referring to Kailash v. Nanhku (supra) held as under -

6. The scope and ambit of Order VIII, Rule 1 of CPC has been ex-

amined in detail by this Court in Kailash v. Nanhku and Ors. (2005 (4) SCC 480).

7. The CPC enacted in 1908 consolidated and amended the laws relating to the procedure of the Courts of Civil Judicature. It has un- dergone several amendments by several Acts of Central and State Legislatures. Under Section 122, CPC the High Courts have power to amend by rules, the procedure laid down in the Orders. In exer- cise of these powers various amendments have been made in the Orders by various High Courts. Amendments have also been made keeping in view recommendations of Law Commission. Anxiety of Parliament as evident from the amendments is to secure an early and expeditious disposal of civil suits and proceedings without sacri- ficing the fairness of trial and the principles of natural justice in-built in any sustainable procedure. The Statement of Objects and Rea- sons for enacting Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) (in short '1976 Amendment Act') highlight following ba- sic considerations in enacting the amendments :-

(i) with the accepted principles of natural justice that a litigant should get a fair trial in accordance;

(ii) that every effort should be made to expedite the disposal of civil suits and proceedings, so that justice may not be delayed;

(iii) that the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community who do not have the means to engage a pleader to de-

fend their cases."

10. Order VIII, Rule 1 after the amendment 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. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the dis- posal of cases causing inconvenience to the plaintiffs and petition- ers approaching the court for quick relief and also to the serious in- convenience of the court faced with frequent prayers for adjourn- ments. The 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 justice buried.

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 ER 524 (HL). A procedural law should not ordinar- ily be construed as mandatory, the procedural law is always sub- servient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shree- nath and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827).

17. Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was rejected by this Court in Salem Advo- cate Bar Association, Tamil Nadu v. Union of India (JT 2002 (9) SC

175). However to work out modalities in respect of certain provisions a Committee was constituted. After receipt of Committee's report the matter was considered by a three-Judge Bench in Salem Advocate Bar Association, Tamil Nadu v. Union of India (JT 2005 (6) SC 486). As regards Order VIII, Rule 1, Committee's report is as follows :

"The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII, Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to ex- tend the time even in an exceptionally hard case.

It has been common practice for the parties to take long adjourn- ments for filing written statements. The Legislature with a view to curb this practice and to avoid unnecessary delay and adjourn- ments, has provided for the maximum period within which the writ- ten statement is required to be filed. The mandatory or directory na-

ture of Order VIII, Rule 1 shall have to be determined by having re- gard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the Legislature. The con- sequences which may follow and whether the same were intended by the Legislature have also to be kept in view.

In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur [AIR 1965 SC 895], a Constitution Bench of this Court held that the question whether a particular provision is mandatory or di- rectory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the Legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particu- lar provision is mandatory or directory.

In Sangram Singh v. Election Tribunal Kotah and Anr. [AIR 1955 SC 425], considering the provisions of the Code dealing with the trial of the suits, it was opined that :

"Now a code of procedure must be regarded as such. It is proce- dure, something designed to facilitate justice and further its ends : not a Penal enactment for punishment and penalties; not a thing de- signed to trip people up. Too technical 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.

Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which re- quires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that af- fect 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.

But taken by and large, and subject to that proviso, our laws of pro- cedure should be construed, wherever that is reasonably possible, in the light of that principle."

In Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33], the question for consideration was whether the State Consumer Dis- putes Redressal Commission could grant time to the respondent to file reply beyond total period of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide time frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was no- ticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be direc- tory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case.

The use of the word 'shall' in Order VIII, Rule 1 by itself is not con- clusive 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 to 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. Construc- tion of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand- maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII, 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 permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in rela- tion to the suit as it thinks fit. On failure to file written statement un- der this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other or- der in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discre- tion to pronounce or not to pronounce the judgment against the de- fendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provi- sion of Order VIII, Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that un- der Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after ex- piry of period of 90 days provided in Order VIII, Rule 1. There is no restriction in Order VIII, Rule 10 that after expiry of ninety days, fur- ther 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 VIII, Rule 1 providing for 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 rou- tinely exercised so as to nullify the period fixed by Order VIII, Rule

1."

18. The Bench in para 54 after considering the Committee's report has observed as follows :

"Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report on this Court within four months."

10. Further, in Shaikh Salim Haji Abdul Khayumusab v. Kumar and Ors. reported in AIR 2006 SC 396 the Hon'ble Supreme Court again reiterated the principles laid down in Kailash v. Nanhku (supra) and Smt. Rani Kusum v. Smt. Kanchan Devi (supra).

