1 (1) RAMESH KUMAR VS. CHANDU LAL & ANR. (D.B.C.SPECIAL APPEAL NO.1132/08) (2) RAMESH KUMAR VS. CHANDU LAL & ANR. (D.B.C.SPECIAL APPEAL NO.1133/08) (3) RAMESH KUMAR VS. CHANDU LAL & ANR. (D.B.C.SPECIAL APPEAL NO.1134/08) Date of Judgment :- 14.1.2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr.Rajendra Charan, for the appellant. Mr.G.J.Gupta, for the respondents. BY THE COURT:(PER HON'BLE MR.SANGEET LODHA,J.) Reportable 1. These three appeals arise out of the similar orders dated 6.8.08 passed by the learned Single Judge in writ petitions Nos. 3944/08,3945/08 and 3946/08. By the orders under appeal, the aforesaid writ petitions preferred by the writ petitioner, respondent no.1 herein assailing the validity of orders dated 24.5.98 passed in Rent Petition No. 63/07 and 58/07 and order dated 28.5.98 passed in Rent Petition No.59/07 by the Rent tribunal, Sri Ganganagar ( in short “the tribunal” hereinafter) have been allowed and the aforesaid orders impugned in the writ petitions passed by the learned tribunal taking the reply to the petitions filed on behalf of the appellant-tenant on record have been set aside. 2. Since the questions involved in all these three appeals arising from the aforesaid orders passed by the learned Single 2 Judge are identical, therefore, the same were heard together and are being disposed of by a common order. For the convenience , the facts of D.B.Civil Special Appeal No.1132/08 arising from writ petition No. 3946/08 are being taken into consideration as a lead case. 3. The relevant facts in nutshell are that the respondent- landlord, preferred a petition against the appellant-tenant under the provisions of Rajasthan Rent Control Act, 2001( in short “the Act oaf 2001” hereinafter) for his eviction from the suit premises, on the ground of reasonable bona fide necessity. A notice issued by the tribunal was served upon the appellant on 17.11.07. In pursuance thereof, the counsel for the appellant-tenant appeared before the learned tribunal on the next date fixed in the matter i.e. 17.12.07 and filed the power on his behalf. From the perusal of order sheets placed on record as Annexure 5 , it is revealed that on the said date , the Presiding Officer was on leave and accordingly, the matter was adjourned to 27.2.08. A reply to the petition was filed on behalf of the appellant-tenant before the learned tribunal on 27.2.08 and the matter was adjourned to 18.3.08 for evidence . On the next date of hearing, an application under Order VIII Rule 9 of Civil Procedure Code, 1908 ( in short “CPC” hereinafter) seeking leave to file rejoinder was preferred on behalf of the respondent no.1. The rejoinder was also filed alongwith the said application. At the same time, 3 by way of yet another application, the respondent no.1 objected the reply to the petition filed on behalf of the appellant-tenant after expiry of period of 45 days being taken on record. 4. After hearing both the parties and due consideration of the facts and circumstances of the case, the learned tribunal opined that keeping in view the principles of natural justice and to subserve the cause of justice, the reply to the petition filed on behalf of the appellant- tenant deserves to be taken on record. Accordingly, the application preferred by the respondent no. 1 , objecting the reply filed on behalf of the appellant-tenant being taken on record was rejected by the learned tribunal vide order dated 28.5.08. By the self same order, the application preferred by the respondent no. 1 seeking leave to file rejoinder was also rejected. In these circumstances, the validity of the order passed by the learned tribunal in each case separately was assailed by the respondent no. 1 herein by way of writ petitions before this Court as detailed supra. 5. It was contended on behalf of the respondent no.1 before the learned Single Judge that in view of the provisions of sub- Section (3)of Section 15 of the Act of 2001 , the reply filed by the appellant-tenant after expiry of period of 45 days from the date of the service of the notice could not have been taken on record by the learned tribunal . Per contra, it was contended on behalf of the appellant-tenant that due to ignorance of law on 4 the part of the counsel representing the tenant, the reply could not be filed within the period of 45 days therefore, on the facts and in the circumstances , the learned tribunal was justified in taking the reply on record. 6. After due consideration of the rival submissions, the learned Single Judge arrived at the finding that the Act of 2001 is special enactment providing the procedure for eviction of the tenant from the rented premises and it provides the detailed procedure in this regard, therefore, the provisions of Section 15 (3) of the Act of 2001 which provides that the tenant may submit his reply , affidavit and documents after serving the copies of the same to the petitioner within a period not exceeding 45 days from the date of the service of the notice is mandatory in nature. That apart, the learned Single Judge found that the appellant-tenant has not explained the delay much less satisfactorily for filing the reply beyond the period provided under Section 15(3) of the Act of 2001 therefore, the learned tribunal has erred in taking the reply filed on his behalf on record. Accordingly, by orders under appeal, the orders passed by the learned tribunal taking the reply filed on behalf of appellant-tenant on record stand set aside .Obviously,in view of setting aside of the orders passed by the learned tribunal taking the reply on record , the learned Single Judge has observed that the questions of taking the rejoinder on record does not arise. 