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Whether Procedural laws should be construed like a penal provision?



CIVIL APPEAL No. 2601 OF 2018
(Arising out of S.L.P.(C) No.35629 of 2017)

Pralhad Shankarrao Tajale & Ors. ….Appellant(s)


State of Maharashtra through
its Secretary (Revenue) & Anr. …Respondent(s)

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is directed against the final judgment and order dated 18.07.2017 passed by the High Court of Judicature at Bombay in Civil Application No.120 of 2016 in Rejected Case No.149 of 2016 in Rejected Case No.148 of 2016 whereby Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2018.03.08 the Single Judge of the High Court dismissed the 17:14:10 IST Reason: appellants’ application on the ground of delay.

3) In order to appreciate the short question involved in the appeal, few facts need mention infra.

4) The appellants herein were the Writ/Review Petitioners before the High Court in the proceedings out of which this appeal arises. On 28.08.2012, the appellants filed a petition being Writ Petition No.8516 of 2012 before the High Court of Bombay questioning therein the legality and correctness of the order dated 14.05.2012 passed by the State Minister for Revenue (MH). It was in relation to a certain land dispute whereby the appellants’ revision application was dismissed.

5) On 27.11.2012, the Single Judge of the High Court dismissed the appellants’ writ petition. The appellants felt aggrieved and filed intra court appeal (L.P.A.No.33 of 2013) before the Division Bench.

6) By order dated 22.03.2014, the Division Bench permitted the appellants to withdraw the intra court appeal and granted them liberty to file review petition before the Single Judge against the order by which their writ petition was dismissed.
7) The appellants accordingly filed review application (Review Application No.3330/2015 in W.P.No.8516/2012) on 17.04.2014. The appellants also filed application for condonation of delay in filing the Review application.

8) According to the Registry of the High Court, the Review Application had some defects in its filing. The appellants were, therefore, directed to cure the defects so that the Review Application could be listed for orders before the appropriate Bench.

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9) As the appellants did not cure the defects pointed out by the Registry of the High Court, the Review Application was listed before the Registrar (Judicial-1) on 19.10.2015 for passing appropriate orders in filing the Review Application.

10) The Registrar, by his order dated 19.10.2015 further granted four weeks’ time to the appellants to cure the defects and at the same time directed that failing to cure the defects will result in refusing the registration of the Review Application, i.e., it will result in rejection of the Review application.
11) Felt aggrieved by the order dated 19.10.2015 passed by the Registrar, the appellants filed an application being Civil Application No.120 of 2016 and prayed therein for setting aside of the order dated 19.10.2015 passed by the Registrar and for restoration of Review Application No. St. 3330 of 2015, which was dismissed due to non-compliance of the Registrar’s mandatory order dated 19.10.2015.

12) By impugned order, the Single Judge dismissed the appellants’ application essentially on the ground of delay, which has given rise to filing of the present appeal by way of special leave by the Writ/Review petitioners in this Court.

13) On 05.03.2018, we requested Ms. Deepa M. Kulkarni, learned counsel for the State of Maharashtra, who was present in Court, to accept notice on behalf of the Respondent-State to enable us to dispose of the appeal finally on that day having regard to the short issue involved in the appeal. Learned counsel, on our request, accepted the notice on behalf of the respondent-State.

14) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order, we restore the review Application No. (St. 3330/2015) for its hearing by the appropriate Bench in accordance with law.

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15) Paras 8, 12 and 13 of the impugned order, which deal with the issue, read as under:

“8. In Review Petition, office raised objections on 14th July, 2015. On 1st June, 2015 as the Applicants failed to remove all office objections, Section Officer made noting that all office objections are not removed on 14th July, 2015. Thereafter the matter appeared before the learned Registrar (Judicial-I) on 15th July, 2015, 19th August, 2015, 21st September, 2015 and 19th October, 2015. No one appeared on behalf of Applicants before the Registrar (Judicial-I) for removal of office objections. Hence, the Registrar (Judicial-I) passed conditional order on 19th October, 2015 granting four weeks time to remove all office objections, failing which, matter will stand rejected.
12. As the Applicants failed to disclose the sufficient cause for delay, I am of the opinion that Applicants have not made out any case for allowing the Civil Application.
13. Hence, Civil Application stand rejected.”

16) This case reminds us of the apt observations made by the learned Judge of this Court, Vivian Bose J., in Sangram Singh vs. Election Tribunal Kotah & Anr., AIR 1955 SC 425. His Lordship, speaking for the Bench, in his distinctive style of writing with subtle power of expression reminded the Courts as to how the code of procedure should be construed in the context of rights of the parties to the lis, which affects their lives and properties. His Lordship reminded that procedural laws should not be construed like a penal provision to punish the parities as far as possible. The following is the classic passage, which is always followed for doing substantial justice to the parties to the lis:

“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 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.”

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17) In our opinion, keeping in view the aforementioned observations and further having regard to the nature of controversy involved in the case, the High Court should have been liberal in taking a view in the matter and accordingly should have condoned the delay and granted the appellants one more opportunity to cure the defects. The interest of justice demanded one more opportunity to the appellants to comply with the orders of the Registry.

18) As a consequence, the appeal succeeds and is, accordingly, allowed. The impugned order is set aside.

19) The delay in filing the application filed by the appellants before the High Court is hereby condoned. The appellants are granted one month’s time as an outer limit to cure the defects pointed out by the Registry in their Review Application.

20) On curing the defects by the appellants, the Review Application be placed before the appropriate Bench for passing orders in accordance with law.

New Delhi;
March 08, 2018

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