11. The High Court of M.P. in Champa Bai v. Kalyan Singh and Ors.

reported in AIROnline 2019 MP 1371 relying upon Kailash v. Nanhku (supra) observed as under -

11. The core issue is whether reasons assigned by the Court below in permit- ting the defendants No. 1 to 5 to file written statement is in accordance with law? In the opinion of this Court, this point is no more res integra. In Kailash (supra) Apex Court opined as under:-

"(v) Though Order 8, Rule 1, Civil Procedure Code is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be fol-

lowed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by wav of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are excep- tional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be im- posed and affidavit or documents in support of the grounds pleaded by the de- fendant for extension of time may be demanded, depending on the facts and circumstances of a given case."

(Emphasis supplied)

12. The Apex Court in no uncertain terms made it clear that although Order 8, Rule 1, Civil Procedure Code is part of procedural law and directory in nature, the permission to file written statement cannot be granted as a matter of rou- tine and merely upon asking. The same view is taken by the Apex Court in (2005) 6 SCC 344, Salem Advocate Bar Association, T.N. v. Union of India. The Apex Court opined that the provision of Order 8, Rule 1 providing for 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.

13. In (2007) 6 SCC 420, R.N. Jadi and Brothers v. Subhash Chandra the Apex Court opined as under:-

15. A dispensation that makes Order 8, Rule 1 directory, leaving it to the Courts to ex-

tend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justifica- tion for granting such extension, the Court being conscious of the fact that even the power of the Court for extension inhering in section 148 of the Code, has also been re- stricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8, Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by Courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in Courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine and Sons, reported in (1968) 2 QB 229 that law's delays have been intolera-

ble and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?

14. In (2007) 14 SCC 431, Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores the Apex Court opined that the extension of time can be granted by way of ex- ception and for reasons to be recorded in writing. It is important to note that Apex Court opined that in no case the defendants be permitted to seek exten- sion of time when there is laxity or gross negligence on the part of the defen- dant or his counsel. In the present case there is laxity or gross negligence on the part of defendants No. 1 to 5 or his counsel. Judgment of Kailash (supra) is again considered in 2014 (2) MPLJ (S.C.) 315 : (2014) 2 SCC 302, Sandeep Thapar v. SME Technologies (P) Ltd. In the opinion of this Court, the reasons assigned in Annexure P/7 cannot be treated as exceptional or justifiable rea- sons. The finding of the Court below reproduced in para 10 above shows that trial Court has found that there is laxity on the part of defendants No. 1 to 5. No exceptional or special reasons are recorded by the Court below while granting opportunity to file written statements. This runs contrary to settled legal posi- tion. On the basis of reasons assigned, permission cannot be granted. The im- pugned order shows that Court has mechanically granted the permission much after 90 days.

15. Although Shri A.Y. Bhardwaj stated that the procedural law is handmaid of justice and lenient view need to be taken, it is suffice to say that this aspect is dealt with in Kailash (supra) by Supreme Court (para 28 to 31). After consider- ing those judgments, the Apex Court opined that the time to file reply cannot be granted as a matter of routine or merely on asking. This view is constantly fol- lowed in other judgments mentioned above."

12. The High Court of Himachal Pradesh in Amrik Singh and Anr. V. Gurbachan Singh and Anr. reported in AIROnline 2020 HP 428 setting aside the impugned order allowed the petition therein subject to cost of Rs.

15,000/- payable by the defendant to the plaintiff. It was observed therein as under -

3. No doubt as per provisions contained under Order 8 Rule 1 CPC, defen- dants are required to file written statement within a period of thirty days, but such time can be further extended by the court up to ninety days as has been provided in the Proviso to Order 8 Rule 1 CPC. Otherwise also, it has been re- peatedly held by the Hon'ble Apex Court as well as this court that whenever technicalities are pitted against substantial justice, it is the substantial justice, which is to prevail. It has been categorically held by the Hon'ble Apex Court in Salem Advocate Bar Association, T.N. versus Union of India, (2005)6 SCC 344 : (AIR 2005 SC 3353), that 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. Hon'ble Apex Court has categorically held in the aforesaid judgment that the rules or procedure are handmaid of justice and not its mistress. While interpreting the word "shall" as provided Order 8 Rule 1, Hon'ble Apex Court has held that though 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 to the intention of the legislation, the same can be construed as directory. The relevant paras of the judgment is reproduced herein-below:-:-

"20. The use of the word 'shall' in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascer- tain the object which is required to be served by this provision and its design 17 and context in which it is enacted. The use of the word 'shall' is ordinarily in- dicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to 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 or procedure are 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 permitted 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 failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in rela- tion to suit as it thinks 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 pro- nounce the judgment against the defendant even if 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 harmo- nious construction is required to be applied. The effect would be that under Rule 10 of Order 8, the court in its discretion would have power to allow the de- fendant to file written statement even after expiry of 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 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."