5 7. It is contended by the learned counsel for the appellant that the learned Single Judge has seriously erred in holding that the provision of Section 15(3) of the Act of 2001 providing for filing of the reply by the tenant within a period not exceeding 45 days from the date of service of the notice is mandatory. The learned counsel submitted that the law of procedure are grounded on principles of natural justice which requires that the men should not be condemned unheard therefore, the provisions of Section 15(3) providing for filing of the reply within a period of 45 days cannot be construed strictly and the same have to be treated directory in nature. The learned counsel submitted that Order VIII Rule 1 of CPC providing for filing of the written statement by the defendants within 30 days of service of the notice and the proviso thereto providing the outer limit of 90 days have been held to be directory in nature by the Hon'ble Supreme Court therefore, for the parity of the reasons , the provisions of sub-section (3) of Section 15 of the Act of 2001 should also be held to be directory in nature and not mandatory. In support of his contentions as aforesaid, the learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matter of “Sangram Singh vs. Election tribunal, Kota”, AIR 1955 SC 425, “Kailash vs. Nanhku & Ors.”, (2005) 4 SCC 480 , “Salem Advocate Bar Association ,Tamilnadu vs. Union of India”, (2005) 6 SCC, 344 and “R.N.Jadi & Brothers vs. Subhash 6 Chandra”,(2007) 6 SCC, 420. Accordingly, it is submitted by the learned counsel that on the facts and in the circumstances of the case, the learned Single Judge has erred in interfering with the orders impugned in the writ petitions passed by the learned tribunal, in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India . 8. Per contra, the learned counsel appearing on behalf of the respondent no. 1 while reiterating the contentions raised before the learned Single Judge submitted that the Act of 2001 has been enacted by the state legislature with an object that the lis between the landlord and tenant should be decided expeditiously therefore, apart from the time fixed for filing of the reply, it also provides for the time frame for different stages of the proceedings. The learned counsel submitted that keeping in view the object behind the enactment, the learned Single Judge has committed no error in holding that the provisions of Section 15 (3) are mandatory in nature. It is further submitted by the learned counsel that the delay in filing the reply having not been explained by the appellant-tenant satisfactorily, the learned tribunal was not justified in taking the reply on record. The learned counsel submitted that if this court arrives at the conclusion that the provisions of Section 15(3) are directory and not mandatory and accordingly, if the reply filed on behalf of the appellant-tenant is ordered to be taken on record then, the 7 orders impugned in the writ petitions passed by the learned tribunal refusing to take rejoinder on record deserves to be set aside. The learned counsel urged that as per sub-section(4) of Section 15 , the petitioner in the petition filed before the tribunal is entitled to file rejoinder after serving the copy to the opposite party within a period of 30 days from the date of service of the reply therefore, as a matter of fact, the respondent no.1 was not even required to seek permission of the court to file rejoinder. Accordingly, it is submitted by the learned counsel that on the facts and in the circumstances of the case, if the reply of the appellant-tenant is taken on record then, the rejoinder filed on behalf of the writ petitioner-landlord cannot be refused to be taken on record. 9. We have considered the rival submissions and perused the material on record. 10. The precise question which arises for consideration of this Court in these appeals for decision is as to whether the outer limit of 45 days as prescribed by sub-section (3) of Section 15 of the Act of 2001 for filing reply by the tenant to the petition of eviction filed by the landlord is mandatory or directory in nature? 11. Section 15 of the Act of 2001 deals with the procedure for eviction of tenant. Since the controversy involved in these appeals rolls round the provisions of sub-section (3) of Section 15 of the Act of 2001, it will be beneficial to reproduce the same, 8 which read as under:- “15(3) The tenant may submit his reply, affidavits and documents after serving the copies of the same to the petitioner, within a period not exceeding forty five days from the date of service of notice.” 12. According to the learned counsel for the appellant the provisions of Section 15(3) of the Act of 2001 are pari materia to the provisions of Order VIII Rule 1 of CPC which read as under:- "1. Written statement- The defendant shall, within thirty days from the date of 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." 13. A comparative reading of the provisions of Section 15(3)of the Act of 2001 and Order VIII Rule 1 of CPC reveals that both the provisions relate to the domain of procedural law and casts obligation on the defendant/respondent to file the written statement/reply within the specified period from the date of service of the summon/notice. Section 15(3) of the Act of 2001 provides that the tenant "may" submit his reply etc. within a period "not exceeding 45 days" from the date of service of notice, whereas as per Order VIII Rule 1 of CPC , the defendant "shall" present the written statement of his defence "within 30 days" from the date of service of summon and as per proviso thereto , he may be permitted to file the same even after expiry 9 of period of 30 days for the reasons to be recorded by the court in writing but not later than 90 days from the date of service of summon. Thus, essentially both the provisions provide an outer time limit for filing the written statement/reply . Under Order VIII Rule 1 , discretion is vested with the court to allow filing of the written statement beyond the specified period of 30 days but, under the provisions of Section 15(3) , no such specific power is conferred upon the tribunal. But, the fact remains that none of these provision restrict the power of the court/tribunal to grant further time for filing the written statement/reply and to take the same on record in the interest of justice even after the expiry time limit prescribed. Likewise, both the provisions do not provide for the consequences to follow if the time schedule prescribed is not adhered to . Thus, it can be safely concluded that the provisions of Section 15(3) of the Act of 2001 is in substance pari materia to the provisions of Order VIII Rule 1 of CPC. 14. Admittedly, the provisions of Order VIII Rule 1 of CPC has been held to be directory in character by the Hon'ble Supreme Court in the various decisions cited by the learned counsel appearing on behalf of the appellant. Therefore, at this stage, we considered it appropriate to refer the decisions of Hon'ble Supreme Court relied upon by the learned counsel appearing on behalf of the appellant. 