• Filing replication post issue framing

Dear Sir,
           I filed a divorce on 18th July, 2012 in Distt. Court Bhiwani. My wife leveled false and serious allegations against me and my parents in her statement. My lawyer was a corrupt one and also the judge. I do not know if my lawyer refused to file replication or the judge took decision not to accept replication herself. The judge was removed by giving compulsory retirement on corruption charges and also  I changed my lawyer. My new lawyer want to file replication but the new judge  to ready to accept the replication post issue framing. The new judge has given us three days time till 24th March, 2014 to produce any authority which shows clearly acceptance of replication after issue framing. Please help me in this regard at earliest.
                 Thanking You,

Yours sincerely,
Ashwnai Kumar Jangra
Asked 2 years ago in Family Law from Bhiwani, Haryana
Religion: Hindu
Replication post framing can be filed with only the permission of court. You have already engaged a new counsel who will do the needful.
Ashish Davessar
Advocate, Jaipur
18266 Answers
450 Consultations
5.0 on 5.0
you have engaged a lawyer . paid his fees . he has to search for authorities   that replication can be filed with   after framing of issues . in the interest of justice court could permit you to file replication on payment of costs
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
5.0 on 5.0
Punjab-Haryana High CourtPunjab-Haryana High CourtMrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012Civil Revision No. 3188 of 2010 [1]IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARHCivil Revision No. 3188 of 2010 (O&M)Date of decision: January 23, 2011Mrs. Ramesh Rani.. Petitionerv.Shri Raman Kumar Goyal and another.. RespondentsCORAM: HON'BLE MR. JUSTICE RAJESH BINDALPresent: Mr. Mandeep S. Sachdev, Advocate for the petitioner.Mr. Chetan Mittal, Senior Advocate withMr. Kapil Aggarwal, Advocate for the respondents....Rajesh Bindal J.1. The plaintiff is before this court aggrieved against the order dated 1.2.2010 passed by the court belowwhereby the suit filed by her was dismissed under Order 10 Rule 4 CPC.2. Briefly, the facts of the case are that the petitioner filed a suit on 3.1.2009, inter-alia, for dissolution ofpartnership deed dated 1.4.1998 executed between the petitioner-plaintiff and respondent No. 1- RamanKumar Goyal in the name and style of M/s New Hindustan Surgicals Company and for rendition of accounts.After filing of the written statement by the respondents on 11.5.2009, the case was adjourned for filing ofreplication. After the same having not been filed, the learned court below adjourned the case number of times.On 4.12.2009, the matter was adjourned to 1.2.2010 noticing that on failure of the parties to appear in person,provisions of Order 10 Rule 4 CPC would apply. On the next date, i.e., 1.2.2010, the suit having beendismissed, the order is impugned before this court.Civil Revision No. 3188 of 2010 [2]3. Learned counsel for the petitioner submitted that firstly no application regarding admission and denial ofdocuments, as is noticed in the order dated 24.7.2009, was filed by either of the parties. He further submittedthat for admission or denial of any of the allegations in the pleadings, the parties were not required to appearMrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 in person. It could be in the presence of counsels as well. On all the occasions, counsels for both the partieswere present but no questions were asked by the court below. Without exhausting the option under Order 10Rule 1 CPC, the court could not jump to Order 10 Rule 2 CPC for oral examination of the parties or theircompanions. The tone and tenor of the order shows that the court had proceeded on the assumption that it wasthe default of the party under Order 10 Rule 2 CPC, hence the suit was liable to be dismissed. The provisionitself provides for extension of time. In support of his contention, reliance was placed upon the judgment ofHon'ble the Supreme Court in M/s Kapil Corepacks Pvt. Ltd. and others v. Shri Harbans Lal (since deceased)through Lrs., 2010(4) Civil Court Cases 63 and of this court in Sarwan Singh v. Onkar Singh and others,2010(1) Civil Court Cases 231.4. On the other hand, learned counsel for the respondents submitted that the impugned order passed by thelearned court below is strictly in terms of the provisions of law. The Code provides for examination of thecounsels or the parties before framing the issues to shorten the litigation. Keeping that object in view, astringent provision has been made in Order 10 Rule 4 CPC providing for passing of the judgment or suchorder as the court deems fit. In the present case, a perusal of the zimni orders passed by the court below showsthat the petitioner had defaulted repeatedly. No replication to the written statement was filed, where certainfacts had been pleaded showing that the contentions raised in the plaint were totally wrong. Considering theaforesaid facts, the petitioner is not entitled to the relief prayed for.5. Heard learned counsel for the parties and perused the paper book.6. Various orders in CPC provide for procedure in detail for conduct of trial in a suit after the parties haveappeared and filed written Civil Revision No. 3188 of 2010 [3]statement. Before framing of issues, which is provided for under Order 14 CPC, to shorten the disputebetween the parties, various provisions have been laid down.7. Before appreciating the contentions raised by learned counsel for the parties, a reference to Section 89 andOrder X CPC is required. The same are reproduced hereunder:"Section 89 CPC89. Settlement of disputes outside the Court.