13. The High Court of Allahabad in Baba Deen Alias Vijay Prakash v.

Sundar Lal and Ors.reported in AIROnline 2021 All. 752 observed as under -

8. Having heard learned counsel for the parties and from perusal of the record, it appears that the Court while passing the order did not take note of the deci- sion of the Apex Court in the case of Kailash vs. Nanhku and Ors., (2005) 4 SCC 480 : (AIR 2005 SC 2441) where the Apex Court had the occasion to con- sider whether the provisions of Order 8 Rule 1 CPC are directly or mandatory and after considering the legal submission, it was held as under:-

"41. Considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provi- sion, has expired. However, we may not be misunderstood as nullifying the en- tire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delay- ing the trial of election petition, the successful candidate may succeed in enjoy- ing the substantial part, if not in its entirety, the term for which he was elected 18 even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be hon- oured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the writ- ten statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the court. The exten- sion of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of rou- tine and merely for the asking, more so, when the period of 90 days has ex- pired. The extension can be only by way of an exception and for reasons as- signed by the defendant and also recorded in writing by the court to its satis- faction. It must be spelled out that a departure from the time schedule pre- scribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the con- trol of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended."

14. Recently the Hon'ble Supreme Court in Bharat Kalra v. Raj Kishan Chhabra reported in 2022 SCC Online SC 613 relying upon the earlier judgment rendered in Kailash v. Nanhku (supra) observed as under -

3. Admittedly, the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Act, 2015. Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as 'Kailash v. Nanhku' reported in (2005) 4 SCC 480.

4. In view of the aforesaid judgment, we find that the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing of the written statement is unreasonable.

15. In the case in hand, the petitioner/defendant no. 1 has already been granted several opportunities to file the written statement however he kept on prolonging the proceedings on pretext of one or the other reasons which is certainly not the intent behind amending the Order 8 Rule 1 of CPC.

However, it is also true as observed in Kailash (supra) that "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 19 that they should not be precluded from participating in them." Further, the suit is now at its preliminary stage and keeping in view the law laid down by the Hon'ble Supreme Court and other High Courts as well, as well as, the rights of the plaintiff as regards the suit; it is held that the in the interest of justice, petitioner/ defendant no. 1 may be granted one more opportunity to file written statement.

16. Consequently, in view of the above, present petition is allowed and im-

pugned order dated 13.05.2022 (Annexure-P/6), is ordered to be quashed and set-aside and the petitioner/defendant no. 1 is directed to file written statement on or before 30.11.2022 before the court below, subject to pay-

ment of costs amounting to Rs. 10,000/- payable to the plaintiff. It is made clear that in case written statement is not filed within the time stipulated by this Court, impugned order quashed by this Court shall automatically revive and no more opportunity would be granted in this regard.

WP (227) No. 310 of 2022 -

17. Now coming to next issue involved in WP (227) No. 310/2022 whereby application moved by the petitioner/defendant no. 1 under section 10 read with section 151 of CPC has been rejected vide order dated 13.05.2022 by the learned Xth Additional District Judge, Bilaspur, C.G.

18. The facts of the Civil Suit have already been depicted in the para no. 2 of this order. In the Civil Suit, petitioner/respondent no. 1 filed an application under Section 10 read with 151 of CPC on 13.05.2022 for staying the further proceeding of aforesaid Civil Suit inter alia on the ground that certain criminal proceeding has been drawn against the petitioner/defendant no. 1 on the same set of facts upon which the Civil Suit rests. The petitioner has not given details of the criminal proceeding pending against him in the writ petition, 20 however, in the application filed under Section 10 read with Section 151 of CPC it has been stated that the plaintiff had filed W.P.Cr. No. 566 of 2020 wherein liberty was granted to file a complaint before concerned Police Sta-

tion. It is further stated that in respect of disputed transaction, Civil Suit is filed and certain criminal proceedings have also been drawn against the peti-

tioner, which is under consideration before the competent Criminal Court but registration number of criminal case, name of Court, parties to the case, na-

ture of allegations, have not been pleaded. The petitioner has cited various judgments instead of details of the criminal case.

19. The learned court below vide impugned order dated 13.05.2022 reject-

ing the application of the petitioner/defendant no. 1 observed that the ingredi-

ents of Section 10 CPC do not apply to the case as neither the investigation has begun nor charge sheet has been filed in the criminal case and also no any other civil suit with regard to subject matter of suit property is pending before any other competent Civil Court.

20. Learned counsel for the petitioner would submit that the learned court below erred in deciding the instant application and has misguided itself by not considering the aspect of embarrassment of the petitioner and also the possibility of rendering conflicting decision by the civil as well as criminal court. He further submits that the simultaneous continuance of civil and crimi-

nal proceedings will definitely cause embarrassment. His next contention is that filing of written statement may cause prejudice as he has to disclose his plea of defense and same would cause embarrassment. He would heavily rely upon the judgment of the Hon'ble Supreme Court in matter of M.S.Sher-

iff v. State of Madras reported in AIR 1954 SC 397.