10 15. In Sangram Singh's case (supra) , the Hon'ble Supreme Court while dealing with the question of interpretation of the procedural law, observed as under:- “ 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 prople 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. 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 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 procedure should be construed, wherever that is reasonably possible, in the light of that principle.” 16. In Kailash vs. Nanhku (supra), the Hon'ble Supreme Court while dealing with the question as to whether the provisions of Order VIII Rule 1 providing for outer limit of 90 days for filing the written statement is mandatory or directory, observed as under:- “30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specially provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the 11 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. 33. As stated earlier, Order 8 Rule 1 is a provision contained in CPC and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order 8 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 appointed 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 consequences follow. 45. However, no straight jacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order 8 Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law. 46. We sum up and briefly state our conclusions as under:- ..... xxxx .........xxx ..............xxxx (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify and penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away. 12 (v) Though Order 8 Rule 1 CPC 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 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 the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, however, 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 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.”(emphasis added) 17. In Salem Advocate Bar Association's case, the Hon'ble Supreme Court held as under:- “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 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. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat 13 justice.” 18. Similarly, in R.N.Jadi's case (supra), the Hon'ble Apex Court while following the decision in Salem Advocate Bar Association's case (supra) and clarifying the decision of Kailash vs. Nanhku's case , held as under: “15. It is also to be noted that though the power of the court under the proviso appended to Rule 1 of Order 8 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 for 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.” (emphasis added) 19. Thus, it is settled position of law that the law of procedure should not ordinarily be construed as mandatory inasmuch as, the object of providing procedure is to advance the cause of justice and not to defeat it. If a strict adherence to the procedure prescribed results in inconvenience or injustice then, the provision providing for such procedure has to be construed liberally so as to meet the ends of justice. As noticed above, the provision contained in sub-section (3) of Section 15 of the Act of 2001 is in substance pari materia to the provisions of Order VIII Rule 1 of CPC which has been held to be directory by the Hon'ble Supreme Court in the decisions referred supra. Thus, keeping in 14 view the law laid down by the Hon'ble Supreme Court as aforesaid , in our considered opinion, for the parity of the reasons, the provisions of Section 15 (3) also deserves to be held directory in character and not mandatory. 20. It is true that the Act of 2001 prescribes the time frame for different stages of the proceedings so as to secure an early and expeditious disposal of the lis between the landlord and tenant but then, it is fundamental principle of natural justice that the defence of a party to the proceedings before all courts ,judicial bodies and constitutional authorities must always be fairly heard. Moreover, the procedure provided for the trial of the suit and miscellaneous proceedings for finding out the truth and impart the justice between the parties cannot be construed in a manner which results in cause of justice being defeated. However, the delaying tactics adopted by the erring party to the proceedings cannot be countenanced by the court and as laid down by the Hon'ble Supreme Court , time beyond the period specified cannot be extended by the court as a matter of course and the power to extend can be exercised by the court by way of an exception on the sufficient cause being shown by the party in default. But then, on the extension being granted, the other party has to be compensated by way of payment of cost for the delay and inconvenience caused. 21. Adverting to the facts of the present case, it is pertinent to 15 note that the notice issued by the tribunal was served upon the appellant-tenant on 17.11.08 for the next date of hearing i.e. 17.12.08. The power was filed on behalf of the appellant-tenant before the learned tribunal on 17.12.08 itself , however, on that day, the matter was adjourned on account of non availability of the Presiding Officer. Admittedly, on the next date of hearing i.e. 27.2.08, the reply was filed by the appellant-tenant which was taken on record and the matter was posted for evidence. The filing of the reply beyond the period of 45 days