Himachal Pradesh High Court
Neelam Kumari vs Yogender Singh And Others on 19 June, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 14 of 2015.
Date of decision : 19th June, 2015 ____________________________________________________________ Neelam Kumari . ...Petitioner Versus Yogender Singh and others .....Respondents.
Coram r The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? Yes For the Petitioner : Mr. Bimal Gupta, Advocate. For the Respondents : Mr. R. S. Gautam, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge (Oral).
This petition under Article 227 of the Constitution of India is directed against the order passed by the learned trial Court on 31.10.2014 whereby the applications filed by the petitioner under Order XVI read with Section 151 CPC and another application under Section 151 CPC came to be dismissed.
2. This is unfortunate family dispute. In view of the nature of order I propose to pass, the facts in detail, need not be stated.
3. The defendant No.1 had moved two applications. In the application under Section 151 CPC the defendant had sought the permission to lead additional evidence by way of oral evidence of Rishi Thakur S/o late Sh. Sukhdev Singh. It was alleged that in the summons ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 18:24:39 :::HCHP 2 issued to the marginal witnesses of the Will dated 26.01.1969 which .
has been challenged by the plaintiff, it had been reported that he had died about 16 years back and, therefore, it was necessary to examine his son Rishi Thakur, who could depose about the signature of his late father.
4. Another application was filed by the petitioner under Order XVI read with Section 151 CPC for allowing the defendant/petitioner to examine defendant No.6 in evidence. It was alleged that defendant No.6 is the real brother of the plaintiff and other defendants and son of defendant No.2, who had not contested the suit nor stepped into the witness box, but now he was available and ready to depose regarding the signatures of the marginal witnesses as also his father who was executant of the Will.
5. The learned trial Court vide common order rejected these applications mainly influenced by the fact that issues in the case had been struck on 17.3.2011 and after recording the evidence the case had been fixed for final arguments since 16.4.2013.
6. I have heard learned counsel for the parties and have gone through the records of the case carefully.
7. It cannot be disputed that there has been inordinate delay on the part of the petitioner in filing the aforesaid applications. But can the rights of the petitioner be defeated only on account of there being delay in filing of the applications?
8. The proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ::: Downloaded on - 15/04/2017 18:24:39 :::HCHP 3 ex debito justitiae, where otherwise it would be wholly inequitable, is by .
now well founded.
9. It must be remembered that the Courts are respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so and further taking into consideration the fact that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done.
10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.
11. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.
12. 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.
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13. It is useful to quote the oft-quoted passage of Lord .
Penzance in 1879 (4) AC 504:
"Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve."
14. In the matter of Sangram Singh vs. Election Tribunal, Kotah reported in AIR 1955, S.C. 425, the Hon'ble Apex Court has observed as under:
"Now 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 (provide always that justice is done to both sides) less 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 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 that they should not be precluded from participating in them. Of course there must be expectations 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 procedure should be construed, wherever that is reasonably possible in the light of that principle."
15. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See: Blyth v. Blyth (1966 (1) All E.R. 524 (HL).
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16. In Balwant Singh Bhagwan Singh and another vs. Firm .
Raj Singh Baldev Kishen reported in AIR 1969 Punjab and Haryana 197 it was held that:
"Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner, which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness."
17. In the matter of State of Gujarat vs. Ramprakash P. Puri, reported in 1970 (2) SCR 875, the Hon'ble Apex Court has held that:
"Procedure has been described to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause."
18. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774).
19. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Another vs. Rajesh and others AIR 1998 SC 1827).
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20. The Hon'ble Supreme Court in (2007) 9 Scale 202 (R.N. .
Jadi & Brothers vs. Subhash Chandra), considered the procedural law vis-à-vis substantive law and observed as under:
"9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice."
21. Procedure is only handmaid of Justice:- All the rules of procedure are the handmaids of justice. Any interpretation which eludes substantive justice is not to be followed. Observing that procedure law is not to be a tyrant, but a servant, in Sambhaji and others vs. Gangabai and others (2008) 17 SCC 117, the Hon'ble Supreme Court held as under:
"6.(14) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."
22. In 2011 (1) Scale 469 Rajendra Prasad Gupta vs. Prakash Chandra Mishra and others, the issue before the Hon'ble Supreme Court was as to whether an application will be maintainable before the trial Court to withdraw the application filed earlier for withdrawal of the suit. The trial Court dismissed the application as not maintainable. The High Court held that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn ::: Downloaded on - 15/04/2017 18:24:39 :::HCHP 7 even without there being any order on the withdrawal application and .
as such another application at a later point of time to withdraw the suit was not maintainable. When the matter was taken up in appeal, the Hon'ble Supreme Court disagreed with the views expressed by the High Court. While allowing the appeal, the Hon'ble Supreme Court observed thus:
"5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted."
23. The Hon'ble Supreme Court in 2011 (6) Scale 1 Mahadev Govind Gharge and others vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, reiterated the legal position regarding procedural law and observed:
"28. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold....."
24. In view of the aforesaid exposition of law, it can safely be concluded that the learned trial Court erred in dismissing the applications solely on the ground of delay without taking into consideration the humanist rule that procedure should be the handmaid, not the mistress of legal justice and it always vested with the residuary power to act ex debito justitiae where otherwise it would be wholly inequitable. Apart from that, learned trial Court has completely misconstrued the provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. ::: Downloaded on - 15/04/2017 18:24:39 :::HCHP 8
25. It has been established on record that the marginal .
witness Sukhdev Singh had died, however, his son Rishi Thakur was very much alive. Similarly, once the defendant No.6, who is none other than the brother of the plaintiff and other defendants was sought to be examined as a witness, I see no reason how the learned trial Court could have invoked the provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act to refuse such permission.
26. Learned trial Court appears to be oblivious to the fact that here was a case inter se the family members and, therefore, was required to be dealt with by exhibiting more compassion and sympathy and by not stretching the rigors of law to the breaking point.
27. Having said so, I find merit in this petition and the order dated 31.10.2014 passed by learned Civil Judge ((Jr. Division), Court No.2, Paonta Sahib, District Sirmaur, is set-aside. But at the same time, this Court cannot ignore the fact that there has been a considerable delay on the part of the petitioner in moving the aforesaid applications. Accordingly, the present petition is allowed, but subject to costs of `20,000/- in each, i.e. ` 40,000/-, which needless to say, shall be paid to the opposite party. The parties through their counsel are directed to appear before the learned trial Court on 23.7.2015. The Registry is directed to send the record forthwith so as to reach well before the date fixed.
28. Interim order dated 08.01.2015 is vacated. The pending application also stands disposed of.
June 19, 2015 (Tarlok Singh Chauhan)
(GR) Judge
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