21. Per contra, learned counsel for respondent no. 1 while supporting the order impugned would vehemently submit that Section 10 has no application in the aforestated facts and circumstances of the case. He informed this Court that a complaint case under Section 200 of Cr.P.C. has been preferred however same has not been registered yet. He would further submit that the learned court has rightly rejected the application of the petitioner.

22. I have heard the learned counsel for the parties and perused the mate-

rial available on record with utmost circumspection.

23. For the purpose of discussion Section 10 of CPC may be jotted down for reference -

Section 10 - Stay of suit: -

"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit be-

tween the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 6 [India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of 6 [India] established or continued by 7 [the Central Government 8 ***.] and having like jurisdiction, or before 9 [the Supreme Court]." Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in 6 [India] from trying a suit founded on the same cause of action.

24. The Hon'ble Supreme Court in the matter M.S. Sheriff (supra) specifically held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal Courts is not a relevant consideration. It was held as under -

15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some differ- ence of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting de- cision in the civil and criminal Courts is a relevant consideration. The law en- visages such an eventuality when it expressly refrains from making the deci- sion of the Court binding on the other, or even relevant, except for certain 22 limited purposes, such as sentence or damages. The only relevant consider- ation here is the likelihood of embarrassment.

16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till every- body concerned has forgotten all about the crime. The public interest de- mand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the inno- cent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.

(emphasis supplied)

25. Then, in State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd.

and Ors. reported in (1996) 3 SCC 87 it was observed as under -

"3. It is settled law that pendency of the criminal matters would not be an im-

pediment to proceed with the civil suits. The criminal court would deal with the offence punishable under the Act. On the other hand, the courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of their power. We have never come across stay of any civil suits by the courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on a wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise, it no longer subsists, since many of them have filed their defences in the civil suit. On principle of law, we hold that the approach adopted by the High Court is not correct. But since the defence has already been filed nothing survives in this matter.

(emphasis supplied)

26. Further, the Hon'ble Supreme Court in K G Premshankar v. Inspector of Police and another reported in (2002) 8 SCC 87 : 2002 CRI. L. J. 4343 following its earlier judgment in M.S. Sheriff (supra) observed as under -

"24. Further, in M.S. Sheriff and another v. State of Madras and others [AIR 1954 SC 397] the Constitution Bench of this Court dealt with exactly similar situation, where two sets of proceedings arising out of the same facts were pending, namely, two civil suits for damages for wrongful confinement and another two criminal prosecutions under Section 344, IPC for wrongful con- finement. In that context, it was contended that simultaneous prosecution of these matters will embarrass the accused and the Court considered the question whether criminal prosecution should be stayed. In that context, it was held thus :-

"As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or evenrelevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment."

25. Shri Altaf Ahmed, learned Additional Solicitor General, further referred to the Full Bench decision of Lahore High Court in B.N. Kashyap v. Emperor [AIR 1945 Lahore 23] wherein the Full Bench considered the following ques- tion :-

"When there are concurrent proceedings covering the same ground before a criminal Court and a civil Court, the parties being substantially the same, would the judgment of the civil Court, if obtained first, be admissible in evi- dence before the criminal Court in proof or disproof of the fact on which the prosecution is based?"

26. In that context while deciding the said question the Court observed thus :-

"In other words, the short point to decide is whether the finding on certain facts by a civil Court is relevant before the criminal Court when it is called upon to give a finding on the same facts or vice versa? The Evidence Act be- ing exhaustive, the answer to this question depends upon the correct inter- pretation of the relevant provisions contained in that Act regardless of the fact whether the conclusion at which one ultimately arrives is in accordance with what was characterized before us during the arguments at the Bar to a com- monsense view of things or not. In construing a statute like the Evidence Act, where any fact intended to be established has to be in accordance with the scheme of the Act, found to be relevant under a provision contained in the Act before it can be allowed to be proved, any argument based on plausibility can have no effect. I must therefore ignore any other consideration and con- fine myself strictly to the provisions of the Act."