- (1) Where it appears to the Court that there exist elements of asettlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and givethem to the parties for their observations and after receiving the observations of the parties, the Court mayreformulate the terms of a possible settlement and refer the same for --(a) arbitration;(b) conciliation;(c) judicial settlement including settlement through Lok Adalat; or(d) mediation.(2) Where a dispute has been referred--(a) for Arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996)shall apply as if the proceedings for arbitration or conciliation were referred for settlement under theprovisions of that Act;Mrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions ofsub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisionsof that Act shall apply in respect of the dispute so referred to the Lok Adalat;(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institutionor person shall be deemed to be a Lok Adalat and all the Civil Revision No. 3188 of 2010 [4]provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred toa Lok Adalat under the provisions of that Act; (d) for mediation, the Court shall effect a compromise betweenthe parties and shall follow such procedure as may be prescribed.]xx xx xxOrder X of the Code of Civil ProcedureORDER XEXAMINATION OF PARTIES BY THE COURT1. Ascertainment whether allegations in pleadings are admitted or denied.- At the first hearing of the suit thecourt shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as aremade in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessaryimplication admitted or denied by the party against whom they are made. The Court shall record suchadmissions and denials.1-A. Direction of the Court to opt for any one mode of alternative dispute resolution.- After recording theadmissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlementoutside the Court as specified in sub-section (1) of Section 89. On the option of the parties, the Court shall fixthe date of appearance before such forum or authority as may be opted by the parties. 1-B. Appearance beforethe conciliatory forum or authority.- Where a suit is referred under rule 1-A, the parties shall appear beforesuch forum or authority for conciliation of the suit.1-C. Appearance before the court consequent to the failure of efforts of conciliation.- Where a suit is referredunder rule 1-A and the presiding officer of conciliation forum or authority is satisfied that it would not beproper in the interest Civil Revision No. 3188 of 2010 [5]of justice to proceed with the matter further, then it shall refer the matter again to the court and direct theparties to appear before the court on the date fixed by it.2. Oral examination of party, or companion of party. - (1) At the first hearing of the suit, the Court- (a) shall,with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suitappearing in person or present in court, as it deems fit; and(b) may orally examine any person, able to answer any material question relating to the suit, by whom anyparty appearing in person or present in court or his pleader is accompanied.(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present inCourt, or any person, able to answer any material question relating to the suit, by whom such party or hispleader is accompanied. (3) The Court may, if it thinks fit, put in the course of an examination under this rulequestions suggested by either party.Mrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 33. Substance of examination to be written.- The substance of the examination shall be reduced to writing bythe Judge, and shall form part of the record.4. Consequence of refusal or inability of pleader to answer.