ADVERTISEMENT
Karnataka High Court
Shri Basavaraj S vs State Of Karnataka on 28 July, 2026
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 8032 OF 2026 (GM-RES)
C/W
WRIT PETITION NO. 9372 OF 2026 (GM-RES)
IN WP NO. 8032 OF 2026:
BETWEEN:
SHRI BASAVARAJ S.
S/O. LATE M. SIDDARAMAIAH,
AGED 61 YEARS,
SENIOR ADVOCATE AND MEMBER,
KARNATAKA STATE BAR COUNCIL,
HAVING OFFICE AT NO.11, 2ND FLOOR,
JEEVAN BUILDINGS, KUMARA PARK EAST,
BANGALORE-560 001.
... PETITIONER
(BY SRI. S.P.SHANKAR, SENIOR ADVOCATE FOR
SRI. UDAY SHANKAR M., ADVOCATE)
Digitally signed by AND:
MOHANKUMAR B
SHELAR STATE OF KARNATAKA,
Location: HIGH BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,
COURT OF DEPARTMENT OF PARLIAMENTARY AFFAIRS
KARNATAKA AND LEGISLATION, ROOM NO.137, 1ST FLOOR,
VIDHANA SOUDA, BENGALURU-560001.
... RESPONDENT
(BY SRI. KIRAN V. RON, AAG FOR
SRI. MAHAMMED JAFAR SHAH, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUANCE OF
APPROPRIATE WRIT ORDER OF DIRECTION FROM THIS COURT,
DECLARING SECTION 4 OF THE CODE OF CIVIL PROCEDURE
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(KARNATAKA AMENDMENT) ACT, 2024 IN SO FAR IT
INTRODUCES THIRD PROVISO TO ORDER V RULE 1 OF THE
CODE OF CIVIL PROCEDURE 1908 (CENTRAL ACT 5 OF 1908),
AS UNCONSTITUTIONAL AND UNENFORCEABLE AND ETC.,
IN WP NO. 9372 OF 2026:
BETWEEN:
JOHAR ABBAS SON OF ARIF HUSSAIN,
AGED 39 YEARS, RESIDING AT: NO.290,
19TH MAIN ROAD, 6TH BLOCK, KORAMANGLA,
BANGALORE-560 095.
... PETITIONER
(BY SRI. S.P.SHANKAR, SENIOR ADVOCATE FOR
SRI. UDAY SHANKAR M., ADVOCATE)
AND:
STATE OF KARNATAKA,
BY ITS PRINCIPAL SECRETARY TO
GOVERNMENT DEPARTMENT OF PARLIAMENTARY
AFFAIRS AND LEGISLATION, ROOM NO.137,
1ST FLOOR, VIDHANA SOUDA, BENGALURU-560001.
... RESPONDENT
(BY SRI. KIRAN V. RON, AAG FOR
SRI. MAHAMMED JAFAR SHAH, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUANCE OF
APPROPRIATE WRIT ORDER OR DIRECTION FROM THIS COURT,
DECLARING SECTION 4 OF THE CODE OF CIVIL PROCEDURE
(KARNATAKA AMENDMENT) ACT, 2024 IN SO FAR IT
INTRODUCES THIRD PROVISO TO ORDER V RULE 1 OF THE
CODE OF CIVIL PROCEDURE 1908 (CENTRAL ACT 5 OF 1908),
AS UNCONSTITUTIONAL AND UNENFORCEABLE AND ETC.,
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
THROUGH VC AT DHARWAD FOR ORDERS ON 10.07.2026,
COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CAV ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
Table of Contents
I. Legislative Background ..............................................7
II. The Karnataka Amendment Act, 2024 ..................11
III. Challenge in the present petition ...........................13
IV. Stand of the State ......................................................17
V. Scope of Judicial Review ........................................... 18
VI. Points for consideration ............................................20
VII. Evolution of the law - Mandatory vs. directory
provision and jurisprudential foundation of Salem
Advocate Bar Association .........................................23
VIII. Tests for determining whether a provision is
mandatory or directory ..............................................26
IX. Amendment of Order VIII Rule I .............................29
X. Harmonious Construction of Order VIII Rule 1 and
10 ....................................................................................34
XI. Commercial Courts Act - A distinct legislative
Scheme .........................................................................43
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XII. Procedural Fairness and Access to Justice...........46
XIII. Legislative competence under Concurrent List
........................................................................................ 50
XIV. Section 89 of the Code ............................................61
XV. Section 151 of the Code ..........................................64
XVI. Article 14 - Manifest Arbitrariness ........................67
XVII. Section 158-A - Prima Facie concerns ................71
XVIII. Constitutional Interpretation - Preference for
Reading down ...........................................................75
XIX. Finding on points for consideration and the Doctrine
of Reading Down .......................................................80
(i) Whether Section 4 of the Amendment Act is an
attempt to override the law declared in Salem
Advocate Bar Association?.........................82
(ii) Whether the amendment takes away judicial
discretion recognised by the Hon'ble Supreme
Court?.................................................... 86
(iii) Whether the Legislature can impose an absolute
embargo upon the inherent powers of the Civil
Court?..................................................... 87
(iv) Whether the Legislature has created an apparent
inconsistency within the Code itself?............89
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(v) Interpretation of the First Proviso to Order VIII
Rule 10.....................................................................92
(vi) Whether the amendment adversely affects
litigants involved in rural property
disputes?..................................................102
(vii) Whether Section 158A of the Amendment Act is
consistent with the scheme of Sections 122 to
127 of the Code relating to the rule-making
power of the High Courts?..........................112
(viii) Whether the amendment deserves to be read
down?..................................................... 114
XX. Parameters governing exercise of judicial discretion
........................................................................................121
XXI. Directions to Trial courts ......................................... 123
XXII. Concluding Reflection ...............................................124
XXIII. Order ............................................................................146
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The present writ petitions raise an issue of
considerable constitutional and institutional significance
concerning the extent of the State Legislature's power to
amend the Code of Civil Procedure, 1908 (for short 'the
code') and the limits of such legislative power when the
field sought to be occupied has already been
authoritatively interpreted by the Hon'ble Supreme Court
while exercising its constitutional role under Article 141 of
the Constitution of India.
2. The challenge in the present proceedings is
directed against Section 4 of the Code of Civil
Procedure (Karnataka Amendment) Act, 2024 (Act
No.40 of 2025) (for short 'Amendment Act'), insofar as it
introduces the third proviso to Rule 1 Order V and
proviso to Rule 1 and Rule 10 of Order VIII of the
Code of Civil Procedure, prescribing an absolute outer
limit of one hundred and twenty days for filing of the
written statement and declaring that upon expiry of the
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said period, the defendant shall forfeit the right to file the
written statement and the Court shall not permit the
written statement to be taken on record and also
challenge to newly inserted Section 158-A as introduced
by the Amendment Act.
3. Though the challenge is formally directed
against Section 4 of the Amendment Act, the issues arising
for consideration transcend the validity of a mere
procedural amendment. The controversy touches upon the
relationship between legislative power and judicial
interpretation, the constitutional guarantee of fair
procedure, the scope of inherent powers preserved under
Section 151 of the Code, the doctrine of separation of
powers and the principle that procedural law is intended to
facilitate justice rather than defeat it.
I. Legislative Background
4. The Code is a central legislation enacted to
regulate the procedure to be followed by civil courts
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throughout the country. Being a law relatable to Entry 13
of List III (Concurrent List) of the Seventh Schedule to
the Constitution, both Parliament and the State
Legislatures possess legislative competence to enact
amendments, subject to the constitutional limitations
contained in Articles 246 and 254 of the Constitution.
Parliament, with the avowed object of expediting civil trials
and curtailing delays, enacted the Code of Civil Procedure
(Amendment) Act, 1999 followed by the Code of Civil
Procedure (Amendment) Act, 2002. One of the significant
amendments introduced was to Order VIII Rule 1,
prescribing that the defendant shall file the written
statement within thirty days from the date of service of
summons and that such period may be extended by the
Court, but not beyond ninety days from the date of service
of summons.
5. The legislative object underlying the
amendment was undoubtedly to arrest the practice of
repeated adjournments and to ensure expeditious disposal
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of civil suits. However, Parliament consciously refrained
from prescribing any express consequence rendering the
proceedings void or prohibiting the Court from exercising
its judicial discretion in exceptional cases. Simultaneously,
Order VIII Rule 10 continued to remain on the statute
book conferring discretion upon the Court either to
pronounce judgment or to make such order in relation to
the suit as it thought fit where a written statement was
not filed. The constitutional validity and true interpretation
of the amended provisions came to be examined by the
Hon'ble Supreme Court in a series of judgments
commencing with Kailash v. Nanhku1, followed by the
Constitution Bench principles governing mandatory and
directory provisions, culminating in the authoritative
pronouncement in Salem Advocate Bar Association,
Tamil Nadu vs. Union of India2, wherein the Hon'ble
Apex Court harmoniously construed Order VIII Rules 1 and
10 and held that the prescribed period is directory and
1
(2005) 4 SCC 480
2
(2005) 6 SCC 344
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not mandatory, preserving the discretion of the civil
court to permit filing of the written statement beyond the
prescribed period in exceptionally hard cases.
6. Thereafter, the said principle has consistently
been reaffirmed by the Hon'ble Supreme Court in R.N.
Jadi & Brothers v. Subhashchandra3, Desh Raj v.
Balkishan4, Shoraj Singh v. Charan Singh5, Bharat
Kalra v. Raj Kishan Chabra6 and several other decisions.
Thus, for nearly two decades, the legal position governing
ordinary civil suits has remained settled that though the
prescribed period deserves strict adherence, the Court is
not rendered powerless to extend time in exceptional
circumstances where refusal would occasion grave
injustice.
3
(2007) 6 SCC 420
4
(2020) 2 SCC 708
5
Civil Appeal No.6304 of 2021 Dtd: 08.10.2021
6
Civil Appeal No.3788 of 2022 Dtd: 09.05.2022
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II. The Karnataka Amendment Act, 2024
7. The Karnataka Legislature has now enacted the
Code of Civil Procedure (Karnataka Amendment) Act,
2024, which came into force with effect from 05.06.2025.
The Statement of Objects and Reasons discloses that the
amendment has been enacted with the object of ensuring
expeditious disposal of civil disputes and providing speedy
justice. Section 4 of the Amendment Act introduces a third
proviso to Order V Rule 1, Order VIII Rule 1 and proviso to
Rule 10 of Order VIII providing that where the defendant
fails to file the written statement within thirty days, the
Court may permit the same to be filed on such later date,
but not beyond one hundred and twenty days from the
date of service of summons, and further mandates that
upon expiry of the said period, the defendant shall forfeit
the right to file the written statement and the Court shall
not permit the written statement to be taken on record.
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8. The relevant provisions introduced by the
Amendment Act, 2024, are extracted below.
Section 4(i) of the Amendment Act inserts the following
third proviso to Order V Rule 1(1):
"Provided also that where the defendant fails to file the
Written Statement within the said period of thirty days, he
shall be allowed to file the Written Statement on such other
day, as may be specified by the Court, for reasons to be
recorded in writing and on payment of such costs as the Court
deems fit, but which shall not be later than one hundred
twenty days from the date of service of summons and on
expiry of one hundred twenty days from the date of service of
summons, the defendant shall forfeit the right to file the
Written Statement and the Court shall not allow the Written
Statement to be taken on record."
Section 4(iv) of the Amendment Act inserts the
following proviso to Order VIII Rule 10:
" (d) in rule 10, the following proviso shall be inserted, namely:-
―Provided further that no Court shall make an order to extend
the time provided under rule 1 of this order for filing of the
Written Statement."
9. The Amendment Act simultaneously introduces
Section 158A, declaring that the Code, as amended by the
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Karnataka Act, shall prevail over any conflicting provisions
contained in the rules framed by the jurisdictional High
Court or any other amendment applicable to the Code.
Section 3 of the Amendment Act inserts the following new
Section 158A:
"158A. Amendments to the Code of Civil Procedure,
1908 in its application to civil disputes:
(1) The provisions of the Code of Civil Procedure, 1908
(Central Act 5 of 1908) shall, in their application to any suit in
respect of a civil dispute, stand amended by this Act.
(2) The Civil Courts shall follow the provisions of the Code of
Civil Procedure, 1908 (Central Act 5 of 1908), as amended by
this Act, in the trial of a suit.
(3) Where any provision of any rule of the jurisdictional High
Court or any amendment to the Code of Civil Procedure, 1908
(Central Act 5 of 1908) is in conflict with the provisions of this
Code as amended by this Act, the provisions of the Code of
Civil Procedure as amended by this Act shall prevail."
III. Challenge in the Present Petition
10. The petitioners contend that though the
Legislature possesses competence to amend procedural
law, such legislative power cannot be exercised in a
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manner so as to nullify or efface the law declared by the
Hon'ble Supreme Court under Article 141 of the
Constitution. According to the petitioners, the ratio laid
down in Salem Advocate Bar Association (supra) is not
confined to the numerical period of ninety days then
prescribed under Order VIII Rule 1 but extends to the
broader principle that procedural provisions regulating
filing of written statements are directory in nature and
cannot be construed so rigidly as to defeat substantive
justice.
11. It is argued that by introducing an absolute
embargo upon the exercise of judicial discretion after
expiry of one hundred and twenty days, the State
Legislature has sought to legislatively negate the very
principle declared by the Hon'ble Supreme Court, namely,
that civil courts retain inherent jurisdiction to permit filing
of written statements in exceptional cases.
12. Learned Senior Counsels and Counsels
appearing for the petitioners further contended that the
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amendment effectively extinguishes the inherent
jurisdiction preserved under Section 151 of the Code,
renders the discretion preserved under Order VIII Rule 10
wholly illusory and deprives defendants of a meaningful
opportunity of contest, particularly in suits involving
valuable immovable property rights.
13. It was further submitted that the impugned
amendment disproportionately affects litigants residing in
rural areas. Civil litigation concerning agricultural lands,
village sites, residential houses and Gram Panchayat
properties invariably depends upon revenue records
maintained by different authorities such as Village
Accountants, Tahsildars, Survey Departments and
Revenue Offices. Procurement of certified copies of RTCs,
mutation entries, Tippani, survey sketches, grant orders,
phodi records and other foundational documents
frequently consumes considerable time owing to
administrative and logistical constraints. An inflexible
forfeiture provision, it is argued, would therefore visit
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genuine litigants with irreversible civil consequences
without any fault attributable to them.
14. Learned counsel also questioned the
constitutional validity of newly inserted Section 158A on
the ground that it prima facie trenches upon the field
occupied by Sections 122 to 127 of the Code, which
preserve the rule-making power of the High Courts in
matters of civil procedure.
15. Learned Senior counsel for the petitioner places
reliance on the following judgments;
(i) Shayara Bano v. Union of India (2017) 9 SCC 1
(ii) Kailash v. Nanhku and Others (2005) 4 SCC
480
(iii) Salem Bar association, TN v. Union of India
(2005) 6 SCC 344
(iv) Prakash Corporates v. Dee Vee Projects Ltd.
(2022) 5 SCC 112
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IV. Stand of the State
16. Per contra, the learned Additional Advocate
General Kiran Ron defended the validity of the Amendment
Act by contending that the State Legislature possesses
unquestionable legislative competence under Entry 13 of
List III of the Seventh Schedule to amend procedural law
applicable within the State.