27. Thereafter, the Court referred to Sections 42 and 43 of the Evidence Act. After considering the said questions, the Court observed as under :-

"Under S. 40 of the Act, previous judgments are admissible in support of a plea of res judicata in civil cases or of autre fois acquit or autre fois convict in criminal cases. Judgments such as those whose relevancy we have been called upon to determine do not fall under this category. Nor can they fall un- der S. 41 of the Act which only makes a final judgment of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, conferring upon, taking away from or declaring any person to be entitled to any legal character or to be entitled to any specific thing absolutely, relevant when the existence of any such legal character or the title to any such thing is relevant. They do not also fall within the purview of S. 42 of the Act as they do not relate to matters of a public nature. Section 43 of the Act positively de- clares judgments other than those mentioned in Ss. 40, 41 and 42 to be irrel-

evant unless their existence is a fact in issue or is relevant under some other provision of the Act. It is quite clear that the mere existence of a judgment in the present case is not relevant. Learned counsel for the petitioner saw this difficulty and wishes to rely on S. 11 of the Act. But I cannot see how could that section have any application when the existence of that judgment as apart from any finding contained therein or even the finding itself could nei- ther be inconsistent with any fact in issue or a relevant fact. Nor could such judgments either by themselves or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact in any subse- quent proceedings highly probable or improbable. This section only refers to certain facts which are either themselves inconsistent with, or make the exis- tence or non-existence of, the fact in issue or a relevant fact highly probable or improbable and has no reference to opinions of certain persons in regard to those facts. It does not make such opinions to be relevant and judgments after all of whatever authority are nothing but opinions as to the existence or non-existence of certain facts. These opinions cannot be regarded to be such facts as would fall within the meaning of S. 11 of the Act unless the existence of these opinions is a fact in issue or a relevant fact which is of course a dif- ferent matter."

28. Finally, after considering the various decisions, the Court held thus :-

"There is no reason in my judgment as to why the decision of the civil Court particularly in an action in personam should be allowed to have that sanctity. There appears to be no sound reason for that view. To hold that when a party has been able to satisfy a civil Court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties, it would not be open to criminal Courts to go behind the findings of the civil Court is to place the latter without any valid reason in a much higher position than what it actually occupies in the system of administration in this country and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. The fact is that the issues in the two cases although based on the same facts (and strictly speaking even parties in the two proceedings) are not identical and there appears to be no sufficient rea- son for delaying the proceedings in the criminal Court, which, unhampered by the civil Court, is fully competent to decide the questions that arise before it for its decision and where in the nature of things there must be a speedy disposal."

29. In Kharkan and others v. The State of U.P. [(1964) 4 SCR 673], the Court observed thus :-

"............the earlier judgment can only be relevant if it fulfils the conditions laid down by the Indian Evidence Act in Sections 40 to 43. The earlier judgment is no doubt admissible to show the parties and the decision but it is not admis- sible for the purpose of relying upon the appreciation of evidence........."

30. What emerges from the aforesaid discussion is - (1) the previous judg- ment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300, Cr.P.C. makes provi- sion that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive ex- cept as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.

31. Further, the judgment, order or decree passed in a previous civil proceed- ing, if relevant, as provided under Sections 40 and 42 or other provisions of 25 the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for il- lustration, in a case of alleged trespass by 'A' on 'B's property, 'B' filed a suit for declaration of its title and to recover possession from 'A' and suit is de- creed. Thereafter, in a criminal prosecution by 'B' against 'A' for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes the title as well as pos- session of 'B' over the property. In such case, 'A' may be convicted for tres- pass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, first question which would require con- sideration is - whether judgment, order or decree is relevant? if relevant - its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case.

32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff's case (supra) would be binding, wherein it has been specifically held that no hard and fast rule can be laid down and that possibility of con- flicting decision in civil and criminal Courts is not a relevant consideration. The law envisages "such an eventuality when it expressly refrains from mak- ing the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages."

33. Hence, the observation made by this Court in V.M. Shah case [(1995) 5 SCC 767 : 1995 SCC (Cri) 1077] that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not cor- rect enunciation of law. Further, the general observations made in Karam Chand case [(1970) 3 SCC 694] are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case [AIR 1954 SC 397 : 1954 Cri LJ 1019] as well as Sections 40 to 43 of the Evidence Act.

34. In the present case, after remand by the High Court, civil proceedings as well as criminal proceedings are required to be decided on the evidence, which may be brought on record by the parties (emphasis supplied)

27. Later on, in Guru Granth Saheb Sthan Meerghat Vanaras v. Ved Prakash and Ors. reported in (2013) 7 SCC 622 while explaining and rely-

ing upon M.S.Sheriff (supra) and applying K.G. Premshankar (supra) the Hon'ble Supreme Court observed as under -

18. In light of the above legal position, it may be immediately observed that the High Court was not at all justified in staying the proceedings in the civil suit till the decision of criminal case. Firstly, because even if there is a possibility of conflicting decisions in the civil and criminal courts, such an eventuality cannot be taken as a relevant considera- tion. Secondly, in the facts of the present case there is no likelihood of any embarrassment to the defendants (Respondents 1 to 4 herein) as they had already filed the written statement in the civil suit and based on the pleadings of the parties the issues have been framed. In this view of the matter, the outcome and/or findings that may be arrived at by the civil court will not at all prejudice the defence(s) of Respondents 1 to 4 in the criminal proceedings.