- (1) Where the pleader of any party who appearsby a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable toanswer any material question relating to the suit which the court is of opinion that the party whom herepresents ought to answer, and is likely to be able to answer if interrogated in person, the Court maypostpone the hearing of the suit to a day not later than seven days from the date of first hearing and direct thatsuch party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in CivilRevision No. 3188 of 2010 [6]person on the day so appointed, the Court may pronounce judgment against him, or make such order inrelation to the suit as it thinks fit."8. Order 10 CPC, which has been invoked to non-suit the petitioner, provides for examination of parties by thecourt. Rule 1 thereof provides that at the first hearing of the suit, the court shall ascertain from each party orhis pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement(if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by theparty against whom these are made. The Court shall record such admissions and denials. Rule 1-A providesthat after recording the admission and denial, the court shall direct the parties to the suit to opt either mode ofthe settlement outside the court as specified in Section 89 (1) CPC. On the option of the parties, the court shallfix the date of appearance before such forum or authority, as may be opted.9. Section 89(1) CPC provides that where it appears to the court that there exist element of a settlement, whichmay be acceptable to the parties, the court shall formulate the terms of settlement and give them to the partiesfor their observations and after receiving the observations of the parties, the court may re-formulate the termsof a possible settlement and refer the same for (a) arbitration; (b) conciliation; (c) judicial settlement includingsettlement through Lok Adalat; or (d) mediation.10. Where a dispute is referred to any of the forum/authority under Order 10 Rule 1-A CPC, the parties are toappear before such forum or authority. Rule 1-C of Order 10 CPC provides that on failure of efforts ofconciliation, the matter shall be referred back to the Court.11. Rule 1-A, B and C were inserted in Order 10 CPC by the Code of Civil Procedure (Amendment) Act,1999 w.e.f. 1.7.2002 with the insertion of Section 89 CPC. Earlier Section 89 was repealed by the ArbitrationAct, 1940. The Objects and Reasons appended in the Bill seeking insertion of Section 89 CPC are extractedbelow: "Amendments: Objects and Reasons- Clause 7 provides for the settlement of disputes outside theCourt. The provisions of clause 7 are based on the recommendations made by Law Civil Revision No. 3188 of2010 [7]Commission of India and Malimath Committee. It was suggested by Law Commission of India that the Courtmay require attendance of any party to the suit or proceedings to appear in person with a view to arriving at anamicable settlement of dispute between the parties and make an attempt to settle the dispute between theparties amicably. Malimath Committee recommended to make it obligatory for the Court to refer the dispute,after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlementor through Lok Adalat. It is only when the parties fail to get their disputes settled through any of thealternative disputes resolution method that the suit could proceed further. In view of the above, clause 7 seeksto insert a new Section 89 in the Code in order to provide for alternative dispute resolution. [Statement ofObjects and Reasons (Bill 1999).]"12. The object of newly added Section 89 CPC is obviously to promote alternative methods of disputeresolution.Mrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012. After exhausting the options available under Rule 1-A to 1-C of Order 10 CPC, the court is to proceed todeal with the matter in terms of Rules 2 and 3, the consequences whereof are provided in Rule 4 thereof.14. The issue as to what is the procedure to be adopted by the courts in terms of the provisions of Section 89CPC and Order 10 Rule 1-A CPC has been considered by Hon'ble the Supreme Court in Salem Advocate BarAssociation, T.N. v. Union of India, (2005) 6 SCC 344, wherein it has been held as under:"As can be seen from Section 89, its first part uses the word "shall" when it stipulates that the "court shallformulate terms of settlement". The use of the word "may" in later part of Section 89 only relates to the aspectof reformulating the terms of a possible settlement. The intention of the legislature behind enacting Section 89is that where it appears to the court that there exists an element of a settlement which may be acceptable to theparties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the CivilRevision No. 3188 of 2010 [8]other of the four ADR methods mentioned in the section and if the parties do not agree, the court shall referthem to one or the other of the said modes. Section 89 uses both the words "shall" and "may" whereas Order10 Rule 1-A uses the word "shall" but on harmonious reading of these provisions it becomes clear that the useof the word "may" in Section 89 only governs the aspect of reformulation of the terms of a possible settlementand its reference to one of the ADR methods. There is no conflict. It is evident that what is referred to one ofthe ADR modes is the dispute which is summarised in the terms of settlement formulated or reformulated interms of Section 89."15. In Afcons Infrastructure Ltd. and another v. Cherian Varkey Construction Co. (P) Ltd. and others, (2010)8 SCC 24, Hon'ble the Supreme Court held that the course adopted by the trial court to invoke provisions ofSection 89 CPC for exploring non-adjudicatory ADR process in the absence of an application is erroneous.The only way to read Section 89 and Order 10 Rule 1-A CPC is that after completing