17. It is contended that the object of the
amendment is to ensure expeditious disposal of civil
disputes, eliminate avoidable delays and strengthen
procedural discipline in trial courts. According to the State,
procedural timelines have repeatedly been upheld in
different statutory enactments including the Commercial
Courts Act, the Arbitration and Conciliation Act and the
Consumer Protection legislation.
18. It is further contended that the Legislature has
merely substituted one procedural timeline with another
by extending the period from ninety to one hundred and
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twenty days and that such legislative exercise cannot be
construed as an attempt to overrule judicial decisions.
19. Learned Additional Advocate General also
submits that modern technological advancements,
digitisation of land records, online availability of revenue
documents and the increasing use of artificial intelligence
in legal drafting substantially reduce the practical
difficulties projected by the petitioners. According to him,
the amendment advances the constitutional objective of
speedy justice without extinguishing substantive rights. It
is lastly contended that in the event this Court finds any
ambiguity in the provision, the proper constitutional
course would be to adopt the doctrine of reading down
rather than striking down the legislation.
V. Scope of Judicial Review
20. Before adverting to the rival submissions, it
requires to be noticed that every legislation enacted by a
competent legislature carries with it a presumption of
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constitutionality. Courts ordinarily lean in favour of
sustaining legislative enactments. At the same time,
where a statute is alleged to transgress constitutional
limitations or to nullify binding constitutional principles
declared by the Hon'ble Supreme Court, judicial review
becomes not merely permissible but obligatory.
21. The Court is therefore required to examine
whether the impugned amendment merely alters the
statutory procedure within the legislative domain or
whether it travels beyond permissible legislative limits by
extinguishing judicial discretion which has been recognised
as an integral component of procedural fairness under the
Code.
22. Heard learned Senior Counsel, S.P Shankar and
learned Senior Counsel, Vikram Huilgol and counsels
appearing for the petitioners and learned Additional
Advocate General, Kiran Ron.
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VI. Points for Consideration
23. In the light of the pleadings, submissions and
statutory framework, the following points arise for
consideration:
(i) Whether Section 4 of the Code of Civil Procedure
(Karnataka Amendment) Act, 2024, insofar as it
prescribes a rigid outer limit of one hundred and
twenty days for filing the written statement and
excludes judicial discretion, is an attempt by the State
Legislature to override or nullify the law declared by
the Hon'ble Supreme Court in Salem Advocate Bar
Association, Tamil Nadu v. Union of India, and if
so, whether such legislative action is constitutionally
impermissible?
(ii) Whether the impugned amendment, by taking
away judicial discretion to receive written statements
beyond one hundred and twenty days, runs contrary to
the law declared by the Hon'ble Supreme Court in
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Salem Advocate Bar Association and the subsequent
judgments following the said decision?
(iii) Whether the State Legislature, while exercising
its legislative power to amend procedural law under the
Concurrent List, can impose an absolute embargo upon
the inherent powers of the Civil Court preserved under
Section 151 of the Code and the judicial discretion
recognised under Order VIII Rule 10?
(iv) Whether the Legislature, having introduced an
absolute embargo under the third proviso to Order V
Rule 1, without correspondingly amending Order VIII
Rule 10, Section 151 and has created an apparent
inconsistency within the Code itself, and whether such
partial legislative amendment warrants reading down
the impugned provision so as to preserve the
harmonious operation of the Code?
(v) Whether the first proviso to order VIII rule 10,
inserted by section 4(iv)(d) of the Karnataka
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Amendment Act, 2024, can be construed as nullifying
the substantive provision of rule 10 and the law
declared by the Hon'ble Supreme Court in Salem
Advocate Bar Association(supra).
(vi) Whether the impugned provision results in denial
of a fair and reasonable opportunity to defend civil
proceedings, particularly those involving immovable
properties situated in rural areas where procurement of
foundational revenue records is often beyond the
control of the litigants?
(vii) Whether Section 158A of the Amendment Act is
consistent with the scheme of Sections 122 to 127 of
the Code relating to the rule-making power of the High
Courts?
(viii) Whether the impugned amendment, though
enacted with the objective of ensuring expeditious
disposal of civil suits, disproportionately impairs access
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to justice and is liable to be read down in the light of
the law declared by the Hon'ble Supreme Court?
24. Since the principal challenge revolves around
the interpretation placed by the Hon'ble Supreme Court
upon Order VIII Rules 1 and 10 of the Code and the
constitutional limitations upon legislative action, it
becomes necessary to first examine the evolution of the
law commencing from the Constitution Bench decisions on
mandatory and directory provisions and culminating in the
judgments rendered in Salem Advocate Bar
Association(supra) and the subsequent line of
authorities.
VII. Evolution of the law - Mandatory v. Directory
provision and Jurisprudential foundation of Salem
Advocate Bar Association (supra)
25. Having noticed the statutory background and
the rival submissions, this Court now proceeds to examine
the judicial evolution of Order VIII Rule 1 of the Code. The
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controversy involved in the present writ petition cannot be
decided merely by comparing the text of the Central
Amendment with the Karnataka Amendment. The issue
has to be examined in the backdrop of the law declared by
the Hon'ble Supreme Court interpreting the very provision.
The binding precedents do not merely interpret the words
employed in Order VIII Rule 1, they expound the
constitutional philosophy governing procedural law and the
limits within which procedural prescriptions operate.
26. It is a settled principle that where the Hon'ble
Supreme Court interprets a statutory provision, what
becomes binding under Article 141 is not merely the
conclusion reached in the case, but the ratio decidendi
underlying the interpretation. Consequently, before
examining whether the State Legislature has altered the
statutory language, this Court is required to ascertain the
precise principle declared by the Hon'ble Apex Court while
construing Order VIII Rule 1.
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Procedural Law - An Instrument to Advance Justice
27. The jurisprudential foundation governing
procedural statutes was laid much before the amendments
introduced by Parliament in 1999 and 2002.
28. In Sangram Singh v. Election Tribunal,
Kotah7, the Constitution Bench of the Hon'ble Supreme
Court emphasized that the Code of Civil Procedure is
designed to facilitate justice and not to obstruct it. The
Hon'ble Supreme Court observed that procedural
provisions cannot be interpreted with such technical
rigidity as to frustrate adjudication on merits. The Hon'ble
Supreme Court cautioned that every procedural enactment
must be informed by the principles of natural justice so
that parties whose civil rights are affected receive an
effective opportunity of participation.
29. The observations of Justice Vivian Bose, have
become a guiding beacon for procedural jurisprudence.
The Hon'ble Supreme Court explained that a Code of
7
AIR 1955 SC 425
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Procedure is intended to regulate the machinery of justice.
It is not an end in itself. Excessive technicality in
construing procedural provisions defeats the very object of
the Code. These principles acquired greater significance
after Parliament introduced rigid timelines into Order VIII
Rule 1 through the Amendment Acts of 1999 and 2002.
VIII. Tests for Determining Whether a Provision is
Mandatory or Directory
30. The next important milestone is the
Constitution Bench of the Hon'ble Supreme Court decision
in Raza Buland Sugar Co. Ltd. v. Municipal Board,
Rampur8. The Constitution Bench authoritatively laid
down that the mere use of the word "shall" does not
automatically render a statutory provision mandatory. The
Hon'ble Supreme Court formulated the governing tests for
determining whether a provision is mandatory or directory.
The Hon'ble Supreme Court held that the following factors
require consideration:
8
AIR 1965 SC 895
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(a) the object sought to be achieved by the statute;
(b) the purpose for which the provision is enacted;
(c) the legislative intent;
(d) the consequences flowing from construing the
provision as mandatory or directory;
(e) the inconvenience or injustice likely to result from
either construction;
(f) the relationship between the provision and the
remaining provisions of the statute; and
(g) the overall scheme of the enactment.
31. Thus, the Constitution Bench made it
abundantly clear that interpretation cannot be founded
merely upon grammatical expressions. Context, purpose,
legislative intent and consequences are equally
determinative. These principles subsequently became the
very foundation upon which Order VIII Rule 1 came to be
interpreted by the Hon'ble Supreme Court.
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Procedural Time Limits and Absence of Penal
Consequences
32. Before Order VIII Rule 1 came up for
consideration, the Hon'ble Supreme Court had occasion to
examine a similar procedural timeline in Topline Shoes
Ltd. v. Corporation Bank9. The issue before the Hon'ble
Supreme Court concerned Section 13(2) of the Consumer
Protection Act, 1986 prescribing a time limit for filing a
reply before the Consumer Forum. The Hon'ble Supreme
Court held that although the statute prescribed a definite
period, it did not provide any express penal consequence
for non-compliance. The legislative intent was to expedite
proceedings and not to deny adjudication on merits. The
Hon'ble Supreme Court therefore held that the provision
was directory.
33. The ratio emerging from Topline Shoes
(supra) is that where the statute merely prescribes a
procedural timeline without expressly extinguishing
9
(2002) 6 SCC 33
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substantive rights or completely disabling judicial
discretion, Courts should ordinarily construe such
provisions as directory unless compelling circumstances
indicate otherwise.
IX. Amendment of Order VIII Rule 1
34. Parliament thereafter introduced significant
amendments to the Code of Civil Procedure through the
Amendment Acts of 1999 and 2002. Order VIII Rule 1,
after amendment, provided that the defendant shall file
the written statement within thirty days from service of
summons and that the Court may extend the time, but not
beyond ninety days. The amendment undoubtedly
reflected the legislative concern over delay in civil trials.
The Statement of Objects and Reasons demonstrated
Parliament's intention to eliminate repeated adjournments
and to ensure procedural discipline. Significantly, however,
Parliament did not provide any express consequence
declaring that a written statement filed beyond ninety
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days shall become non est or that the Court shall lose
jurisdiction to receive it. Simultaneously, Order VIII Rule
10 remained unaltered.
The provision reads as under:
"Where any party from whom a written statement is required
fails to present the same within the time permitted or fixed by
the Court, the Court shall pronounce judgment against him, or
make such order in relation to the suit as it thinks fit."
(Emphasis supplied)
Thus, while Rule 1 introduced a procedural time
schedule, Rule 10 continued to confer a wide discretion
upon the Court.
35. The first authoritative pronouncement
interpreting the amended Rule came in Kailash v.
Nanhku (supra). The Hon'ble Supreme Court considered
whether expiry of ninety days automatically deprived the
Court of jurisdiction to receive a written statement. After
examining the purpose of the amendment, it was held that
the object of prescribing the time schedule was to expedite
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trials and not to scuttle them. The Hon'ble Supreme Court
observed that procedural law ordinarily regulates the
manner in which rights are enforced. Unless the
Legislature clearly intends forfeiture, procedural
prescriptions ought not to destroy substantive rights. The
Hon'ble Supreme Court emphasized that although the
proviso employs negative language, it does not expressly
prohibit the Court from extending time beyond ninety
days.
36. More importantly, the Hon'ble Supreme Court
held that no penal consequence had been provided for
failure to file the written statement within the prescribed
period. The Hon'ble Supreme Court therefore concluded
that the provision merely creates a disability against the
defendant but does not extinguish the Court's jurisdiction.
The Hon'ble Supreme Court held that the prescribed period
should ordinarily be followed, departure from the rule
should be by way of exception, extension cannot be
granted routinely, exceptional circumstances must exist,
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reasons must be recorded, and costs may be imposed.
Thus, Kailash (supra) preserved procedural discipline
without sacrificing judicial discretion.
37. The controversy attained finality in Salem
Advocate Bar Association, Tamil Nadu v. Union of
India (supra). The principal questions before the Hon'ble
Supreme Court were:
(a) whether the ninety-day period is mandatory;
(b) whether Courts lose jurisdiction after ninety
days;
(c) whether judicial discretion survives in exceptional
cases.
38. While answering these questions, the Hon'ble
Supreme Court did not confine itself merely to the text of
Order VIII Rule 1. It examined the broader principles
governing interpretation of procedural statutes by
referring to Sangram Singh, Raza Buland Sugar
(supra) and Topline Shoes (supra).
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39. The Hon'ble Supreme Court reiterated that the
use of the word "shall" is not conclusive. Legislative intent
has to be gathered from the context, purpose and
consequences. The Hon'ble Supreme Court emphatically
reiterated that rules of procedure exist to advance justice
and not to defeat it.
40. The Hon'ble Supreme Court approved the
celebrated observations of Justice Krishna Iyer in State of
Punjab v. Shamlal Murari10:
"Procedural 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 of justice."
The above observations have since become one of
the foundational principles governing interpretation of
procedural statutes.
10
(1979) 1 SCC 719
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X. Harmonious Construction of Order VIII Rules 1
and 10
41. The most significant contribution of Salem
Advocate Bar Association (supra) lies in the harmonious
interpretation adopted by the Hon'ble Supreme Court.
Instead of reading Rule 1 in isolation, the Court
interpreted Rule 1 together with Rule 10. The Court
noticed that although Rule 1 prescribes ninety days, Rule
10 expressly empowers the Court to "make such order in
relation to the suit as it thinks fit." If Rule 1 were
construed as completely mandatory, Rule 10 would
become largely redundant. Applying the doctrine of
harmonious construction, the Hon'ble Supreme Court held
that Rule 10 preserves judicial discretion even after expiry
of ninety days. Consequently, the Hon'ble Supreme Court
held that the defendant does not acquire an automatic
right to extension. Equally, the Court does not lose
jurisdiction merely because ninety days have expired.
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Judicial discretion survives. Its exercise, however, must
remain exceptional.
Ratio Decidendi of Salem Advocate Bar Association
42. The true ratio of Salem Advocate Bar
Association (supra) may therefore be summarized thus:
(a) the ninety-day period is directory;
(b) procedural timelines are intended to expedite
justice and not defeat adjudication;
(c) use of the word "shall" is not determinative;
(d) absence of express penal consequences is
significant;
(e) Order VIII Rules 1 and 10 must be harmoniously
construed;
(f) Rule 10 preserves judicial discretion;
(g) inherent judicial powers are not extinguished;
(h) extension beyond ninety days is permissible only
in exceptionally hard cases;
(i) reasons must be recorded;
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(j) discretion cannot be exercised routinely.
43. The importance of Salem Advocate Bar
Association (supra) lies not merely in declaring ninety
days as directory. Its enduring significance lies in the
constitutional recognition that procedural prescriptions
cannot altogether extinguish judicial discretion where
denial of such discretion would result in failure of justice.
It is this principle, rather than the numerical period of
ninety days, which constitutes the binding declaration of
law under Article 141 of the Constitution.
44. The subsequent decisions of the Hon'ble
Supreme Court have consistently reaffirmed and applied
this principle. Those authorities require detailed
examination before this Court considers whether the
impugned Amendment Act can be sustained by adopting
the doctrine of reading down.
45. The discussion shall now proceed to the
subsequent line of authorities beginning with R.N. Jadi &
Brothers v. Subhashchandra(supra) and culminating in
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Desh Raj(supra), Shoraj Singh (supra) and Bharat
Kalra (supra), which reaffirm and strengthen the ratio laid
down in Kailash(supra) and Salem Advocate Bar
Association(supra).
Binding Effect of the Law Declared in Salem
Advocate Bar Association
46. Having examined the historical evolution
culminating in the decision of the Hon'ble Supreme Court
in Salem Advocate Bar Association, Tamil Nadu v.