(emphasis supplied)

28. In Siddharth N. Banthia v. Smita S. Banthia reported in 2017 SCC OnLine Bom 9338 : (2018) 1 Mah LJ 871 : (2018) 1 AIR Bom R 717 : AIR 2018 (NOC 426) 149 the Bombay High Court has observed as under -

9. In Asok Kumar Pal v. Smt. Sawan Pal, reported in (2008) 3 CALLT 437, learned Single Judge of the Calcutta High Court relying upon Kalyan Sundaram Cement Industries Ltd. (supra) refused to stay matrimonial proceedings on the ground of pendency of criminal proceedings arising out of similar set of facts. In the case before Calcutta High Court, divorce was applied for by the wife on the ground of cruelty. Similarly, cruelty was also the foundation in the complaint before the criminal court. However, applying the principle in Kalyan Sundaram Cement Industries Ltd. (supra), the Calcutta High Court held that mere fact that the two proceedings are founded on the same set of facts, is not sufficient for stay of the civil proceedings in all cases.

11. Even M.S. Sheriff (supra) the Supreme Court has held that civil and criminal matters can simultaneously proceed unless it is established that there is likelihood of embarrassment. Then again, there is no hard and fast rule in this regard. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to prosecution.

(emphasis supplied)

29. Then, in Satish Chander Ahuja v. Sneha Ahuja [AIR 2020 SC 5397] though the Hon'ble Supreme Court was seized with questions of law pertain-

ing to the interpretation and working of the Protection of Women from Do-

mestic Violence Act, 2005, however, after placing reliance upon M.S.Sheriff (supra) and K.G.Premshankar (supra) held as under-

157. From the above discussions, we arrive at following conclusions:-

(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of resi-

dence is not an embargo for initiating or continuing any civil proceed- ings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.

(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the mean- ing of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.

(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

(emphasis supplied)

30. In Avitel Post Studioz Limited and Ors. v. HSBC PI Hondings (Maurtitus) Limited and reported in AIR 2020 SC (Supp) 470 the Hon'ble Supreme Court reiterated that simultaneous civil and criminal proceedings are permissible. It was observed therein as under -

15. At this stage, it is necessary to deal with the broad statement of the law in Afcons (supra) and Booz Allen (supra). When Afcons (supra) refers in para- graph 27(iv) to "cases involving serious and specific allegations of fraud, fab- rication of documents, forgery, impersonation, coercion, etc.", this must now be understood in the sense laid down in Ayyasamy (supra) and Rashid Raza (supra). When it comes to paragraph 27(vi) in Afcons (supra), and paragraph 36(i) in Booz Allen (supra), namely, cases involving prosecution for criminal offences, it is also important to remember that the same set of facts may have civil as well as criminal consequences. Thus, in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87 : (AIR 2002 SC 3372) ["Premshanker"], this Court had to answer a reference made to it as follows:

"7. This Court on 9-11-1998, passed the following order: "Since we are of the view that the judgment of this Court in V.M. Shah v. State of Maharashtra [(1995) 5 SCC 767 : (AIR 1996 SC 339) : 1995 SCC (Cri) 1077] which has been relied upon by Mr Gopal Subramaniam, learned Senior Counsel ap- pearing for the petitioner, requires reconsideration, we refer this petition to a larger Bench for disposal. Let the record be placed before Hon. the Chief Justice for necessary orders."

The observations in V.M. Shah v. State of Maharashtra, (1995) 5 SCC 767 :

(AIR 1996 SC 339), which led to the reference, are set out in paragraph 11 as follows:

"11. In the background of the aforesaid facts, we would refer to the observa- tions made in V.M. Shah case [(1995) 5 SCC 767 : (AIR 1996 SC 339 ): 1995 SCC (Cri) 1077] which are as under: (SCC p. 770, para 11) "11. As seen that the civil court after full-dressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted re- versed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like Section 630. The mere pendency of the appeal does not have the effect of suspending the op- eration of the decree of the trial court and neither the finding of the civil court gets nor the decree becomes inoperative."

(emphasis in original) After referring to sections 40 to 43 of the Indian Evidence Act, 1872, and the judgment in M.S. Sheriff v. The State of Madras, 1954 SCR 1144 : (AIR 1954 SC 397), this Court held:

"32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff case [AIR 1954 SC 397 : 1954 Cri LJ 1019] would be binding, wherein it has been specifically held that no hard-and-fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration.

The law envisages "such an eventuality when it expressly refrains from mak- ing the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages".

