Procedural law should be construed liberally

This article deals with the liberal construction of procedural law by the Indian Courts. In law, time has been prescribed for doing a time in a prescribed period. There is Limitation Act,  which prescribes the time schedule for doing a particular act within a particular span of time. Whenever any Act is enacted by the Legislature, normally rules are also prescribes within the ambit of the Act. The Rules prescribed within the ambit of the Act, prescribes the procedure, how procedure is to be followed.

This question came up before the Hon’ble Supreme Court of India and before the Hon’ble High Court many times. There has been many cases where the Act or Rules made there under prescribes the time for doing an act within a particular time and the party failed to do so. In such cases the Hon’ble Supreme Court of India including the Hon’ble High Court of Delhi has laid down the law that the procedural law are required to be treated liberally. Here are the details of few of such Judgments:

In AIR 1976 SC 1177: The State of Punjab and Anr Vs Shamlal Murari and Anr, the Hon’ble Supreme Court of India, while dealing with the scope of the processual law, observedWe must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely Observed  that   procedural   prescriptions   are    the    hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice.

The Hon’ble Supreme Court of India, in its Judgement , reported as AIR 2005 SC 3304: Smt. Rani Kusum Vs Smt. Kanchan Devi, reiterated the afore mentioned stand asProcessual 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. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII, C.P.C. 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 implying 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”.

The Hon’ble Supreme Court of India , in its Judgment AIR 1987 SC 1353: Collector, Land Acquisition, Anantnag and Anr Vs Mst. Katiji and Ors, observed that substantial justice has to be preferred upon the procedural technicalities. The Hon’ble Supreme Court of India returned the finding as under 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 because of a non-deliberate delay.”

Conflict between the procedural law and the substantial law has been resolved by the Hon’ble Supreme Court of India in its Judgement reported as AIR 2008 SC 2099, Zolba Vs Keshao and Ors ,as under” 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. Construction 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 AIR 2005 SC 3353: Salem Advocate Bar Association, Tamil Nadu v. Union of India: it has been clearly held that “the provisions including the proviso to Order 8 Rule 1 of the CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted even after the expiry of 90 days from the date of service of summons”.

While discussing with the power of Controller of Patent, the Hon’ble Supreme Court of India, in its Judgment AIR 2012 SC 285: Polydrug Laboratories P. Ltd. Vs Controller of Patents and Ors, the Hon’ble Supreme Court of India held “According to a plain reading of Rule 138, it is clear that the Controller may extend the time for filing evidence for a period of one month. Learned counsel for the Appellant submits that the Assistant Controller of Patents and Designs has not considered the said Rule 138 of the Patent Rules, 2003 in its proper perspective. He further submits that he has filed the evidence but the same has not been taken on record. We are of the considered view that according to Rule 138, the Controller has the power to extend the time for a period of one month.”

The Hon’ble Supreme Court of India discussed the provisions of the Limitation Act in the Judgment AIR 1998 SC 3222: N. Balakrishnan Vs M. Krishnamurthy and returned the finding as follows ” Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”

Similarly in its Judgments , reported as 2009 (41) PTC 474 (Del): Liberty Footwear Company Vs Force Footwear Company and Ors, the Hon’ble High Court of Delhi observed that “Rules  of procedure, it is well settled, are handmaid of justice and are normally treated as directory and not mandatory unless legislative intent is opposite. Most of the procedural rules are enacted with the object to ensure expeditious trial and do not normally impose a prohibition and bar on the power of the court/tribunal to extend time. A prohibition or bar requires a penal consequence which should flow from non-compliance of a procedural provision. In Kailash Vs Nankhu AIR 2005 SC 2441 and Salem Advocate Bar Association, Tamilnadu Vs Union of India AIR 2005 SC 3353 it has been held that there may be many cases where non-grant of extension would amount to failure of justice. The object of procedural rules is not to promote failure of justice. Procedural rules deserve to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend the time.”

The Hon’ble High Court of Delhi, while discussing the power of IPAB to condone the delay in filing the Appeal, in its Judgment 2012 (51) PTC 611 (Del): CYDMAX (India) Pharma Pvt. Ltd. Vs M/s Gilead Sciences INC. & Ors, observed as under      ” Section 92 of the Trade Marks Act, 1999 states that Appellate Board shall not be bound by the procedure laid down in the CPC but shall be guided by the principles of natural justice. The learned Single Judge observed that though rules had been framed under the Patents Act in the year 2003, these rules were silent with regard to the procedure for preferring an appeal under the Patents Act presumably because of the reason that acting under Section 92 of the Trade Marks Act, the IPAB had framed Procedure Rules, 2003 which deal with procedure for preferring an appeal before the Appellate Board. Rule 14 of these rules states that if the Appellate Board is satisfied that there is sufficient cause for extending the time for doing any act prescribed under the rules (not being a time expressly provided for in the Trade Marks Act, 1999), it may, subject to such conditions as may think fit to impose, extend the time and inform the parties accordingly. This power is exercised upon making of an application to the Appellate Board in the prescribed form. The procedure for preferring an appeal under the aforesaid rules is prescribed from Rule 3 onwards. On this basis, the learned Single Judge held that the Appellate Board is empowered to extend the time for preferring an appeal.”

After the afore mentioned discussion, it is apparent that the procedural law meant to add to the substantial right of the parties. When the substantial right and the procedural law are pitted against each other, in that case, substantial justice of the parties has to be preferred. However, this does not mean that a party is allowed to drag the matter on account of liberal construction of the procedural law. The procedural laws are made in order to smooth functioning of the cases and not to defeat the substantial right of the parties.  The parties, who wants the liberal treatment of the procedural law, must explain the reason for condoning in delay in doing any act, prescribed by the law. If the party is able to give sufficient reasons for condoning the delay for doing any act, prescribed by the law, in that case, the Court has inherent power to condone the delay and treat the procedural law liberally. This principle is not only applicable to the Court of Justice, but also the Quasi Judicial authorities and Tribunal also.

 

Published in Civil Law
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