Union of India (supra), it now becomes necessary to
examine whether the principle laid down therein has
continued to hold the field or has undergone any
subsequent modification. The answer is found in an
unbroken line of authorities rendered by the Hon'ble
Supreme Court over the last two decades. Far from
diluting the principle enunciated in Kailash(supra) and
Salem Advocate Bar Association(supra), the Hon'ble
Supreme Court has consistently reaffirmed that the time
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schedule prescribed under Order VIII Rule 1, in ordinary
civil suits, is directory and that judicial discretion survives
beyond the stipulated period, albeit to be exercised
sparingly and only in exceptional circumstances.
47. The consistency with which this principle has
been reiterated assumes considerable constitutional
significance. Once a statutory provision has repeatedly
received authoritative interpretation by the Hon'ble
Supreme Court, that interpretation becomes an integral
part of the provision itself. Any subsequent legislative
amendment must therefore be examined in the light of the
law so declared.
48. The first important decision after Salem
Advocate Bar Association(supra) is R.N. Jadi &
Brothers v. Subhashchandra (supra). In the said case,
the Hon'ble Supreme Court was again confronted with the
question whether a written statement filed beyond the
prescribed period deserved rejection solely on account of
delay. While affirming the principles laid down in
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Kailash(supra) and Salem Advocate Bar
Association(supra), the Hon'ble Supreme Court reiterated
that procedural prescriptions cannot be interpreted in a
manner that results in denial of justice. The Hon'ble
Supreme Court invoked the celebrated maxim, "Actus
Curiae Neminem Gravabit", meaning thereby that an act of
the Court shall prejudice no person.
49. More importantly, the Hon'ble Supreme Court
once again emphasised that procedural law is merely the
handmaid of justice and that rigid adherence to procedural
technicalities cannot defeat substantial rights. The Hon'ble
Supreme Court observed that procedural provisions are
intended to facilitate adjudication upon merits and not to
create artificial barriers against adjudication. Reaffirming
Kailash(supra), the Hon'ble Supreme Court held that
though the Legislature intended speedy disposal of civil
disputes, it never intended that genuine litigants should be
denied an opportunity of defence in deserving cases.
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The Consistent Judicial Philosophy
50. The decisions rendered after R.N. Jadi (supra)
demonstrate remarkable consistency. Every Bench of the
Hon'ble Supreme Court has adopted the same
interpretative approach, namely procedural timelines
deserve strict compliance; Courts must discourage dilatory
tactics; judicial discretion nevertheless survives; discretion
must be exercised only upon exceptional circumstances;
and, justice on merits remains the governing
consideration. Thus, what emerges is not a series of
isolated judgments but a coherent and consistent
jurisprudence governing Order VIII Rule 1.
51. A significant reiteration of the principle is found
in Desh Raj v. Balkishan (Dead) through LRs (supra).
The Hon'ble Supreme Court considered the earlier
judgments beginning from Kailash(supra), Salem
Advocate Bar Association(supra) and R.N. Jadi(supra).
The Hon'ble Supreme Court specifically noticed its earlier
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decision in Atcom Technologies Ltd. v. Y.A.
Chunawala & Co.11, wherein it had recognised that the
inherent discretion of Courts to condone delay in filing
written statements continued to survive under the
ordinary provisions of the Code. The Hon'ble Supreme
Court observed that such judicial discretion is neither
unguided nor arbitrary. Its contours have gradually been
defined by judicial precedents. The Hon'ble Supreme Court
illustratively observed that circumstances beyond the
control of a litigant, despite due diligence, may justify
extension of time. Thus, Desh Raj(supra) recognised that
judicial discretion forms an integral part of procedural
fairness under the Code.
52. The principle was once again reaffirmed in
Shoraj Singh v. Charan Singh (supra). In the said case,
the Allahabad High Court had refused to receive the
written statement solely on the ground that it was filed
beyond the prescribed period. Reversing the decision of
11
(2018) 6 SCC 639
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the High Court, the Hon'ble Supreme Court held that the
High Court had completely misdirected itself in ignoring
the binding ratio laid down in Kailash (supra) and Salem
Advocate Bar Association (supra). The Hon'ble Supreme
Court categorically reiterated that the prescribed period
under Order VIII Rule 1 is directory and not mandatory.
The judgment reinforces an important constitutional
principle, namely, that subordinate Courts are bound by
the law declared by the Hon'ble Supreme Court under
Article 141.
53. The next decision requiring consideration is
Bharat Kalra v. Raj Kishan Chabra (supra). The Hon'ble
Supreme Court was once again confronted with the
question whether delay in filing the written statement
should result in denial of defence. Relying upon
Kailash(supra), the Hon'ble Supreme Court held that
refusal to receive the written statement merely because of
delay would be wholly unreasonable where the delay could
adequately be compensated by costs. The Hon'ble
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Supreme Court observed that while procedural discipline
must undoubtedly be maintained, such discipline cannot
become punitive so as to deprive a party of defending
valuable civil rights. The Hon'ble Supreme Court therefore
reiterated that the ends of justice are better served by
compensating delay through costs rather than foreclosing
adjudication altogether.
XI. Commercial Courts Act - A Distinct Legislative
Scheme
54. Considerable reliance was placed by the learned
Additional Advocate General upon the provisions of the
Commercial Courts Act, 2015, which prescribe an absolute
outer limit of one hundred and twenty days for filing
written statements. This submission deserves careful
consideration. The Commercial Courts Act constitutes a
special legislation enacted by Parliament governing
commercial disputes of specified value. Unlike the ordinary
Code of Civil Procedure, Parliament consciously amended
Order VIII Rule 1 in its application to commercial disputes
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by expressly providing that upon expiry of one hundred
and twenty days, the defendant shall forfeit the right to
file the written statement. The mandatory consequence is
therefore expressly incorporated within the statute itself.
The Hon'ble Supreme Court has consistently treated
commercial litigation as forming a separate class owing to
the specialised nature of commercial transactions and the
legislative policy of ensuring strict adherence to timelines.
The legislative scheme governing commercial disputes
therefore cannot automatically be imported into ordinary
civil litigation involving title to agricultural lands,
residential houses, partition suits, easementary rights,
inheritance disputes and other civil causes governed by
the general Code.
Distinction Between Commercial Litigation and
Ordinary Civil Litigation
55. Ordinary civil litigation occupies a wholly
different field. A substantial percentage of civil litigation
before Trial Courts in this State concerns disputes relating
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to agricultural lands, ancestral properties, partition,
declaration of title, village houses, Gram Panchayat sites,
tenancy rights and boundary disputes. Unlike commercial
litigation where documentary evidence ordinarily remains
within the control of corporate litigants, property disputes
frequently require procurement of numerous public
documents maintained by different governmental
authorities. The Court cannot ignore the ground realities
prevailing in rural Karnataka. Revenue records are often
maintained at different administrative levels.
56. Certified copies of mutation extracts, RTCs,
Tippani, survey sketches, phodi records, grant registers,
village maps and historical records are not always readily
available. Procurement of such records frequently depends
upon administrative processes over which litigants have
little control. Delay in securing these foundational
documents is therefore not necessarily attributable to
negligence or dilatory tactics.
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XII. Procedural Fairness and Access to Justice
57. Access to justice constitutes one of the
fundamental facets of Article 14. A fair opportunity to
defend is equally an indispensable component of civil
adjudication. Civil Courts adjudicate disputes affecting
proprietary rights, inheritance, possession, status and
livelihood. The consequences flowing from a decree often
have irreversible civil consequences extending across
generations. It is precisely for this reason that the Hon'ble
Supreme Court has repeatedly held that procedural
provisions must facilitate adjudication upon merits. A
defendant who is denied an opportunity to file a written
statement may ultimately suffer a decree affecting
valuable property rights without his defence ever being
examined. Such consequences explain why the Hon'ble
Supreme Court has consistently insisted upon preservation
of limited judicial discretion.
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58. It is at this juncture that the present
controversy assumes constitutional significance. The
petitioners contend that the Amendment Act does not
merely substitute the figure "90 days" by "120 days".
Rather, it seeks to legislatively eliminate the judicial
discretion which the Hon'ble Supreme Court held to
survive under Order VIII Rule 10. The distinction is
substantial. The ratio of Salem Advocate Bar
Association(supra) is not confined to the numerical
period prescribed under Rule 1. The decision proceeds
upon a broader constitutional premise that procedural
prescriptions governing filing of written statements cannot
altogether extinguish judicial discretion.
59. If the legislative amendment merely enlarges
the time from ninety days to one hundred and twenty days
while preserving judicial discretion in deserving cases, no
constitutional issue may arise. The controversy arises
because the impugned amendment introduces a forfeiture
clause coupled with an express prohibition against the
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Court receiving the written statement thereafter. The
question therefore is not whether the Legislature can
prescribe one hundred and twenty days. The real question
is whether it can altogether extinguish judicial discretion
which has repeatedly been recognised by the Hon'ble
Supreme Court as an integral part of procedural justice
under the Code.
60. The answer to this question necessarily requires
examination of the constitutional limits upon legislative
power, the doctrine of separation of powers, Article 141,
Article 14, the doctrine of manifest arbitrariness and the
distinction between legislative overruling and legislative
removal of the basis of a judgment. These constitutional
principles shall now be examined.
61. Having examined the evolution of the law
declared by the Hon'ble Supreme Court, the next question
that falls for consideration is whether the Karnataka
Legislature, while exercising its legislative competence
under the Concurrent List, could enact the impugned
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amendment in the manner in which it has done. The
controversy now travels beyond the realm of statutory
interpretation and enters the constitutional domain.
62. The challenge mounted by the petitioners is not
founded upon lack of legislative competence. Indeed,
learned Senior Counsels and counsels appearing for
petitioners in batch of petitions fairly submitted that the
State Legislature possesses competence under Entry 13 of
List III (Concurrent List) of the Seventh Schedule to
amend the Code of Civil Procedure in its application to the
State. The grievance is that while exercising such
legislative power, the Legislature has transgressed
constitutional limitations by virtually nullifying the law
declared by the Hon'ble Supreme Court under Article 141
of the Constitution and by extinguishing judicial discretion
which forms an integral component of fair procedure. The
distinction between legislative competence and
constitutional validity assumes significance. A Legislature
may possess competence to legislate on a particular
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subject, yet the legislation may still be liable to
constitutional scrutiny if it violates a constitutional
limitation, infringes a fundamental right, or seeks to
impermissibly trench upon the judicial domain.
XIII. Legislative Competence under the Concurrent
List
63. The Code of Civil Procedure is relatable to Entry
13 of List III, which deals with "Civil Procedure, including
all matters included in the Code of Civil Procedure.
Parliament and the State Legislatures, therefore, possess
concurrent legislative competence in the field of civil
procedure. Article 254 contemplates that where a State
law relating to a Concurrent List subject receives
Presidential assent, it may prevail within the State
notwithstanding inconsistency with an earlier Central
enactment, subject to Parliament's overriding power to
subsequently legislate. Thus, the competence of the
Karnataka Legislature to amend procedural provisions of
the Code cannot seriously be doubted. However,
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legislative competence is only the first step. Every
legislative enactment, though enacted by a competent
Legislature, must satisfy constitutional requirements under
Part III and the basic constitutional framework.
a. Separation of Powers
64. The Constitution envisages a delicate balance
between the Legislature, the Executive and the Judiciary.
Though India does not follow a rigid separation of powers,
the Constitution nevertheless demarcates the
constitutional functions assigned to each organ. Article 50
specifically directs the State to take steps to separate the
judiciary from the executive in public services. Judicial
independence is one of the essential features of the
Constitution. Equally essential is judicial authority to
interpret statutes enacted by the Legislature. Once the
Hon'ble Supreme Court interprets a statutory provision,
the interpretation becomes the law declared under Article
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141. The Legislature cannot simply declare that the
judicial interpretation shall cease to operate.
b. Legislative Overruling and Removal of the Basis
65. It is by now settled that the Legislature cannot
directly overrule a judicial decision. At the same time, the
Legislature is competent to remove the statutory basis
upon which the judgment proceeds by suitably amending
the law. The distinction between these two concepts is
fundamental. Legislature may alter the law retrospectively
or prospectively. It may change statutory conditions. It
may substitute the legal foundation upon which a
judgment rested. However, it cannot merely declare that a
judicial pronouncement shall no longer bind.
66. The Hon'ble Supreme Court has repeatedly
recognised this distinction. The Legislature cannot exercise
judicial power. Nor can it declare that the interpretation
placed by Courts upon an existing provision shall stand
obliterated without altering the legal foundation.
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67. It therefore becomes necessary to examine
what precisely constituted the ratio of Salem Advocate
Bar Association(supra). As noticed earlier, the Hon'ble
Supreme Court did not merely interpret the numerical
period of ninety days. The Hon'ble Supreme Court
harmoniously construed Order VIII Rules 1 and 10. The
Hon'ble Supreme Court held that procedural law advances
justice; Rule 10 preserves judicial discretion; inherent
judicial power survives; extension beyond ninety days is
permissible in exceptional cases.
68. Thus, the basis of the judgment was not the
figure "90". The basis lay in preservation of judicial
discretion. The impugned Amendment Act undoubtedly
substitutes ninety days by one hundred and twenty days.
If the amendment had merely enlarged the period from
ninety days to one hundred and twenty days, little
constitutional difficulty may have arisen. The difficulty
arises because the amendment further provides that upon
expiry of one hundred and twenty days, the defendant
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shall forfeit the right to file the written statement; and the
Court shall not allow the written statement to be taken on
record. The consequence of the amendment is not merely
procedural. It completely disables judicial discretion. The
discretion preserved under Order VIII Rule 10, recognised
by the Hon'ble Supreme Court, is thereby rendered
ineffective.
c. Effect of Partial Legislative Amendment and the
Necessity of Harmonious Construction
69. One significant aspect of the impugned
amendment, which has not received adequate attention
during the course of arguments, is that the Karnataka
Legislature has chosen to amend only one limb of the
statutory scheme governing filing of written statements
while leaving the remaining provisions of the Code
completely untouched. The third proviso inserted to Order
V Rule 1 prescribes an outer limit of one hundred and
twenty days and further declares that upon expiry of the
said period, the defendant shall forfeit the right to file the
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written statement and the Court shall not permit the
written statement to be taken on record. Significantly,
while introducing the proviso to Rule 10 of Order VIII, the
Legislature has consciously left the substantive provision
of Rule 10 untouched. The Legislature has neither
amended nor omitted these enabling words which
constitute the very source of judicial discretion recognised
by the Hon'ble Supreme Court. However, the Legislature
has not correspondingly amended Section 151, of the
Code, which continue to occupy the field and continue to
confer discretion upon the Civil Court and preserve the
procedural autonomy of the High Court.
70. This legislative omission assumes considerable
constitutional significance. The Code of Civil Procedure is a
self-contained procedural enactment. Its provisions cannot
be read in isolation. Every provision has to be construed
as part of an integrated statutory scheme. It is a cardinal
principle of statutory interpretation that one provision of a
statute cannot be interpreted in a manner that renders
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another provision redundant, otiose or incapable of
operation. The Court is under a duty to adopt an
interpretation that preserves internal consistency and
gives effect to every provision enacted by the Legislature.