33. Hence, the observation made by this Court in V.M. Shah case [(1995) 5 SCC 767 : (AIR 1996 SC 339) : 1995 SCC (Cri) 1077] that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observa- tions made in Karam Chand case [(1970) 3 SCC 694] : (AIR 1971 SC 1244) are in context of the facts of the case stated above. The Court was not re- quired to consider the earlier decision of the Constitution Bench in M.S. Sher- iff case [AIR 1954 SC 397 : 1954 Cri LJ 1019] as well as Sections 40 to 43 of the Evidence Act."

Likewise, in P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765 : (AIR 2008 SC 1884), this Court laid down the proposition:-

"11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the facts and circum- stances of each case. (See M.S. Sheriff v. State of Madras [AIR 1954 SC 397], Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370 : (AIR 2005 SC 2119) : 2005 SCC (Cri) 1101] and Institute of Chartered Accoun- tants of India v. Assn. of Chartered Certified Accountants [(2005) 12 SCC 226 : (2006) 1 SCC (Cri) 544].)"

In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), (2009) 5 SCC 528 : (AIR 2009 SC 3232) , it was held:

"24. If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidence brought before it and not in terms of the evidence brought in the criminal pro- ceeding. The question came up for consideration in K.G. Premshanker v. In- spector of Police [(2002) 8 SCC 87 : (AIR 2002 SC 3372) : 2003 SCC (Cri) 223] ......

25. It is, however, significant to notice that the decision of this Court in Karam Chand Ganga Prasad v. Union of India [(1970) 3 SCC 694] : (AIR 1971 SC 1244) , wherein it was categorically held that the decisions of the civil courts will be binding on the criminal courts but the converse is not true, was over-

ruled ...... Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. "

In Kishan Singh v. Gurpal Singh (2010) 8 SCC 775 : (AIR 2010 SC 3624), the Court referred to all the relevant judgments on the subject and ultimately held thus:

"13. In V.M. Shah v. State of Maharashtra [(1995) 5 SCC 767 : (AIR 1996 SC

339) : 1995 SCC (Cri) 1077] this Court has held as under: (SCC p. 770, para

11) "11. As seen that the civil court after full-dressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted re-

versed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like Section 630. The mere pendency of the appeal does not have the effect of suspending the op- eration of the decree of the trial court and neither the finding of the civil court gets disturbed nor the decree becomes inoperative."

14. The correctness of the aforesaid judgment in V.M. Shah [(1995) 5 SCC 767 : (AIR 1996 SC 339) : 1995 SCC (Cri) 1077] was doubted by this Court and the case was referred to a larger Bench in K.G. Premshanker v. Inspec- tor of Police [(2002) 8 SCC 87 : (AIR 2002 SC 3372) : 2003 SCC (Cri) 223 :

AIR 2002 SC 3372] . In the said case, the judgment in V.M. Shah [(1995) 5 SCC 767 : (AIR 1996 SC 339) : 1995 SCC (Cri) 1077] was not approved. While deciding the case, this Court placed reliance upon the judgment of the Privy Council in King Emperor v. Khwaja Nazir Ahmad [(1943-44) 71 IA 203 :

AIR 1945 PC 18] wherein it has been held as under: (IA p. 212) "... It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded [upon] the same or similar allegations. Moreover, the police investigation was stopped, and it cannot be said with certainty that no more information could be obtained. But even if it were not, it is the duty of a criminal court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding [upon] it."

(emphasis added)

15. In P. Swaroopa Rani v. M. Hari Narayana [(2008) 5 SCC 765 : (2008) 3 SCC (Cri) 79 : AIR 2008 SC 1884] this Court has held as under: (SCC pp.

769-71, paras 11, 13 and 18) "11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the facts and circum- stances of each case.

... xxx xxx xxx

13. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute.

... xxx xxx xxx

18. It goes without saying that the respondent shall be at liberty to take re- course to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case are permissible."

16. In Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370 : 2005 SCC (Cri) 1101] : (AIR 2005 SC 2119 ) this Court held as under: (SCC pp. 389-90, para 32) 30 "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory pro- vision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."

17. In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.) [(2009) 5 SCC 528 : (AIR 2009 SC 3232)] this Court considered all the earlier judg- ments on the issue and held that while deciding the case in Karam Chand [(1970) 3 SCC 694 : AIR 1971 SC 1244], this Court failed to take note of the Constitution Bench judgment in M.S. Sheriff [AIR 1954 SC 397 : 1954 Cri LJ 1019] and, therefore, it remains per incuriam and does not lay down the cor- rect law. A similar view has been reiterated 49 by this Court in Vishnu Dutt Sharma v. Daya Sapra [(2009) 13 SCC 729 : (2009 AIR SCW 5341) : (2010) 1 SCC (Cri) 1229] , wherein it has been held by this Court that the decision in Karam Chand [(1970) 3 SCC 694 : AIR 1971 SC 1244] stood overruled in K.G. Premshanker [(2002) 8 SCC 87 : 2003 SCC (Cri) 223 : AIR 2002 SC 3372].

