Non filing of written statement - decree passed - can be set aside on conditions = “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. 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 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.”= It is true that the time was granted to the defendants to file written statement initially before closing their right to file written statement, yet in our view, the Trial Court instead of closing their right to file written statement should have granted some time to the defendants subject to payment of reasonable amount of cost to the plaintiff to compensate the inconvenience caused to the plaintiff. The High Court was, therefore, right in imposing a cost of Rs.11,250/- on the defendants to be paid to the plaintiff as a pre-condition to file the written statement within the extended time granted by the High Court. The approach of the High Court, which resulted in remand of the case to the Trial Court for deciding the suit on merits after affording full opportunity to the defendants to contest the case and, at the same time, making it obligatory to pay cost of Rs.11,250/- to the plaintiff was, in our view, in tune with the aforementioned observations and did substantial justice to both the parties. On their entering appearance pursuant to service of fresh notice, the Trial Court will grant them some time to deposit the cost amount fixed by the High Court and also to file their written statement. Failure to deposit the cost within the time fixed so also the written statement would result in revival of the decree passed by the Trial Court against the defendants.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.868 OF 2011
Siddalingayya ….Appellant(s)
VERSUS
Gurulingappa & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the plaintiff against the
final judgment and order dated 24.06.2005 passed
by the High Court of Karnataka at Bangalore in RSA
No.220 of 2003 whereby the High Court allowed the
second appeal filed by the respondents herein and
while setting aside the judgment/decree of the two
Courts below remanded the case to the Trial Court
for deciding the civil suit afresh on merits after
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affording an opportunity to the
respondents(defendants) to file written statement.
2) The Controversy involved in the appeal lies in a
narrow compass. Few facts set out hereinbelow
would make the controversy clear.
3) The appellant is the plaintiff whereas the
respondents are the defendants in the suit out of
which this appeal arises.
4) The appellant filed a civil suit being O.S. 286
of 1993 against the respondents (defendants) in the
Court of Munsiff - Indi (Bijapur) for recovery of
Rs.45,000/- by way of damages. According to the
appellant, the respondents illegally demolished his
construction and thereby caused monetary loss and
injury to him and hence the suit to recover the
monetary loss suffered by him.
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5) The respondents entered appearance but
failed to file their written statement despite time
granted by the Court.
6) The Trial Court, however, declined to grant
further time to file written statement to the
respondents though asked for and accordingly
proceeded to record evidence of the appellant
(plaintiff) and by judgment/decree dated
24.02.1997, decreed the suit of the
appellant(plaintiff) for Rs.45,000/- against the
respondents(defendants).
7) The defendants, felt aggrieved, filed first appeal
before the Principal Civil Judge at Bijapur being
R.A. No.103 of 1997. By judgment dated
04.12.2002, the Appellate Court dismissed the
appeal and affirmed the judgment/decree of the
Trial Court. Felt aggrieved, the defendants filed
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second appeal being R.S.A. No.220 of 2003 before
the High Court.
8) By impugned judgment, the High Court
allowed the second appeal and while setting aside
the judgment/decree of the two Courts below
remanded the case to the Trial Court for deciding
the civil suit afresh on merits after affording an
opportunity to the respondents (defendants) to file
written statement.
9) It was held that the Trial Court did not grant
sufficient opportunity to the respondents to file
written statement, due to which they had to suffer
the decree without any contest causing prejudice in
defending the suit. The High Court, however,
imposed a cost of Rs.11,000/- on the defendants to
be paid to the plaintiff as a pre-condition for filing
the written statement within the extended time
granted.
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10) It is against this order of the High Court, the
plaintiff has felt aggrieved and filed this appeal by
way of special leave before this Court.
11) Mr. Rajesh Mahale, learned counsel for the
appellant (plaintiff). None appeared for the
respondents though served.
12) Having heard the learned counsel for the
appellant and on perusal of the record of the case,
we are not inclined to interfere in the remand order
of the High Court impugned in this appeal.
13) This case reminds us of the apt observations of
a great Judge of this Court (Vivian Bose, J.). His
Lordship, speaking for the Bench, in his inimitable
style of writing said in Sangram Singh vs. Election
Tribunal Kotah & Anr. (AIR 1955 SC 425) 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
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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. 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 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.”
14) Keeping the aforementioned observations in
mind and examining the facts of the case at hand,
we are of the considered opinion that the High
Court made no mistake in allowing the respondents’
appeal and remanding the suit to the Trial Court for
fresh trial on merits after affording an opportunity
to the respondents (defendants) to file their written
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statement to enable them to contest the suit on
merits.
15) It is true that the time was granted to the
defendants to file written statement initially before
closing their right to file written statement, yet in
our view, the Trial Court instead of closing their
right to file written statement should have granted
some time to the defendants subject to payment of
reasonable amount of cost to the plaintiff to
compensate the inconvenience caused to the
plaintiff. The High Court was, therefore, right in
imposing a cost of Rs.11,250/- on the defendants to
be paid to the plaintiff as a pre-condition to file the
written statement within the extended time granted
by the High Court.
16) In our view, here comes the application of
observations of Vivian Bose J. when His Lordship
said "Too technical a construction of a section that
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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 decision should not be reached behind their
back, 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."
17) Having observed this, His Lordship cautioned
"of course there must be exceptions too and where
they are clearly defined they must be given effect to”
and finally His Lordship concluded observing "But
taken by and large, and subject to that proviso, our
laws of procedure should be construed, wherever
8
that is reasonably possible, in the light of that
principle."
18) The approach of the High Court, which
resulted in remand of the case to the Trial Court for
deciding the suit on merits after affording full
opportunity to the defendants to contest the case
and, at the same time, making it obligatory to pay
cost of Rs.11,250/- to the plaintiff was, in our view,
in tune with the aforementioned observations and
did substantial justice to both the parties.
19) In view of foregoing discussion, we concur with
the reasoning and the conclusion arrived at by the
High Court and find no merit in the appeal. It is
accordingly dismissed.
20) We, however, find that none appeared for the
respondents (defendants) in this appeal though
served. The Trial Court will now take up the suit to
its file and will issue notice of suit proceedings to
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the respondents/defendants for their appearance in
the suit.
21) On their entering appearance pursuant to
service of fresh notice, the Trial Court will grant
them some time to deposit the cost amount fixed by
the High Court and also to file their written
statement.
22) Failure to deposit the cost within the time fixed
so also the written statement would result in revival
of the decree passed by the Trial Court against the
defendants.
23) In the event of defendants depositing the cost
and filing written statement as directed, the Trial
Court will frame issues and allow the parties to
adduce their evidence and cross-examine the
witnesses, who were already examined and will also
allow them to adduce additional evidence both oral
and documentary.
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24) Let the trial in the suit be over within six
months from the date of appearance of the parties.
The record of the case be sent back forthwith to the
Trial Court, if requisitioned here.
25) The appellant (plaintiff) to appear before the
Trial Court on 3.10.2017 with the copy of this order
to enable the Trial Court to proceed in the trial of
the suit, as directed above.
………...................................J.
[R.K. AGRAWAL]
…...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 05, 2017
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