71. Order VIII Rule 10 has consciously been
retained in its original form, by merely adding a proviso. It
continues to authorise the Court, where a written
statement is not filed within the time permitted, either to
pronounce judgment or "to make such order in relation
to the suit as it thinks fit." These words are of the
widest amplitude and unmistakably preserve judicial
discretion. Likewise, Section 151, which saves the inherent
powers of every Civil Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of
the process of the Court, remains untouched.
72. If the newly inserted third proviso to Order V is
construed literally as completely denuding the Civil Court
of every discretion after expiry of one hundred and twenty
days, the consequence would be that Order VIII Rule 10
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becomes substantially ineffective, Section 151 stands
impliedly curtailed in one important area of procedural
law, and the harmonious scheme of the Code recognised
by the Hon'ble Supreme Court in Salem Advocate Bar
Association (supra) stands disrupted. Such an
interpretation cannot readily be accepted.
73. It is a settled principle that repeal by
implication is not favoured in law. Equally well settled is
the principle that implied curtailment of judicial powers is
not to be readily inferred unless the legislative intention is
expressed in the clearest possible language. Courts
ordinarily presume that the Legislature was conscious of
the existing statutory framework while introducing an
amendment. Had the legislative intention been to
completely extinguish judicial discretion preserved under
Order VIII Rule 10 and Section 151, nothing prevented the
Legislature from expressly amending those provisions as
well. The conspicuous absence of any such corresponding
amendment is a significant indicator that the Legislature
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did not intend to rewrite the entire procedural architecture
of the Code.
74. The Court cannot lose sight of another
important circumstance. The Hon'ble Supreme Court in
Salem Advocate Bar Association (supra) did not
interpret Order VIII Rule 1 in isolation. The Court
harmoniously construed Rule 1 together with Rule 10 and
held that the discretion preserved under Rule 10 enabled
the Court, in exceptionally hard cases, to receive the
written statement even after expiry of the prescribed
period. That ratio has held the field for nearly two
decades. If the Legislature intended to displace that
interpretation, it was incumbent upon it to amend not the
very provision namely Rule 10 of Order VIII upon which
the Hon'ble Supreme Court founded its reasoning. The
Legislature having consciously refrained from doing so, it
would be inappropriate for this Court to infer an implied
legislative intent to extinguish judicial discretion.
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75. The same reasoning applies with greater force
to Section 151 of the Code. The inherent powers of a Civil
Court are not conferred by implication, they are expressly
recognised by the statute itself. Though such powers
cannot override an express statutory prohibition, they
cannot be held to have been impliedly abrogated by a
partial amendment unless the legislative intent is manifest
beyond doubt. The impugned amendment contains no
express provision excluding the operation of Section 151.
Nor does it declare that the inherent jurisdiction of the
Court shall cease to exist in relation to applications for
receiving written statements. In the absence of such
express language, this Court would be slow to attribute to
the Legislature an intention to denude Civil Courts of their
inherent jurisdiction.
76. The partial nature of the amendment thus
creates an apparent inconsistency within the Code itself.
On the one hand, the newly inserted proviso appears to
mandate forfeiture of the right to file the written
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statement. On the other hand, Rule 10 of Order VIII
continues to preserve judicial discretion, Section 151
continues to preserve inherent powers. The only
constitutionally permissible method of reconciling these
provisions is by adopting the doctrine of harmonious
construction.
77. It is a settled principle that where two
provisions of the same statute appear to be in conflict, the
Court should endeavour to reconcile them rather than
permit one provision to destroy the other. Reading down is
but an extension of this principle. The doctrine enables the
Court to preserve the validity of a legislative enactment by
assigning to it a construction that is consistent with the
Constitution and with the remaining provisions of the
statute.
78. This Court is therefore of the considered opinion
that the Legislature, by mere adding of proviso, while
consciously leaving untouched Order VIII Rule 10, Section
151, has itself furnished a compelling reason for adopting
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the doctrine of reading down. Such an interpretation alone
preserves the internal coherence of the Code, gives
meaningful operation to every provision enacted by
Parliament, respects the law declared by the Hon'ble
Supreme Court in Salem Advocate Bar
Association(supra), and simultaneously advances the
legislative object of securing expeditious disposal of civil
disputes. Any other interpretation would result in one
provision of the Code impliedly repealing or rendering
nugatory several other provisions, a consequence which
settled principles of statutory interpretation do not
countenance.
XIV. Section 89 of the Code
79. Another significant anomaly that appears to
have escaped the attention of the Legislature while
amending Order V by introducing the third proviso and
proviso to Rule 10 of Order VIII, concerns the interplay
between the amended provision and Section 89 of the
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Code of Civil Procedure. Section 89 casts a statutory
obligation on the Court to explore the possibility of an
amicable settlement, particularly in disputes involving
family members where preservation of relationships is of
paramount importance. In such suits, parties often seek
time to negotiate and resolve their differences outside the
adversarial process. Consequently, delay in filing the
written statement may not be attributable to negligence or
dilatory tactics, but to bona fide attempts at settlement
encouraged by the Court itself. If the amended provision is
construed as imposing an inflexible outer limit for filing the
written statement, irrespective of the pendency of
settlement efforts, it would defeat the very object
underlying Section 89. More importantly, it would denude
the Court of its inherent power to extend the time for filing
the written statement in appropriate and exceptional
circumstances, even where such extension would facilitate
an amicable resolution of the dispute. The amendment,
therefore, fails to account for this distinct class of civil
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disputes where the legislative policy itself mandates
judicial intervention to foster reconciliation rather than
expedite adversarial adjudication. Such an omission
renders the rigid prescription susceptible to criticism, as it
overlooks situations in which procedural flexibility is
indispensable to advance the larger objective of securing
enduring and peaceful settlement of family disputes.
80. Order VIII Rule 10 assumes considerable
significance. Even today it continues to provide that where
the written statement is not filed, the Court may either
pronounce judgment or make such order in relation to the
suit as it thinks fit. These words confer a wide judicial
discretion. They are not accidental. The Legislature
consciously retained them even while amending Rule 1 of
Order VIII of CPC. It was precisely this discretion which
the Hon'ble Supreme Court harmonised with Rule 1 of
Order VIII in Salem Advocate Bar Association(supra).
Therefore, unless Rule 10 itself stands amended, complete
exclusion of judicial discretion would produce an apparent
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conflict within the Code of Civil Procedure itself. A
construction which harmonises Rules 1 and 10 deserves
preference over one rendering Rule 10 substantially
otiose.
XV. Section 151 of the Code
81. Though inherent powers cannot override
express statutory provisions, they continue to exist to
prevent abuse of process and to secure the ends of justice
wherever the Code remains silent. The Hon'ble Supreme
Court in Kailash(supra) and Salem Advocate Bar
Association(supra) recognised that procedural provisions
should not be interpreted in a manner which altogether
excludes judicial power to prevent failure of justice.
82. Section 151 of the Code is a saving provision
which preserves the inherent powers of every Civil Court
to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court. It
neither creates an independent source of substantive
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jurisdiction nor authorises the Court to act in derogation of
an express statutory provision. The inherent jurisdiction is
supplementary in nature and operates where the Code is
silent or where its procedural machinery requires judicial
intervention to secure justice.
83. The Amendment Act introducing the third
proviso to Order V Rule 1 prescribes an outer limit of one
hundred and twenty days for filing the written statement
and stipulates forfeiture of the right thereafter. The
amendment undoubtedly regulates the exercise of judicial
discretion in matters relating to filing of written statements
and substantially narrows the field within which such
discretion may be exercised. Nevertheless, the Legislature
has not amended or excluded the operation of Section
151. In the absence of an express provision abrogating the
inherent powers of the Civil Court, it would be
impermissible to infer their complete extinction by
implication.
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84. The settled position of law is that while Section
151 cannot be invoked to defeat or routinely circumvent
an express statutory mandate, neither can it be rendered
wholly otiose by a partial legislative amendment. Its
operation survives in those exceptional situations where
strict adherence to the procedural prescription would itself
result in manifest injustice or abuse of the process of the
Court, provided such exercise does not rewrite or nullify
the legislative scheme.
85. Accordingly, this Court is of the considered
opinion that the Amendment Act cannot be construed as
extinguishing the inherent jurisdiction preserved under
Section 151 of the Code. What stands curtailed is the
routine exercise of discretion to extend the time for filing
the written statement beyond one hundred and twenty
days, what survives is the Court's narrow and exceptional
jurisdiction to secure the ends of justice in circumstances
of an extraordinary nature. Such an interpretation alone
harmonises the amended proviso with Section 151,
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preserves the coherence of the Code as an integrated
procedural enactment and accords with the principles laid
down by the Hon'ble Supreme Court in Manohar Lal
Chopra v. Rai Bahadur Rao Raja Seth Hiralal12, Ram
Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal
Bhargava13, Kailash v. Nanhku (supra) and Salem
Advocate Bar Association, Tamil Nadu v. Union of
India(supra). Consequently, an interpretation that
completely extinguishes every vestige of judicial discretion
requires careful constitutional scrutiny.
XVI. Article 14 - Manifest Arbitrariness
86. Tested on the touchstone of Article 14 of the
Constitution, this Court is of the considered opinion that
the legislative objective of prescribing an outer limit of one
hundred and twenty days for filing the written statement
is, in itself, neither arbitrary nor constitutionally infirm.
Expeditious disposal of civil disputes is a legitimate
12
1962 AIR 527
13
AIR 1966 SC 1899
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legislative objective and an indispensable component of an
effective justice delivery system. The constitutional
infirmity, however, lies not in the prescription of the time
limit, but in the incorporation of the expressions that,
upon the expiry of one hundred and twenty days, "the
defendant shall forfeit the right to file the written
statement" and "the Court shall not allow the written
statement to be taken on record", if those expressions are
construed as creating an absolute and inflexible embargo,
wholly excluding judicial discretion.
87. Such a construction fails to satisfy the
constitutional requirements of fairness, reasonableness
and non-arbitrariness that permeate Article 14. It
indiscriminately places a litigant who has deliberately
adopted dilatory tactics on the same footing as one who,
despite acting bona fide and with due diligence, is
prevented by circumstances wholly beyond his control
from filing the written statement within the prescribed
period. By treating inherently unequal situations alike, the
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provision, if literally construed, produces a consequence
that is manifestly disproportionate to the object sought to
be achieved. The forfeiture of the valuable right to defend
a civil action, irrespective of the nature of the dispute, the
conduct of the litigant or the existence of compelling
circumstances, bears no rational nexus to the legislative
objective of securing procedural discipline and, in
appropriate cases, may itself become a source of
procedural injustice.
88. The constitutional guarantee under Article 14 is
not confined to prohibiting hostile discrimination, it also
mandates that legislative measures must satisfy the tests
of fairness, reasonableness and rationality. As repeatedly
emphasised by the Hon'ble Supreme Court in E.P.
Royappa v. State of Tamil Nadu14, Maneka Gandhi v.
Union of India15, Kailash v. Nanhku(supra), Salem
Advocate Bar Association, Tamil Nadu v. Union of
India(supra), Atcom Technologies Ltd. v. Y.A.
14
AIR 1974 SC 555
15
AIR 1978 SC 597
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Chunawala & Co. (supra) and Shayara Bano v. Union
of India16, procedural law is intended to facilitate justice
and cannot be so construed as to defeat adjudication on
merits by mechanically visiting every default with an
irreversible consequence.
89. This Court is, therefore, of the considered
opinion that while the legislative prescription of a one
hundred and twenty-day outer limit withstands
constitutional scrutiny, the absolute forfeiture
contemplated by the impugned expressions cannot, if
literally construed, satisfy the constitutional mandate of
Article 14. The vice of arbitrariness lies in the absolute
exclusion of judicial discretion and not in the prescription
of the timeline itself. Consequently, to preserve both the
legislative object and the constitutional guarantee of
fairness and equal protection of the laws, the impugned
expressions are liable to be read down so as to preserve a
narrowly circumscribed judicial discretion in exceptionally
16
AIR 2017 SC 4609
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rare and deserving cases where refusal to receive the
written statement would result in manifest failure of
justice.
90. It is trite that Article 14 strikes at arbitrariness
in State action, and that a law which affects civil rights
must meet the test of fairness, justness and
reasonableness. The principles enunciated in E.P.
Royappa v. State of Tamil Nadu (supra) and Maneka
Gandhi v. Union of India(supra), thus furnish the
constitutional touchstone for examining whether the
impugned amendment, in its operation, unjustly forecloses
a litigant's right to defend.
XVII. Section 158A - Prima Facie Concerns
91. It is necessary to deal with the challenge to
newly inserted Section 158-A, as introduced by the
Amendment Act.
92. Learned Senior Counsels have questioned the
validity of newly inserted Section 158A. Sections 122 to
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127 of the Code preserve the rule-making power of the
High Courts. These provisions constitute an integral part of
the procedural framework under the Code. Section 158A
declares that where any rule framed by the High Court
conflicts with the State Amendment, the State Amendment
shall prevail.
93. This Court is of the considered opinion that
Section 158-A cannot be construed in isolation or as
conferring overriding supremacy upon the State
amendment over every rule framed by the jurisdictional
High Court. Such an interpretation would be inconsistent
with the scheme of the Code of Civil Procedure itself.
Sections 122 to 127 of the Code expressly recognise and
preserve the statutory power of the High Court to frame
rules regulating civil procedure. Those provisions continue
to remain part of the principal enactment and constitute
an integral component of the legislative framework
governing civil courts. Therefore, Section 158-A(3), which
provides that the provisions of the Code as amended by
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the Amendment Act shall prevail over any rule framed by
the jurisdictional High Court in case of conflict, cannot be
understood as abrogating or rendering otiose the powers
vested in the High Court under Sections 122 to 127 of the
Code. Nor can it be construed as curtailing the
constitutional powers of superintendence vested in the
High Court under Article 227 of the Constitution or its
jurisdiction under Article 225.
94. The only constitutionally permissible
interpretation is that Section 158-A is intended to regulate
the application of the State amendments to the Code and
not to denude the High Court of its statutory or
constitutional powers. Accordingly, Section 158-A is also
required to be read down and harmoniously construed with
Sections 122 to 127 of the Code, the constitutional powers
of the High Court and the law declared by the Hon'ble
Supreme Court under Article 141 of the Constitution.
95. Any conflict between the Amendment Act and
the Rules framed by this Court under Sections 122 to 127
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the Code shall be resolved by adopting a harmonious
construction, and the provisions of Section 158-A shall not
be interpreted so as to impliedly repeal or render nugatory
the High Court Rules unless such repeal is expressly
authorised by Parliament or is constitutionally permissible.
96. It is accordingly declared that Section 158-A
shall not be construed as overriding or eclipsing the rule-
making powers of the High Court under Sections 122 to
127 of the Code of Civil Procedure, nor shall it be
interpreted as authorising departure from or nullification of
the binding law declared by the Hon'ble Supreme Court.
To the aforesaid extent, Section 158-A stands read down.
Prima facie, such a provision requires careful examination
in light of the statutory scheme governing High Court rule-
making powers. However, in the present proceedings the
principal challenge centres around Order V Rule 1 and
proviso to Rule 10 of Order VIII of the Code of Civil
Procedure.
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97. Since this Court proposes to adopt a
constitutionally harmonious interpretation of the impugned
amendment, it becomes unnecessary at this stage to
pronounce finally upon the validity of Section 158A except
to observe that the said provision must necessarily
operate subject to the constitutional scheme of the Code
and the binding law declared by the Hon'ble Supreme
Court.