18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evi- dence Act, 1872, dealing with the relevance of previous judgments in subse- quent cases may be taken into consideration. "

To complete the review of case law on the subject, we may finally refer to Guru Granth Saheb Sthan Meerghat Vanaras v. Ved Prakash, (2013) 7 SCC 622 : (AIR 2013 SC 2024), wherein this Court, after referring to the previous case law on the subject held as follows:

"17. In K.G. Premshanker [K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87 : (AIR 2002 SC 3372) : 2003 SCC (Cri) 223] the effect of the above provisions (Sections 40 to 43 of the Evidence Act) has been broadly noted thus: (SCC p. 97, para 30) "30. ... (4) if the criminal case and civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclu- sive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein."

Moreover, the judgment, order or decree passed in previous civil proceed- ings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.

18. In light of the above legal position, it may be immediately observed that the High Court was not at all justified in staying the proceedings in the civil 31 suit till the decision of criminal case. Firstly, because even if there is a possi- bility of conflicting decisions in the civil and criminal courts, such an eventual- ity cannot be taken as a relevant consideration. Secondly, in the facts of the present case there is no likelihood of any embarrassment to the defendants (Respondents 1 to 4 herein) as they had already filed the written statement in the civil suit and based on the pleadings of the parties the issues have been framed. In this view of the matter, the outcome and/or findings that may be arrived at by the civil court will not at all prejudice the defence(s) of Respon- dents 1 to 4 in the criminal proceedings."

16. In the light of the aforesaid judgments, paragraph 27(vi) of Afcons (supra) and paragraph 36(i) of Booz Allen (supra), must now be read subject to the rider that the same set of facts may lead to civil and criminal proceedings and if it is clear that a civil dispute involves questions of fraud, misrepresentation, etc. which can be the subject matter of such proceeding under section 17 of the Contract Act, and/or the tort of deceit, the mere fact that criminal pro- ceedings can or have been instituted in respect of the same subject- matter would not lead to the conclusion that a dispute which is otherwise arbitrable, ceases to be so.

(emphasis supplied)

31. Further, the standard of proof as required in Civil and Criminal cases is quite different and distant. In civil cases the plaintiff is required to prove his case up to the preponderance of probability, whereas in criminal case the prosecution has to establish the guilt of the accused beyond all reasonable doubts. In Iqbal Singh Marwah and anr. v. Meenakshi Marwah and anr.

(2005) 4 SCC 370 their lordships of the Hon'ble Supreme Court observed as under -

32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely differ-

ent. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.

(emphasis supplied) 32

32. Now coming to the case in hand, it is the case of the petitioner that a criminal case has been filed alleging impersonation and cheating etc. and same is pending consideration before the competent Criminal Court and till date same has not been registered. It is manifest from copy of plaint and ap-

plication filed under Section10 read with section 151 of CPC that the peti-

tioner has not pleaded the criminal case number, the Court before which the same is pending, the provisions of law under which same has been filed, the offences mentioned in it and parties to such criminal case but he has sought the stay of proceedings of civil suit. It is well settled that civil and criminal proceedings may run simultaneously and the same is permissible under the law. No law provides for staying of civil proceedings till the conclusion of criminal prosecution. Though in civil and criminal matters, public interest de-

mands that criminal matters be given precedence, however, whether or not to stay the criminal proceeding rests upon facts and circumstances of the each case and there is no straightjacket formula. Also the possibility of con-

flicting decisions in the civil and criminal courts is not a relevant considera-

tion. Further, there is no likelihood of embarrassment to the petitioner since the criminal proceeding is at its initial stage and same has not been regis-

tered yet. One more thing, which is to be looked into is that though the task of taking cognizance is solely the function of Magistrate, however, in the case in hand, even process has not been issued, and there is no averment or doc-

ument to form any opinion in favor of the petitioner, further, the Magistrate may or may not take cognizance of the offences therein, therefore, merely on the basis of apprehension, the petitioner can't seek stay of the proceedings of the Civil Suit pending before the court below.

33. In light of the above, the facts and circumstances of the case do not require any interference of this court since it is well settled that civil and crim-

inal proceedings can proceed simultaneously and whether civil or criminal proceedings shall be stayed, depends upon the facts and circumstances of each case.

34. Consequently, this court is left with no other option except to dismiss the instant petition leaving the parties to bear their own cost. Interim order, if, granted in any of the cases is hereby vacated.

35. With the aforesaid observation/s this petition stands disposed of.

Sd/-

(Rakesh Mohan Pandey) Judge

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