the pleadings andseeking admission or denial, wherever required, however, before framing issues, the court will have to takerecourse to Section 89 CPC while recording the nature of dispute and informing the parties about the fiveoptions available. It has further been observed therein that in family disputes or matrimonial cases, the idealstage for mediation will be immediately after service of notice on the respondent-defendant and before eventhe written statements or objections are filed. The object is to avert the hostility which might further beaggravated by the allegations and counter-allegations in the pleadings. However, no dispute can be referredunless the parties to the suit agree to such reference.16. The issue as to whether reference to ADR process is mandatory or not has also been considered byHon'ble the Supreme Court in the aforesaid judgment. Certain categories of cases which are normally suitablefor ADR process have also been enumerated along with the cases, which are not normally considered to besuitable. It also provides that the Civil Courts should invariably refer the cases to ADR process. Where theCivil Revision No. 3188 of 2010 [9]case is found to be not suited for reference to any of the ADR processes, the court will have to record reasonsin brief. Consideration for reference to ADR is mandatory but actual reference to an ADR process is not.Relevant paragraphs thereof are extracted below:"26. Section 89 starts with the words "where it appears to the court that there exist elements of a settlement".This clearly shows that cases which are not suited for ADR process should not be referred under Section 89 ofthe Code. The court has to form an opinion that a case is one that is capable of being referred to and settledthrough ADR process. Having regard to the tenor of the provisions of Rule 1-A of Order 10 of the Code, theCivil court should invariably refer cases to ADR process. Only in certain recognised excluded categories ofcases, it may choose not to refer to an ADR process. Where the case is unsuited for reference to any of theADR processes, the court will have to briefly record the reasons for not resorting to any of the settlementprocedures prescribed under Section 89 of the Code. Therefore, having a hearing after completion ofMrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 pleadings, to consider recourse to ADR process under Section 89 of the Code, is mandatory. But actualreference to an ADR process in all cases is not mandatory. Where the case falls under an excluded categorythere need not be reference to ADR process. In all other cases reference to ADR process is a must.27. The following categories of cases are normally considered to be not suitable for ADR process havingregard to their nature:(i) Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerouspersons who are not parties before the court. (In fact, even a compromise in such a suit is a difficult processrequiring notice to the persons interested in the suit, before its acceptance). Civil Revision No. 3188 of 2010[10](ii) Disputes relating to election to public offices (as contrasted from disputes between two groups trying toget control over the management of societies, clubs, association, etc.).(iii) Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate orletters of administration.(iv) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery,impersonation, coercion, etc.(v) Cases requiring protection of courts, as for example, claims against minors, deities and mentallychallenged and suits for declaration of title against the Government. (vi) Cases involving prosecution forcriminal offences.28. All other suits and cases of civil nature in particular the following categories of cases (whether pending incivil courts or other special tribunals/forums) are normally suitable for ADR processes:(i) All cases relating to trade, commerce and contracts including* disputes arising out of contracts (including all money claims);* disputes relating to specific performance; * disputes between suppliers and customers; * disputes betweenbankers and customers; * disputes between developers/builders and customers; * disputes between landlordsand tenants/ licensor and licensees;* disputes between insurer and insured; (ii) All cases arising from strained or soured relationships, including* disputes relating to matrimonial causes, maintenance, custody of children;Civil Revision No. 3188 of 2010 [11]* disputes relating to partition/division among family members/coparceners/co-owners; and* disputes relating to partnership among partners. (iii) All cases where there is a need for continuation of thepre-existing relationship in spite of the disputes, including * disputes between neighbours (relating toeasementary rights, encroachments, nuisance, etc.);* disputes between employers and employees; * disputes among members of societies/associations/ apartmentowners' associations;Mrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 (iv) All cases relating to tortious liability, including * claims for compensation in motor accidents/otheraccidents; and(v) All