XVIII. Constitutional Interpretation - Preference for
Reading Down
98. Constitutional adjudication has consistently
recognised that a Court should lean in favour of sustaining
the validity of a legislative enactment rather than
invalidating it. Where a statutory provision is reasonably
capable of two constructions, one which renders it
unconstitutional and another which preserves its validity,
the latter must ordinarily be preferred. The doctrine of
reading down is a well-established principle of
constitutional interpretation evolved to preserve legislative
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intent while ensuring conformity with constitutional
limitations. It is neither a device to rewrite legislation nor
a means to legislate under the guise of interpretation;
rather, it is an interpretative tool employed to save a
statutory provision from the vice of unconstitutionality
where such a construction is reasonably possible.
99. The contours of this doctrine have been
delineated by the Hon'ble Supreme Court in a catena of
decisions. In Kedar Nath Singh v. State of Bihar17,
while considering the constitutional validity of Section
124A of the Indian Penal Code, the Constitution Bench
upheld the provision by confining its operation to acts
involving incitement to violence or public disorder, thereby
reading down its otherwise wide language. Likewise, in
Shreya Singhal v. Union of India18, the Hon'ble
Supreme Court reiterated that where a statutory provision
is incapable of being saved by any permissible
interpretative process, the Court would have no option but
17
AIR 1962 SC 955
18
(2015) 5 SCC 1
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to declare it unconstitutional. Conversely, where the
language of the statute reasonably admits of a
construction consistent with constitutional guarantees, the
doctrine of reading down must be invoked to preserve its
validity. Similarly, in Navtej Singh Johar v. Union of
India19, (2018) 10 SCC 1, while reading down Section
377 of the Indian Penal Code, the Constitution Bench
reaffirmed that constitutional courts are duty-bound to
adopt an interpretation which harmonises legislative
enactments with the guarantees of fundamental rights,
wherever such reconciliation is reasonably possible.
100. The principle emerging from the aforesaid
decisions is that constitutional courts do not readily
invalidate legislation merely because one possible
construction may render it unconstitutional. Judicial
restraint demands that the Court first examine whether
the legislative provision is capable of a constitutionally
compliant interpretation. It is only where such
19
(2018) 10 SCC 1
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reconciliation is impossible that the drastic consequence of
striking down a statutory provision becomes inevitable.
101. In the present case, the learned Additional
Advocate General has also submitted that if this Court
finds any constitutional infirmity in the operation of the
impugned amendment, the provision may appropriately be
read down instead of being declared unconstitutional. This
submission, in the considered opinion of this Court, merits
acceptance. The legislative objective underlying the
Amendment Act is undeniably to secure expeditious
disposal of civil disputes by introducing greater procedural
discipline. That objective is constitutionally legitimate and
ought to receive due judicial deference. Equally, the
constitutional guarantees of fairness, reasonableness and
access to justice cannot be rendered illusory by an
interpretation that excludes every vestige of judicial
discretion.
102. The question before this Court, therefore, is not
whether the Amendment Act deserves to be invalidated.
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The real issue is whether the impugned proviso is
reasonably capable of a construction that preserves the
legislative mandate of expeditious disposal while
simultaneously harmonising it with Order VIII Rule 10,
Section 151 of the Code of Civil Procedure, the statutory
framework contained in Sections 122 to 127 of the Code,
and the law declared by the Hon'ble Supreme Court under
Article 141 of the Constitution. If such a construction is
reasonably possible and this Court is of the considered
view that it is the constitutional duty of the Court is to
adopt that interpretation by invoking the doctrine of
reading down, thereby preserving both the validity of the
legislation and the constitutional commitment to fair
procedure.
103. The Doctrine Of Reading Down, thus, furnishes
the constitutional bridge between legislative supremacy
and judicial review. It enables the Court to preserve the
legislative policy of expeditious disposal without sacrificing
the constitutional guarantees of fairness, reasonableness
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and equal protection embodied in Article 14. Since the
impugned amendment is reasonably capable of a
construction that harmonises its provisions with Order VIII
Rule 10, Section 151, Sections 122 to 127 of the Code and
the binding law declared by the Hon'ble Supreme Court
under Article 141 of the Constitution, this Court finds no
necessity to invalidate the amendment. The constitutional
infirmity stands adequately addressed by reading down
the impugned expressions in the manner indicated herein,
thereby preserving both the legislative intent and the
constitutional commitment to substantive justice.
XIX. Findings on the Points for Consideration and
the Doctrine of Reading Down
104. Having bestowed anxious consideration to
the rival submissions, the statutory scheme, the
Statement of Objects and Reasons accompanying the
Amendment Act, the judgments of the Hon'ble Supreme
Court commencing from Sangram Singh (supra) and
culminating in Bharat Kalra(supra), this Court is of the
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considered opinion that the controversy can be resolved
without declaring the impugned provision unconstitutional.
The constitutional challenge, in the opinion of this Court,
can appropriately be answered by adopting the well-
established doctrine of reading down, thereby preserving
both the legislative intent and the constitutional principles
governing procedural fairness.
105. It is a settled canon of constitutional
adjudication that every legislation enacted by a competent
Legislature carries with it a presumption of
constitutionality. Courts do not strike down legislation
merely because another view is possible. The
constitutional court is under an obligation to sustain a
statute wherever such construction is reasonably possible.
It is only when no constitutionally permissible
interpretation is available that the Court resorts to the
extreme step of invalidation.
106. Applying the aforesaid principles, this Court is
satisfied that the object sought to be achieved by the
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Karnataka Legislature, namely, expeditious disposal of civil
disputes, is unquestionably legitimate. Delay in civil trials
has remained a matter of serious concern for decades. The
Legislature was, therefore, fully justified in introducing
procedural reforms intended to secure discipline in the
conduct of civil proceedings.
107. However, the constitutional difficulty arises not
because the Legislature prescribed an outer limit of one
hundred and twenty days, but because the impugned
provision, if literally construed, appears to completely
denude the Civil Court of every vestige of judicial
discretion, even in cases where grave injustice would
otherwise result. It is this aspect which necessitates
constitutional interpretation.
Finding on Point No.(i):
(i) Whether Section 4 of the Amendment Act is an
attempt to override the law declared in Salem
Advocate Bar Association?
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108. The first point requires careful examination of
the ratio laid down in Salem Advocate Bar Association.
The submission of the petitioners proceeds on the premise
that the State Legislature has attempted to legislatively
overrule the judgment of the Hon'ble Supreme Court. This
Court is unable to subscribe to the proposition in its
absolute form. It is well settled that the Legislature
possesses competence to amend the statutory provision
which formed the subject matter of judicial interpretation.
Merely because a statute is amended after a judgment
does not necessarily amount to legislative overruling.
109. At the same time, the Legislature cannot, under
the guise of amendment, simply declare that the law
declared by the Supreme Court shall no longer operate.
The distinction between altering the law and nullifying the
judgment has repeatedly been recognised by the Supreme
Court. The Karnataka Amendment undoubtedly alters the
statutory prescription by substituting the earlier regime
with a period of one hundred and twenty days. To that
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extent, the Legislature has exercised its legislative
competence.
110. However, if the amendment is construed as
completely excluding judicial discretion in every
conceivable case, such interpretation would directly collide
with the ratio of Salem Advocate Bar
Association(supra), which recognises judicial discretion
as an integral component of Order VIII Rules 1 and 10
read harmoniously. This Court is therefore of the view that
the constitutional validity of the amendment depends upon
its interpretation. If interpreted as excluding every judicial
discretion, serious constitutional questions would arise. If
interpreted as preserving judicial discretion in
exceptionally rare situations, the amendment can co-exist
with the law declared by the Hon'ble Supreme Court.
111. Point No.(i) is answered 'partly in the
affirmative' and 'partly in the negative'. It is answered
in the affirmative to the extent that Section 4 of
Amendment Act, departs from the statutory framework
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considered by the Hon'ble Supreme Court in Salem
Advocate Bar Association, Tamil Nadu v. Union of
India(supra) by prescribing an outer limit of one hundred
and twenty days for filing the written statement and by
substantially curtailing the discretion of the Civil Court. To
that extent, the amendment seeks to alter the legal
regime which formed the foundation of the decision in
Salem Advocate Bar Association(supra).
112. However, the point is answered in the negative
insofar as it is suggested that the State Legislature has
thereby overridden or nullified the law declared by the
Hon'ble Supreme Court under Article 141 of the
Constitution. The Legislature is undoubtedly competent to
amend the statutory provision and alter its legal basis, but
it cannot abrogate or efface the binding principles of law
declared by the Hon'ble Supreme Court. Consequently,
Section 4 cannot be construed as a legislative overruling of
Salem Advocate Bar Association(supra). It is
constitutionally sustainable only if read harmoniously with
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the law declared therein by preserving a narrowly confined
judicial discretion in exceptionally rare and deserving
cases through the doctrine of reading down.
Finding on Point No.(ii):
(ii) Whether the amendment takes away judicial
discretion recognised by the Hon'ble Supreme Court?
113. The answer to this point substantially flows
from the earlier discussion. The ratio of Salem Advocate
Bar Association(supra) does not rest merely upon the
figure of ninety days. The ratio rests upon preservation of
judicial discretion. The Hon'ble Supreme Court
harmoniously construed Order VIII Rule 1 with Rule 10. It
recognised that Rule 10 empowers the Court to make such
order as it thinks fit. Rule 10 in its original form continues
to remain part of the Code, with an inclusion of a proviso.
114. The Amendment Act has not amended Rule 10
of Order VIII. Rule 10 continues to authorise the Court
that where a written statement is not presented within the
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time permitted or fixed by the Court, it may "pronounce
judgment against him or make such order in relation to
the suit as it thinks fit.". Equally, Section 151 which
continues to preserve inherent powers of the Civil Court to
secure the ends of justice. Therefore, the Court cannot
interpret Rule 1 in complete isolation. Such interpretation
would destroy the harmonious scheme recognised by the
Hon'ble Supreme Court. This Court accordingly holds that
the discretion recognised in Salem Advocate Bar
Association(supra) continues to survive notwithstanding
the Amendment Act, though its exercise shall be even
more circumscribed having regard to the legislative
emphasis upon expeditious disposal. Accordingly, Point
No.(ii) is answered in the 'affirmative.'
Finding on Point No.(iii):
(iii) Whether the Legislature can impose an
absolute embargo upon the inherent powers of the
Civil Court?
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115. Inherent powers preserved under Section 151
are not conferred by the Legislature. They are recognised
by the Code. They exist to prevent abuse of process and
to secure the ends of justice. The Hon'ble Supreme Court
has repeatedly held that procedural provisions cannot
altogether extinguish the Court's power to prevent failure
of justice. This Court is therefore of the opinion that the
expression "the Court shall not allow the written statement
to be taken on record" cannot receive a literal construction
completely excluding judicial power.
116. Such construction would produce manifest
conflict with Rule 10, Section 151 and the binding ratio of
the Hon'ble Supreme Court. The expression must
therefore be construed as directory except where the
defendant has been guilty of deliberate, intentional or
contumacious delay. Accordingly, Point No.(iii) is answered
in the 'negative'.
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Finding on Point No.(iv):
(iv) Whether the Legislature has created an
apparent inconsistency within the Code itself.
117. One significant feature of the impugned
amendment is that the Legislature has included only the
third proviso to Order V Rule 1 , third proviso to Rule 1
and proviso to Rule 10 of Order VIII while consciously
leaving untouched Order VIII Rule 10, Section 151 and the
statutory framework contained in Sections 122 to 127 of
the Code. This selective amendment assumes considerable
significance in construing the true legislative intent.
118. The Code of Civil Procedure is a self-contained
procedural enactment and its provisions must be read as
an integrated whole. It is a settled principle of statutory
interpretation that one provision cannot be construed in a
manner that renders another provision redundant or
otiose. Order VIII Rule 10 continues to preserve judicial
discretion by empowering the Court to "make such order
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in relation to the suit as it thinks fit." Likewise, Section
151 continues to preserve the inherent jurisdiction of the
Civil Court, while Sections 122 to 127 preserve the
statutory rule-making powers of the High Court.
119. The Hon'ble Supreme Court in Salem
Advocate Bar Association(supra) interpreted Order VIII
Rule 1 harmoniously with Order VIII Rule 10 and held
that, notwithstanding the prescribed time limit, the Court
retains a limited discretion to receive the written
statement in exceptional cases. Significantly, the
Legislature has not amended Order VIII Rule 10, nor has it
expressly excluded the operation of Section 151. Had it
intended to completely extinguish judicial discretion,
nothing prevented it from correspondingly amending those
provisions.
120. The Court is equally guided by the well-settled
principles that repeal by implication is not readily inferred
and that statutes must be interpreted so as to preserve
their internal consistency. A literal construction of the
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impugned proviso would substantially denude the
operation of Order VIII Rule 10 and Section 151, thereby
creating an apparent inconsistency within the Code itself.
121. This Court is, therefore, of the considered
opinion that the partial nature of the amendment itself
furnishes a compelling reason for adopting the doctrine of
harmonious construction. The third proviso to Order V Rule
1 cannot be read in isolation but must be construed
together with Order VIII Rule 10, Section 151 and
Sections 122 to 127 of the Code. Such an interpretation
alone preserves the coherence of the statutory scheme,
gives effect to every provision of the Code and maintains
consistency with the law declared by the Hon'ble Supreme
Court in Salem Advocate Bar Association(supra).
Consequently, the impugned proviso deserves to be read
down rather than read as imposing an absolute and
inflexible embargo. Accordingly, Point No.(iv) is answered
in the 'affirmative'.
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Finding on Point No.(v):
(v) Interpretation of the First Proviso to Order VIII
Rule 10.
122. The controversy arising under this point centres
around the legal effect of the first proviso to Order VIII
Rule 10, inserted by Section 4(iv)(d) of the Amendment
Act. The question is whether the Legislature, by merely
inserting the said proviso without correspondingly
amending the substantive part of Rule 10, has created an
inconsistency within the statutory framework of the Code
and whether the proviso is capable of being construed
harmoniously with the principal provision.
123. The first proviso inserted by the Amendment
Act provides that "no Court shall make an order to extend
the time provided under Rule 1 of this Order for filing of
the Written Statement." Significantly, while introducing
the said proviso, the Legislature has consciously left the
substantive provision of Rule 10 untouched. Rule 10
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continues to authorise the Court that where a written
statement is not presented within the time permitted or
fixed by the Court, it may "pronounce judgment against
him or make such order in relation to the suit as it thinks
fit." The Legislature has neither amended nor omitted
these enabling words which constitute the very source of
judicial discretion recognised by the Hon'ble Supreme
Court.
124. The settled principles governing the
interpretation of a proviso leave little room for doubt. A
proviso is ordinarily enacted to qualify, except or explain
the operation of the principal provision. It is not intended
to become an independent substantive enactment, much
less one that destroys the very provision to which it is
appended. A proviso operates in the same field as the
principal enactment and must receive a construction that
advances, and not defeats, the object of the substantive
provision. Unless the legislative intent is expressed in
unmistakable terms, a proviso cannot be interpreted so as
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to nullify, eclipse or render redundant the principal
enactment.
125. This principle has been consistently affirmed by
the Hon'ble Supreme Court. In Kedarnath Jute
Manufacturing Co. Ltd. v. Commercial Tax Officer,
AIR 1966 SC 12, the Constitution Bench observed that
the normal function of a proviso is to except or qualify
something which, but for the proviso, would fall within the
general language of the enactment. In A.N. Sehgal v.
Raje Ram Sheoran, 1992 Supp (1) SCC 304, the
Hon'ble Supreme Court authoritatively held that a proviso
cannot be torn apart from the main enactment nor can it
be employed to nullify by implication what the substantive
provision clearly enacts unless such consequence
necessarily flows from its language. The same principle
has been reiterated in Satnam Singh v. Punjab &
Haryana High Court 1997) 3 SCC 353, Balchanara
Anantrao Rakvi v. Ramchandra Tukaram AIR 2001
SC 3994, J.K. Industries Ltd. And others vs. Chief
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Inspector of Factories and Boilers and others (1996)
6 SCC 665, and more recently in X v. Office of the
Speaker of the House of People Writ Petition (Civil)
NO. 1233 of 2025, wherein the Hon'ble Supreme Court
reiterated that a proviso cannot be interpreted in a
manner that nullifies the provision to which it is appended
unless such legislative intention is manifest beyond doubt.
126. Tested on these well-settled principles, the first
proviso inserted to Rule 10 cannot be construed as
extinguishing the substantive jurisdiction expressly
preserved in Rule 10 itself. If the proviso is read literally
as an absolute prohibition against extension of time in
every conceivable case, the latter part of Rule 10
empowering the Court to "make such order in relation to
the suit as it thinks fit" would become wholly otiose. Such
an interpretation would render the substantive provision
meaningless while elevating the proviso into the principal
enactment. This is precisely what the law relating to
interpretation of provisos prohibits. A construction which
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permits the proviso to consume the principal provision
cannot be accepted.
127. The inconsistency becomes even more apparent
when Rule 10 is viewed in the light of the authoritative
pronouncement of the Hon'ble Supreme Court in Salem
Advocate Bar Association, Tamil Nadu v. Union of
India(supra). In that landmark decision, the Hon'ble
Supreme Court harmoniously construed Order VIII Rules 1
and 10 and unequivocally held that the discretion
preserved under Rule 10 enables the Court, in exceptional
circumstances, to receive the written statement beyond
the prescribed period where the ends of justice so require.
The said principle has thereafter been consistently
reiterated in Kailash v. Nanhku (supra), R.N. Jadi &
Brothers (supra), Desh Raj (supra), Atcom
Technologies Ltd. (supra) and Bharat Kalra (supra).
The discretion recognised in these judgments is not judge-
made, it emanates directly from the language employed in
Rule 10.
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128. If the newly inserted proviso is construed as
completely prohibiting the exercise of such discretion, it
would, in effect, nullify the very ratio laid down by the
Hon'ble Supreme Court in Salem Advocate Bar
Association (supra) and the long line of decisions that
have consistently followed it. Such a construction cannot
be accepted. The Legislature undoubtedly possesses
competence to amend the law. Equally well settled,
however, is the principle that unless the substantive
statutory foundation itself is altered, an amendment
cannot be interpreted in a manner that renders nugatory
the binding declaration of law under Article 141 of the
Constitution. In the present case, the Legislature has
inserted only a proviso without amending the substantive
part of Rule 10. Therefore, the proviso cannot be accorded
an interpretation which effectively obliterates the statutory
discretion that continues to be expressly preserved in the
principal provision and has repeatedly received
authoritative exposition from the Hon'ble Supreme Court.
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129. This Court is, therefore, of the considered
opinion that the first proviso to Order VIII Rule 10, if
construed as imposing an absolute embargo upon the Civil
Court from exercising any discretion whatsoever after the
expiry of one hundred and twenty days, would not only
create an irreconcilable inconsistency within Rule 10 itself
but would also run contrary to the law declared by the
Hon'ble Supreme Court in Salem Advocate Bar
Association (supra) and the subsequent decisions
reiterating the said principle. Such a construction would
permit the proviso to destroy the substantive provision, a
consequence which is impermissible in law.
130. The inconsistency is, however, capable of being
resolved by applying the doctrine of harmonious
construction. The first proviso cannot be understood as
extinguishing the jurisdiction preserved under Rule 10. It
must instead be construed as reinforcing the legislative
mandate that extension of time beyond one hundred and
twenty days shall not be granted in the ordinary course or
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as a matter of routine. The substantive discretion under
Rule 10 survives, albeit within a narrowly confined sphere,
and may be exercised only in exceptionally rare and
compelling circumstances, strictly in accordance with the
principles, safeguards and illustrative guidelines
formulated in this judgment. Such an interpretation alone
preserves the legislative object of expeditious disposal,
gives meaningful effect to both the substantive provision
and the proviso, maintains fidelity to the law declared by
the Hon'ble Supreme Court under Article 141 of the
Constitution and avoids the constitutional infirmity that
would otherwise arise.
131. This Court also considers it appropriate to
advert to the evolution of the law governing the filing of
written statements under the Code. The Central
Amendment Act, 2002 introduced a stringent time frame
under Order VIII Rule 1 by prescribing an outer limit of
ninety days and employing language suggestive of
forfeiture of the defendant's right to file the written
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statement. The constitutional validity and interpretative
scope of the said amendment came to be authoritatively
examined by the Hon'ble Supreme Court in Salem
Advocate Bar Association, Tamil Nadu (supra),
wherein the Court, while recognising the legislative intent
of expediting civil trials, harmoniously construed Order
VIII Rules 1 and 10 and held that though the prescription
of time under Rule 1 is mandatory in its application, the
consequence of non-compliance is not absolute, as Rule 10
preserves a limited judicial discretion to receive the
written statement in exceptional and deserving cases. The
said exposition has thereafter attained finality and has
been consistently reiterated in Kailash v. Nanhku
(supra), R.N. Jadi & Brothers (supra), Desh Raj
(supra), Atcom Technologies Ltd. (supra) and Bharat
Kalra (supra). The Amendment Act, while introducing the
third proviso to Order V Rule 1 and simultaneously
inserting the first proviso to Order VIII Rule 10, appears to
embody, in substance, an attempt to reintroduce an
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absolute consequence akin to that which stood judicially
interpreted and harmonised by the Hon'ble Supreme Court
under the Central Amendment. However, significantly, the
Legislature has not amended the substantive part of Rule
10 itself, which continues to empower the Court to "make
such order in relation to the suit as it thinks fit." In these
circumstances, this Court is of the considered view that, in
order to preserve the legislative objective of procedural
discipline without unsettling the binding law declared
under Article 141 of the Constitution, and equally to
safeguard the larger interests of litigants and the
institution of justice, the only constitutionally permissible
course is to read down the conflicting expressions
contained in the third proviso to Order V Rule 1 and the
first proviso to Order VIII Rule 10, so that they operate in
harmony with the substantive scheme of the Code and the
authoritative pronouncements of the Hon'ble Supreme
Court.
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132. The proviso is therefore liable to be read
harmoniously with the substantive provision of Rule 10
and, to that limited extent, stands read down so as to
preserve the Court's jurisdiction to intervene only in
exceptionally rare and compelling cases where refusal to
receive the written statement would result in manifest
injustice or grave miscarriage of justice.
133. Accordingly, Point No. (v) is answered in the
'negative' by holding that the first proviso inserted to
Order VIII Rule 10 by Section 4(iv)(d) of the Amendment
Act cannot be construed as nullifying the substantive
discretion preserved under Rule 10 or the law declared by
the Hon'ble Supreme Court in Salem Advocate Bar
Association (supra) and the subsequent decisions.
Finding on Point No.(vi):
(vi) Whether the amendment adversely affects
litigants involved in rural property disputes?
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134. This Court finds considerable substance in the
submission advanced on behalf of the petitioners. Judicial
notice can legitimately be taken of the nature of civil
litigation pending before Courts in Karnataka.
135. The impugned amendment undoubtedly seeks
to achieve the laudable object of expeditious disposal of
civil suits by prescribing an outer limit of one hundred and
twenty days for filing the written statement. Speedy
disposal of litigation is an important facet of the
administration of justice and no fault can be found with
the legislative objective. However, constitutional validity of
a procedural enactment is tested not merely by the object
sought to be achieved, but equally by the means adopted
to achieve that object.
136. The significant departure brought about by the
impugned amendment lies not in extending the period
from ninety days to one hundred and twenty days, but in
the latter part of the proviso, which provides that upon
expiry of one hundred and twenty days, "the defendant
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shall forfeit the right to file the written statement and the
Court shall not allow the written statement to be taken on
record." These expressions, if literally construed, leave no
room whatsoever for judicial discretion, irrespective of the
facts and circumstances of an individual case.
137. The inevitable consequence of such an
interpretation is that the Civil Court is rendered powerless
even where the delay is occasioned by circumstances
entirely beyond the control of the defendant. The Court
would be compelled to shut out the defence
notwithstanding the existence of exceptional
circumstances warranting judicial indulgence. Such a
consequence strikes at the very heart of procedural
fairness.
138. The Code of Civil Procedure has always
recognised that procedural law cannot anticipate every
factual situation that may arise before a Court. It is for
this reason that Section 151 preserves the inherent
powers of every Civil Court to make such orders as may be
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necessary for the ends of justice or to prevent abuse of
the process of the Court. Though inherent powers cannot
override an express statutory prohibition, they constitute
an indispensable reservoir of judicial authority enabling
Courts to meet situations where rigid adherence to
procedure would itself occasion injustice.
139. If the impugned proviso is interpreted as
completely excluding the jurisdiction of the Court after
expiry of one hundred and twenty days, the inherent
powers preserved under Section 151 become substantially
denuded in relation to one of the most vital stages of a
civil proceeding. The Trial Court would have no option
except to reject every request for receiving a written
statement, however genuine the explanation may be. Such
an interpretation would convert what has historically been
a judicial function into a purely mechanical exercise.
140. The consequences flowing from such forfeiture
are neither procedural nor insignificant. They directly
affect valuable civil rights. A written statement is not
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merely a formal pleading. It is the foundational document
through which the defendant traverses the plaintiff's
allegations, raises legal and factual defences, pleads
limitation, estoppel, res judicata, adverse possession, prior
partition, family arrangements, statutory bars, want of
cause of action and every other defence recognised by
law. Depriving a defendant of the opportunity to file a
written statement may ultimately result in a decree being
passed without the Court ever examining the defence on
merits.
141. The prejudice assumes far greater dimensions
in ordinary civil litigation concerning immovable
properties. A substantial number of civil suits instituted
before Trial Courts in this State relate to agricultural lands,
partition, declaration of title, possession, easementary
rights, village houses and vacant sites situated within the
jurisdiction of Gram Panchayats. In such cases, the
defence invariably depends upon numerous public
documents maintained by different revenue authorities,
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including RTC extracts, mutation entries, Tippani records,
survey sketches, phodi proceedings, grant registers and
village maps. Procurement of these records often requires
approaching several public offices and is dependent upon
administrative processes beyond the immediate control of
the litigant.
142. Judicial notice can legitimately be taken of the
practical realities prevailing in rural Karnataka. Despite
considerable digitisation of land records, a large volume of
historical revenue records continues to remain in physical
custody of revenue authorities. Survey records, old grant
files, Tippani extracts and village maps are not always
readily accessible. Litigants are frequently required to
make repeated visits to Taluk Offices, Survey Departments
and Village Accountant offices to obtain certified copies.
Administrative delays in securing such documents are
neither uncommon nor attributable to the negligence of
litigants.
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143. The impugned amendment, if interpreted
literally, makes no distinction between a litigant who
deliberately protracts adopting dilatory methods and
another who, despite exercising due diligence, is unable to
secure indispensable public records within one hundred
and twenty days. Both stand visited with the same drastic
consequence of forfeiture. Such an indiscriminate
consequence is manifestly disproportionate to the object
sought to be achieved.
144. The amendment also produces anomalous
situations. There may be cases where proceedings remain
stayed by a superior Court, where applications under
Section 10 of the Code are pending, where substitution of
legal representatives intervenes, where records are
summoned from another Court, or where a defendant is
prevented from filing the written statement by
circumstances such as prolonged illness, natural calamity
or reasons beyond his control. A literal application of the
proviso would compel the Trial Court to ignore all such
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circumstances and mechanically reject the written
statement. Such an interpretation would reduce the
judicial process to a ritual divorced from the demands of
justice.
145. Equally significant are the practical
consequences flowing from a literal construction of the
impugned proviso. Such an interpretation would operate
indiscriminately against every defendant irrespective of
the cause for delay. It would visit with identical
consequences a litigant who deliberately delays the
proceedings and another who, despite exercising utmost
diligence, is prevented from filing the written statement by
circumstances wholly beyond his control. Cases of
prolonged illness, hospitalisation, legal disability, death of
a party, delayed substitution of legal representatives,
natural calamities, military service, judicial custody,
inability to secure indispensable public records or other
compelling circumstances would all stand visited with the
same irreversible consequence of forfeiture. In ordinary
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civil litigation, particularly disputes relating to agricultural
lands, ancestral properties, village houses, Gram
Panchayat sites and other immovable properties where
procurement of revenue and survey records often depends
upon administrative authorities, such an interpretation
would inevitably result in shutting out genuine defences
and compelling Courts to determine valuable civil rights
without considering the defence on merits. Procedure,
intended to facilitate justice, would thereby become the
instrument of injustice.
146. Another significant consequence is that the
amendment substantially impairs the harmonious
operation of Order VIII Rule 10. While Rule 10 continues
to empower the Court to pronounce judgment or to make
such order in relation to the suit as it thinks fit, the
impugned proviso, if construed literally, would leave the
Court with no meaningful discretion once one hundred and
twenty days expire. Such an interpretation renders the
discretionary language employed in Rule 10 largely otiose
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and disturbs the harmonious scheme of Order VIII
recognised by the Hon'ble Supreme Court in Salem
Advocate Bar Association(supra).
147. The Court cannot also overlook the broader
constitutional implications. Access to justice is a facet of
Article 14 of the Constitution. Fair procedure is not
confined to criminal jurisprudence alone; it equally
permeates civil adjudication. A procedure which invariably
forecloses the defence irrespective of the circumstances of
the case may, in exceptional situations, defeat rather than
advance the cause of justice. Procedural efficiency,
however desirable, cannot eclipse the fundamental
requirement that every litigant must receive a fair
opportunity of presenting his case.
148. The legislative object of securing speedy
disposal can be effectively achieved without altogether
extinguishing judicial discretion. The two objectives are
not mutually exclusive. Trial Courts can insist upon strict
compliance with the prescribed timeline, discourage
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dilatory tactics, impose realistic costs, insist upon
satisfactory explanations and confine extension beyond
one hundred and twenty days to the rarest and most
exceptional cases. Such an interpretation preserves the
legislative intent while simultaneously ensuring that
procedure remains an aid to justice rather than an
instrument of injustice. Accordingly, Point No.(vi) is
answered in the 'affirmative'.
Finding on Point No.(vii):
(vii) Whether Section 158A of the Amendment Act
is consistent with the scheme of Sections 122 to 127
of the Code relating to the rule-making power of the
High Courts?
149. Considerable arguments were advanced
regarding newly inserted Section 158A. Before parting
with the matter, it is necessary to briefly advert to the
challenge to newly inserted Section 158A. In the
considered opinion of this Court, Section 158A cannot be
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construed as conferring overriding supremacy upon the
Amendment Act so as to eclipse the statutory rule-making
powers of the High Court preserved under Sections 122 to
127 of the Code, nor can it be interpreted as curtailing the
constitutional jurisdiction of this Court under Articles 225
and 227 of the Constitution or as authorising departure
from the law declared by the Hon'ble Supreme Court
under Article 141. The provision is therefore liable to be
harmoniously construed with the scheme of the Code and,
to that extent, stands read down. Any apparent conflict
between the State amendment and the High Court Rules
shall be resolved by applying the doctrine of harmonious
construction and not by implying repeal or abrogation of
the statutory rule-making powers of the High Court.
150. Since this Court has adopted a harmonious
construction preserving the constitutional validity of the
amendment, it becomes unnecessary to pronounce upon
the larger constitutional validity of Section 158A. Suffice it
to observe that Section 158A cannot be construed so as to
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dilute either Sections 122 to 127 of the Code; the
constitutional powers of the High Court, or the binding law
declared under Article 141. The provision shall necessarily
operate subject to those constitutional limitations.
Accordingly, Point No.(vii) is answered in the 'negative'.
Finding on Point No.(viii):
(viii) Whether the amendment deserves to be read
down?
151. While the legislative endeavour to secure
expeditious disposal of civil proceedings undoubtedly
deserves judicial deference, the phenomenon of mounting
arrears in the justice delivery system cannot be viewed
through the narrow prism of procedural timelines alone.
Judicial delay is a systemic challenge arising from a
confluence of institutional, infrastructural and
administrative deficiencies which extend far beyond the
conduct of individual litigants. The prescription of rigid
procedural timelines, though capable of fostering discipline
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in litigation, cannot by itself achieve the constitutional
promise of timely justice unless accompanied by
corresponding strengthening of the justice delivery
infrastructure.
152. It is a matter of judicial notice that in several
districts across the State, a significant number of Courts
remain vacant for considerable periods owing to delays in
the recruitment process and in filling vacancies occasioned
by retirement, resignation, promotion or elevation. The
burden cast upon the serving judicial officers is
consequently multiplied, compelling many of them to hold
concurrent charge of more than one Court or to function
as itinerant judicial officers by periodically sitting in
neighbouring stations to discharge judicial work. Such an
arrangement, though necessitated by administrative
exigencies, inevitably reduces the effective number of
working days available for each Court and correspondingly
affects the pace of adjudication.
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153. The problem is further aggravated by
inadequate judicial infrastructure. In several court
complexes, the availability of court halls, chambers, record
rooms, digital infrastructure and supporting ministerial
staff remains far below the requirements of an expanding
docket. Equally significant is the inadequacy of residential
accommodation for judicial officers. The absence of
independent judicial quarters at many stations not only
affects the willingness of officers to serve in difficult
postings but also has a bearing upon the efficient
discharge of judicial functions. These institutional
constraints are neither illusory nor incidental; they have a
direct and measurable impact upon case disposal.
154. The causes contributing to docket explosion
are, therefore, multifaceted. The ever-increasing volume
of litigation arising from expanding commercial activity,
urbanisation and socio-economic transformation; repeated
adjournments sought by parties; delays in service of
summons and execution of warrants; transfer of judicial
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officers; inadequate supporting staff; delay in securing
expert reports and official records from Government
departments; prolonged vacancies in the judicial service;
and the limited availability of court infrastructure
collectively contribute to the accumulation of arrears.
Pendency is thus not the product of any single procedural
deficiency but the cumulative consequence of several
structural impediments operating simultaneously within
the justice delivery system.
155. It must also be borne in mind that Article 21 of
the Constitution guarantees not merely speedy justice but
fair justice. Expedition cannot be pursued by sacrificing
procedural fairness, just as procedural fairness cannot
become a pretext for interminable delay. The
constitutional objective is to secure both. That balance can
be meaningfully achieved only when procedural reforms
enacted by the Legislature are complemented by sustained
institutional investment in the justice delivery system
through timely recruitment to the judicial service, prompt
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filling of consequential vacancies, augmentation of court
infrastructure, creation of adequate judicial and ministerial
posts, provision of modern technological facilities,
strengthening of support services and adequate budgetary
allocation in consultation with the High Court. Procedural
discipline and institutional capacity are complementary,
not competing, components of an effective administration
of justice. Unless both progress in tandem, the
constitutional aspiration of reducing arrears and securing
timely adjudication will remain only partially fulfilled.
156. The Court would therefore fail in its
constitutional duty if it ignores these realities while
interpreting a procedural statute. Fair opportunity of
defence remains an indispensable component of civil
adjudication.
157. For all the aforesaid reasons, this Court is of the
considered opinion that the third proviso to Order V Rule 1
and proviso to Rule 1 and 10 of Order VIII of the Code of
Civil Procedure, as inserted by Section 4 of the
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Amendment Act, cannot be construed as imposing an
absolute and inflexible embargo upon the Civil Court from
receiving a written statement beyond the outer limit of
one hundred and twenty days. Such a literal construction
would not only render the proviso susceptible to the vice
of arbitrariness under Article 14 but would also bring it
into direct conflict with Order VIII Rule 10, Section 151,
Sections 122 to 127 of the Code, and the binding
principles declared by the Hon'ble Supreme Court in
Salem Advocate Bar Association(supra),
Kailash(supra), R.N. Jadi(supra), Desh Raj(supra) and
the subsequent line of authorities. To preserve the
constitutional validity of the enactment, uphold the
legislative objective of expeditious disposal, maintain the
integrity of the procedural scheme of the Code and
prevent grave miscarriage of justice in exceptionally rare
cases, the third proviso to Order V Rule 1 necessarily
warrants the application of the Doctrine of Reading Down.
Accordingly, the expressions "the defendant shall forfeit
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the right to file the written statement" and "the Court shall
not allow the written statement to be taken on record"
shall be construed as directory only to the limited extent
indicated in this judgment, preserving a narrowly
circumscribed judicial discretion exercisable only in
exceptional and compelling circumstances, strictly in
accordance with the principles formulated herein.
158. This Court answers point No.(viii) in the
'Affirmative'. Reading down becomes necessary for more
than one reason. Firstly, it preserves legislative intent.
Secondly, it avoids constitutional invalidation. Thirdly, it
maintains consistency with Article 141. Fourthly, it
harmonises Rules 1 and 10 Order VIII of Code of Civil
Procedure. Lastly, it secures procedural fairness.
159. Consequently, this Court holds that the
expression "the defendant shall forfeit the right" and "the
Court shall not allow the written statement to be taken on
record" cannot be understood as creating an inflexible and
absolute prohibition applicable irrespective of facts and
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circumstances. The said expressions shall instead be
construed to mean that ordinarily the Trial Court shall not
receive the written statement after expiry of one hundred
and twenty days. Departure from the rule shall remain an
exception.
XX. Parameters Governing Exercise of Judicial
Discretion
160. Having read down the provision, it becomes
necessary to indicate the parameters governing exercise of
discretion. Extension beyond one hundred and twenty
days shall never be granted routinely. Mere negligence,
inadvertence, oversight or administrative convenience
shall not constitute sufficient cause. The defendant must
establish circumstances which are genuinely exceptional
and beyond his control. Illustratively prolonged illness;
natural calamities; delay in obtaining indispensable public
documents; circumstances rendering appearance
impossible despite due diligence; or other causes of
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comparable gravity. The burden shall lie entirely upon the
defendant. The Trial Court shall record detailed reasons.
161. Appropriate and realistic costs shall ordinarily
be imposed. Repeated adjournments shall not be granted.
The discretion shall be exercised only where refusal would
result in grave failure of justice. The Trial Court must also
consider whether the defendant has acted bona fide and
with due diligence throughout the proceedings. Thus, while
the legislative mandate prescribing one hundred and
twenty days shall ordinarily govern all civil suits, the
constitutional obligation of Courts to prevent miscarriage
of justice remains preserved in exceptionally rare cases.
Such interpretation, in the considered opinion of this
Court, simultaneously advances the object of speedy
disposal and the constitutional guarantee of fair
adjudication. The doctrine of reading down thus enables
this Court to preserve the validity of the Amendment Act
while ensuring that the salutary principles declared by the
Hon'ble Supreme Court in Kailash(supra), Salem
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Advocate Bar Association(supra), R.N. Jadi, Desh
Raj(supra), Shoraj Singh(supra) and Bharat
Kalra(supra) continue to guide the exercise of judicial
discretion in the rarest of deserving cases. The operative
directions shall accordingly follow.
XXI. Directions to the Trial Courts
162. In order to ensure uniform implementation
throughout the State, the following directions are issued:
(i) Every Trial Court shall endeavour to ensure
strict adherence to the legislative timeline prescribed
under amended third proviso to Order V Rule 1 and
third proviso to Rule 1 of Order VIII.
(ii) Applications seeking acceptance of written
statements beyond one hundred and twenty days
shall be entertained only in exceptional
circumstances.
(iii) The Trial Court shall record detailed
reasons demonstrating why the case falls within the
exceptional category.
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(iv) The Trial Court shall consider whether the
defendant has acted bona fide, diligently and without
intention to protract the proceedings.
(v) Realistic and deterrent costs shall ordinarily
accompany every order extending time.
(vi) The discretion recognised by this judgment
shall not be exercised mechanically or routinely so as
to dilute the legislative object underlying the
Amendment Act.
(vii) The Trial Court shall remain conscious that
the power preserved by this judgment is an equitable
jurisdiction intended only to prevent grave injustice
and not to encourage procedural indiscipline.
XXII. Concluding Reflections:
163. For the reasons recorded hereinabove, this
Court is of the considered opinion that the challenge
mounted by the petitioners cannot be accepted in its
entirety. The Karnataka Legislature undoubtedly possesses
legislative competence under Entry 13 of List III of the
Seventh Schedule to amend the Code of Civil Procedure in
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its application to the State. Equally, the legislative
objective of ensuring expeditious disposal of civil disputes
by prescribing a definite time frame for filing the written
statement is constitutionally legitimate and advances an
important public purpose. Courts cannot lose sight of the
pressing need to introduce procedural discipline in civil
litigation. The prescription of an outer limit of one hundred
and twenty days, by itself, therefore, does not suffer from
any constitutional infirmity.
164. The constitutional difficulty, however, arises
from the latter part of the impugned proviso's, which
declares that upon expiry of one hundred and twenty
days, the defendant shall forfeit the right to file the written
statement and that the Court shall not permit the written
statement to be taken on record. If these expressions are
construed literally and in absolute terms, they would have
the effect of completely extinguishing the limited judicial
discretion which the Hon'ble Supreme Court has
consistently recognised in Kailash v. Nanhku(supra),
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Salem Advocate Bar Association, Tamil Nadu v.
Union of India(supra), R.N. Jadi & Brothers(supra),
Desh Raj(supra), Shoraj Singh(supra) and Bharat
Kalra(supra). The true ratio of these decisions is not
confined to the numerical prescription of ninety days under
the unamended provision; rather, it lies in the principle
that procedural prescriptions governing filing of written
statements must be harmoniously construed with Order
VIII Rule 10 so as to preserve judicial discretion in
exceptional cases where refusal to exercise such discretion
would result in manifest injustice.
165. This Court also finds considerable merit in the
submission of the petitioners that the Legislature has
amended only one limb of the statutory framework by
incorporating in a proviso while consciously leaving
untouched Order VIII Rule 10, Section 151 of the Code.
Order VIII Rule 10 continues to authorise the Civil Court to
"make such order in relation to the suit as it thinks fit".
Section 151 continues to preserve the inherent powers of
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the Civil Court to secure the ends of justice, while Sections
122 to 127 continues to preserve the statutory rule-
making powers of the High Court. These provisions
constitute an integral part of the Code and cannot be
rendered redundant by implication. The partial nature of
the amendment itself furnishes a compelling reason for
adopting the doctrine of harmonious construction. Any
interpretation that renders these provisions otiose would
offend settled principles of statutory interpretation and
create an avoidable inconsistency within the Code itself.
166. The evolution of Order VIII Rules 1 and 10
vividly demonstrates this constitutional balance. The
Central Amendment Act, 2002 introduced an outer time
limit coupled with language suggestive of forfeiture of the
defendant's right to file a written statement. While
upholding the legislative intent of ensuring procedural
discipline, the Hon'ble Supreme Court in Salem Advocate
Bar Association (supra) harmoniously construed Rules 1
and 10 and held that the prescription of time could not be
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interpreted as completely extinguishing the Court's
jurisdiction under Rule 10 to receive a written statement in
exceptional cases. That principle has remained the
governing law for more than two decades and has been
consistently reaffirmed in a long line of authoritative
pronouncements. The Amendment Act, by introducing the
third proviso to Order V Rule 1 and the first proviso to
Order VIII Rule 10 without correspondingly amending the
substantive part of Rule 10, substantially revisits the very
question which stood answered by the Hon'ble Supreme
Court. Such provisions cannot, therefore, be interpreted so
as to nullify the statutory discretion preserved under Rule
10 or efface the law declared by the Hon'ble Supreme
Court. The constitutional duty of this Court is to preserve
legislative intent while simultaneously maintaining strict
adherence to the binding precedents of the Hon'ble Apex
Court.
167. The present batch of petitions has afforded this
Court an opportunity to revisit the evolution of the law
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governing the filing of written statements under the Code
of Civil Procedure. The Central Amendment Act, 2002
introduced a stringent timeline under Order VIII Rule 1
accompanied by language suggestive of forfeiture of the
defendant's right to file the written statement. However,
the Hon'ble Supreme Court, in the landmark decision in
Salem Advocate Bar Association (supra), while giving
due weight to the legislative objective of expeditious
disposal of civil suits, harmoniously construed Order VIII
Rules 1 and 10 and authoritatively held that although
procedural timelines are to be strictly adhered to, the
discretion preserved under Rule 10 survives to be
exercised in exceptional and deserving cases. That
exposition of law has, for more than two decades,
consistently guided the administration of civil justice and
has been reiterated in Kailash (supra), R.N. Jadi &
Brothers (supra), Atcom Technologies (supra), Desh
Raj (supra) and Bharat Kalra (supra). The Amendment
Act, by incorporating the third proviso to Order V Rule 1
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and the first proviso to Order VIII Rule 10, substantially
revisits the very consequence which stood authoritatively
interpreted by the Hon'ble Supreme Court. Yet, the
Legislature has consciously refrained from amending the
substantive part of Rule 10, which continues to empower
the Court to "make such order in relation to the suit as it
thinks fit." The newly inserted proviso, if construed as an
absolute prohibition, would not merely render the
substantive provision otiose but would also virtually
neutralise the law declared by the Hon'ble Supreme Court
under Article 141 of the Constitution. It is precisely to
avoid such a consequence that this Court has invoked the
doctrine of harmonious construction and the principle of
reading down, thereby preserving the legislative intent of
ensuring procedural discipline while simultaneously
maintaining the limited judicial discretion recognised by
the Hon'ble Supreme Court as indispensable to prevent
manifest injustice in exceptional cases. Such an
interpretation alone preserves the constitutional validity of
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the Amendment Act, maintains the internal coherence of
the Code, upholds the binding precedents of the Hon'ble
Supreme Court, and ultimately serves the larger interests
of litigants as well as the institution of justice.
168. Equally significant are the practical
consequences flowing from a literal construction of the
impugned proviso. Such an interpretation would operate
indiscriminately against every defendant irrespective of
the cause for delay. It would visit with identical
consequences a litigant who deliberately delays the
proceedings and another who, despite exercising utmost
diligence, is prevented from filing the written statement by
circumstances wholly beyond his control. Cases of
prolonged illness, hospitalisation, legal disability, death of
a party, delayed substitution of legal representatives,
natural calamities, military service, judicial custody,
inability to secure indispensable public records or other
compelling circumstances would all stand visited with the
same irreversible consequence of forfeiture. In ordinary
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civil litigation, particularly disputes relating to agricultural
lands, ancestral properties, village houses, Gram
Panchayat sites and other immovable properties where
procurement of revenue and survey records often depends
upon administrative authorities, such an interpretation
would inevitably result in shutting out genuine defences
and compelling Courts to determine valuable civil rights
without considering the defence on merits. Procedure,
intended to facilitate justice, would thereby become the
instrument of injustice.
169. Yet another significant anomaly that appears to
have escaped the attention of the Legislature while
introducing the third proviso to Order V and proviso to
Rule 10 of Order VIII by the Amendment Act is its failure
to account for the statutory mandate contained in Section
89 of the Code. Section 89 obligates the civil court to
make every endeavour to facilitate an amicable settlement
of all civil disputes, particularly in suits involving family
members, where preservation of familial relationships
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assumes greater significance than expeditious
adjudication. In such proceedings, delay in filing the
written statement may legitimately arise on account of
bona fide settlement negotiations undertaken either at the
instance of the parties or under the guidance of the Court.
If the amended proviso is construed as prescribing an
absolute and inflexible embargo against receiving a written
statement beyond the stipulated period, irrespective of
ongoing settlement efforts, it would not only frustrate the
very object of Section 89 but also deprive the civil court of
its inherent discretion to extend time in exceptional cases
where such extension would advance the cause of justice
and facilitate reconciliation. The amendment, therefore,
overlooks a distinct class of civil litigation in which
procedural flexibility is indispensable for effectuating the
legislative policy of promoting consensual resolution of
disputes. This omission constitutes yet another compelling
reason for holding that the amended proviso cannot be
interpreted as completely denuding the Court of its
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inherent jurisdiction to extend the time for filing the
written statement in deserving cases where the ends of
justice so demand.
170. An equally significant aspect that merits
emphasize concerns the application of the amended
provisions to suits of partition. The procedural rigour
introduced by the Amendment Act cannot be applied in a
manner that defeats substantive rights, particularly in
suits for partition where rights flow by birth under the
substituted Section 6 of the Hindu Succession Act, 1956. A
daughter, whether married or unmarried, or a sister who
is impleaded as a defendant in a partition suit instituted by
a male coparcener, cannot be denied an opportunity to
place her claim on record solely on the ground that the
written statement is tendered beyond the prescribed
period of one hundred and twenty days. It is well settled
that where only the plaintiff seeks the relief of partition
and none of the defendants have sought such relief by
filing a written statement coupled with payment of the
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requisite court fee, the suit, in the strict sense, is confined
to the plaintiff's claim for separation of his share. The pre-
existing coparcenary rights of the other coparceners,
including daughters, do not stand extinguished merely
because they have not filed a written statement within the
stipulated period. The right to seek partition is a
continuing and recurring cause of action and, in law, such
a defendant is not precluded from instituting an
independent suit seeking partition of the remaining joint
family properties. If the Court were to mechanically reject
the written statement by applying the statutory timeline
without retaining any measure of judicial discretion, it
would inevitably drive such a coparcener to institute a
fresh suit, resulting in multiplicity of proceedings,
inconsistent decrees and avoidable burden on the justice
delivery system. Such a consequence would neither
advance the object of expeditious adjudication nor serve
the ends of justice. It is, therefore, imperative that the
limited judicial discretion preserved by this judgment be
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exercised in appropriate partition suits to receive a written
statement beyond the prescribed period where refusal to
do so would compel a coparcener, particularly an illiterate,
uninformed or otherwise disadvantaged daughter or sister
possessing a substantive right by birth, to embark upon
another round of litigation for enforcement of the very
same right.
171. Yet another aspect which merits serious
consideration is the interplay between the newly inserted
third proviso to Order V and the scheme of Order VIII Rule
10 of the Code. The amendment proceeds on the
assumption that every defendant is capable of filing a
written statement within the prescribed period. Such an
assumption, however, overlooks a distinct class of
litigants, namely minors and persons of unsound mind,
whose interests are protected under the Code through the
appointment of a guardian or next friend. In suits
instituted against a minor or a person of unsound mind,
the written statement cannot be filed unless a guardian ad
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litem is appointed by the Court and such guardian accepts
the appointment. The process of appointment, issuance of
notice to the proposed guardian, acceptance of
guardianship, and obtaining necessary instructions
inevitably consumes time, which is often beyond the
control of the defendant. To illustrate, where a partition
suit is instituted against a minor coparcener, or a suit for
declaration is filed against a person suffering from mental
incapacity, the Court is under a statutory obligation to first
ensure due representation of such defendant before
requiring the filing of a written statement. If, during the
interregnum, the rigid outer limit prescribed by the third
proviso is allowed to operate mechanically, the valuable
rights of such vulnerable litigants may stand extinguished
without any fault attributable to them. Such a
consequence would be contrary not only to the protective
scheme embodied in Order XXXII of the Code but also to
the principles of natural justice. The Legislature, while
introducing the third proviso, has failed to carve out an
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exception for these special categories of litigants, thereby
overlooking situations where procedural timelines must
necessarily yield to the paramount requirement of
ensuring effective and meaningful representation. This
omission furnishes an additional reason for holding that
the third proviso cannot be construed as an absolute bar
excluding the Court's inherent jurisdiction to extend the
time for filing the written statement in exceptional and
deserving cases.
172. Constitutional adjudication does not compel this
Court to invalidate every statutory provision merely
because one possible interpretation may render it
unconstitutional. Where a provision is reasonably capable
of an interpretation consistent with constitutional
principles, the Court is under a duty to adopt such
construction. The Doctrine Of Reading Down is founded
upon this salutary principle and maxim 'Ut Res Magis
Valeat Quam Pereat'. In the considered opinion of this
Court, the impugned amendment is capable of being
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harmoniously construed with the scheme of Order VIII
Rule 10, Section 151, Sections 122 to 127 of the Code and
the binding law declared by the Hon'ble Supreme Court
under Article 141 of the Constitution. Such an
interpretation preserves the legislative object of securing
expeditious disposal of civil disputes while simultaneously
safeguarding the constitutional guarantee of fair procedure
and effective access to justice.
173. Consequently, this Court holds that the third
proviso to Order V Rule 1 and proviso to Rule 10 of Order
VIII shall be understood as prescribing the ordinary rule
that every defendant shall file the written statement within
one hundred and twenty days from the date of service of
summons. However, the expressions "the defendant shall
forfeit the right to file the written statement" and "the
Court shall not allow the written statement to be taken on
record" cannot be construed as imposing an absolute and
inflexible prohibition. In exceptionally rare and deserving
cases, where the defendant establishes circumstances
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beyond his control despite exercising due diligence, and
where refusal to receive the written statement would
result in grave miscarriage of justice, the Civil Court shall
continue to possess a narrow and exceptional discretion to
receive the written statement, for reasons to be recorded
in writing and upon such terms, including realistic costs, as
the Court may deem fit. Such discretion shall not be
exercised routinely or mechanically, but only to prevent
manifest injustice and to advance the ends of justice.
174. Insofar as Section 158A Amendment Act, is
concerned, this Court holds that the said provision cannot
be interpreted as conferring overriding supremacy upon
the State amendment so as to eclipse the statutory rule-
making powers of the High Court preserved under Sections
122 to 127 of the Code, nor can it be construed as
curtailing the constitutional jurisdiction of this Court under
Articles 225 and 227 of the Constitution or authorising
departure from the binding law declared by the Hon'ble
Supreme Court under Article 141. Section 158A shall
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accordingly be read down and harmoniously construed as
operating subject to the statutory scheme of the Code, the
constitutional powers of the High Court and the binding
precedents of the Hon'ble Supreme Court.
175. Reading down is imperative to preserve the
constitutional validity of the impugned amendment while
simultaneously advancing the legislative object of
expeditious disposal of civil disputes. Such an
interpretation harmonises the third proviso to Rule 1
Order V, third proviso to Rule 1 of Order VIII with Rule 10
of Order VIII, Section 151 and the statutory framework
contained in Sections 122 to 127 of the Code, maintains
fidelity to the law declared by the Hon'ble Supreme Court
under Article 141 of the Constitution and preserves the
Court's limited jurisdiction to prevent manifest injustice in
exceptional cases.
176. To ensure uniform implementation of the
Amendment Act throughout the State, it is clarified that
the statutory period of one hundred and twenty days shall
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ordinarily be adhered to in every suit. Any departure
therefrom shall be permissible only in exceptional and
extraordinary circumstances beyond the control of the
defendant, upon proof of due diligence, for reasons to be
recorded in writing and ordinarily on payment of realistic
costs. Mere negligence, inaction, oversight or routine
administrative delay shall not constitute sufficient cause.
The discretion preserved by this judgment is intended
solely to prevent manifest injustice and shall be exercised
sparingly, cautiously and only in the rarest of deserving
cases, without diluting the legislative mandate of
expeditious disposal.
177. It is only by adopting the aforesaid construction
that the legislative object of expeditious disposal of civil
disputes, the institutional independence of the judiciary,
the harmonious operation of the Code of Civil Procedure
and the constitutional guarantee of fair procedure can
simultaneously be preserved.
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178. This Court deems it appropriate to observe that
procedural reform, however well-intentioned, cannot by
itself eradicate the problem of mounting judicial arrears.
The prescription of stringent timelines undoubtedly
promotes discipline in litigation, but expedition in the
administration of justice is as much a function of
institutional capacity as of procedural efficiency. Persistent
vacancies in the judicial service, inadequate court
infrastructure, shortage of ministerial staff, delays in
establishment of new Courts commensurate with the
increasing docket, and the necessity of judicial officers
holding concurrent charge of multiple Courts or functioning
as itinerant Courts are among the systemic factors that
substantially contribute to pendency. The constitutional
promise of speedy justice under Article 21 can be
meaningfully realised only when procedural reforms are
matched by corresponding augmentation of judicial
infrastructure and timely strengthening of the justice
delivery system. It is, therefore, imperative that the State
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Government, in close coordination and consultation with
the High Court on its administrative side, periodically
assess the existing judicial infrastructure, ensure
expeditious recruitment to anticipated vacancies, create
adequate court halls and residential accommodation for
judicial officers, and provide the necessary logistical and
technological support so that the laudable legislative
objective of expeditious disposal is translated into a
practical reality. Only then can the constitutional vision of
accessible, fair and timely justice be fully achieved.
179. Before parting, this Court considers it
appropriate to observe that procedural reform is
indispensable for restoring public confidence in the civil
justice system. The Legislature and the Judiciary are not
constitutional adversaries in that endeavour. They are
constitutional partners pursuing the same objective
through different institutional means. While the Legislature
prescribes procedural discipline, it remains the
constitutional duty of the Courts to ensure that such
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discipline does not, in exceptional situations, become an
instrument for denial of justice.
180. As Justice V.R. Krishna Iyer so felicitously
observed, procedural law is "not a tyrant but a servant;
not an obstruction but an aid to justice." That
philosophy continues to animate the Code of Civil
Procedure even after the Karnataka Amendment.
181. The Code of Civil Procedure is ultimately a
procedural charter for adjudication. It is not intended to
confer victory by default, but to facilitate adjudication
according to law. The constitutional promise is not merely
of speedy justice, but of speedy and fair justice. Both
objectives must coexist. One cannot eclipse the other.
182. Before parting with the matter, this Court also
considers it necessary to clarify the temporal operation of
the Amendment Act. The question as to whether the
amendment applies to suits instituted prior to its
commencement is no longer res integra. A Coordinate
Bench of this Court in Smt. T. Gayathri and Another v.
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Smt. Prabhajit Dhariwal (W.P. No.8090 of 2026,
decided on 17.03.2026) has authoritatively held that
the amendment is prospective in operation and is
applicable only to suits instituted on or after the date on
which the Amendment Act came into force. This Court is in
respectful agreement with the said view. Consequently,
the interpretation placed in the present judgment on the
amended provisions shall govern only those proceedings to
which the Amendment Act is otherwise applicable and shall
have no application to suits instituted prior to the
commencement of the said Amendment Act, which shall
continue to be governed by the unamended provisions of
the Code of Civil Procedure.
XXIII. Order
183. In view of the foregoing discussion, this Court
proceeds to pass the following:
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ORDER
(i) The writ petitions are allowed in part.
(ii) The third proviso inserted to Order V
Rule 1, third proviso inserted to Rule 1 of Order
VIII and proviso to Rule 10 of Order VIII of the
Code of Civil Procedure by Section 4 of the
Karnataka Amendment Act, 2024 is read down
in the manner indicated in paragraphs 131,
132, 157 and 158 of this judgment.
SPONSORED
(iii) Therefore the constitutional challenge
to Section 4 of the Code of Civil Procedure
(Karnataka Amendment) Act, 2024 is not
accepted.
(iv) The expressions “the defendant shall
forfeit the right to file the written statement”
and “the Court shall not allow the written
statement to be taken on record” shall not be
construed as completely excluding the judicial
discretion of the Civil Court in exceptionally
rare cases where refusal would result in grave
miscarriage of justice.
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(v) It is declared that Section 158-A of
the Code of Civil Procedure (Karnataka
Amendment) Act, 2024 shall be construed
harmoniously with the scheme of the Code of
Civil Procedure and shall not be interpreted as
overriding or abrogating the statutory rule-
making powers of the High Court preserved
under Sections 122 to 127 of the Code, the
constitutional jurisdiction of this Court under
Articles 225 and 227 of the Constitution, or the
binding law declared by the Hon’ble Supreme
Court under Article 141. To the aforesaid
extent, Section 158-A stands read down.
(vi) The jurisdiction preserved by this
judgment to receive a written statement
beyond the prescribed period shall be exercised
by all Civil Courts in the State only in strict
adherence to the principles, limitations and
illustrative guidelines contained in paragraph
162 of this judgment, and only upon recording
reasons demonstrating the existence of
exceptional and compelling circumstances.
(vii) It is further declared that the
provisions introduced by Section 4 of the Code
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of Civil Procedure (Karnataka Amendment) Act,
2024 shall operate prospectively and shall
apply only to suits instituted on or after the
date of commencement of the Amendment Act.
Suits instituted prior thereto shall continue to
be governed by the unamended provisions of
the Code of Civil Procedure, in terms of the law
declared by this Court in Smt. T.Gayathri and
Another v. Smt. Prabhajit Dhariwal (W.P.
No.8090 of 2026).
Before parting, this Court places on record its
sincere appreciation for the valuable research assistance
rendered by Ms. Varsha.V and Ms. Anuja Malai, Law
Researchers attached to this Court.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CA, ALB
CT:BCK
LIST NO.: 19 SL NO.: 1