consumer disputes, including* disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professionalreputation and credibility or product popularity. The above enumeration of "suitable" and "unsuitable"categorisation of cases is not intended to be exhaustive or rigid. They are illustrative, which can be subjectedto just exceptions or additions by the court/tribunal exercising its jurisdiction/discretion in referring adispute/case to an ADR process.xx xx xx41. Having regard to the provisions of Section 89 and Rule 1- A of Order 10, the stage at which the courtshould explore whether the matter should be referred to ADR processes, is after the pleadings are complete,and before framing the issues, when the matter is taken up for preliminary hearing for examination of partiesunder Order 10 of the Code. However, if for any reason, the court had missed the opportunity to consider andrefer the matter to ADR processes under Section 89 before framing issues, nothing prevents the court fromresorting to Section 89 even after framing issues. But once Civil Revision No. 3188 of 2010 [12]evidence is commenced, the court will be reluctant to refer the matter to the ADR processes lest it becomes atool for protracting the trial.42. Though in civil suits, the appropriate stage for considering reference to ADR processes is after thecompletion of pleadings, in family disputes or matrimonial cases, the position can be slightly different. Inthose cases, the relationship becomes hostile on account of the various allegations in the petition against thespouse. The hostility will be further aggravated by the counter-allegations made by the respondent in his orher written statement or objections. Therefore, as far as Family Courts are concerned, the ideal stage formediation will be immediately after service of respondent and before the respondent files objections/writtenstatements. Be that as it may.43. We may summarize the procedure to be adopted by a court under section 89 of the Code as under :a) When the pleadings are complete, before framing issues, the court shall fix a preliminary hearing forappearance of parties. The court should acquaint itself with the facts of the case and the nature of the disputebetween the parties.b) The court should first consider whether the case falls under any of the category of the cases which arerequired to be tried by courts and not fit to be referred to any ADR processes. If it finds that the case fallsunder any excluded category, it should record a brief order referring to the nature of the case and why it is notfit for reference to ADR processes. It will then proceed with the framing of issues and trial.Civil Revision No. 3188 of 2010 [13]c) In other cases (that is, in cases which can be referred to ADR processes) the court should explain the choiceof five ADR processes to the parties to enable them to exercise their option.d) The court should first ascertain whether the parties are willing for arbitration. The court should inform theparties that arbitration is an adjudicatory process by a chosen private forum and reference to arbitration willpermanently take the suit outside the ambit of the court. The parties should also be informed that the cost ofarbitration will have to be borne by them. Only if both parties agree for arbitration, and also agree upon thearbitrator, the matter should be referred to arbitration.Mrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 e) If the parties are not agreeable for arbitration, the court should ascertain whether the parties are agreeablefor reference to conciliation which will be governed by the provisions of the AC Act. If all the parties agreefor reference to conciliation and agree upon the conciliator/s, the court can refer the matter to conciliation inaccordance with section 64 of the AC Act.f) If the parties are not agreeable for arbitration and conciliation, which is likely to happen in most of the casesfor want of consensus, the court should, keeping in view the preferences/options of parties, refer the matter toany one of the other three ADR processes : (a) Lok Adalat; (b) mediation by a neutral third party facilitator ormediator; and (c) a judicial settlement, where a Judge assists the parties to arrive at a settlement. CivilRevision No. 3188 of 2010 [14](g) If the case is simple which may be completed in a single sitting, or cases relating to a matter where thelegal principles are clearly settled and there is no personal animosity between the parties (as in the case ofmotor accident claims), the court may refer the matter to Lok Adalat. In case where the questions arecomplicated or cases which may require several rounds of negotiations, the court may refer the matter tomediation. Where the facility of mediation is not available or where the parties opt for the guidance of a Judgeto arrive at a settlement, the court may refer the matter to another Judge for attempting settlement.(h) If the reference to the ADR process fails, on receipt of the Report of the ADR Forum, the court shallproceed with hearing of the suit. If there is a settlement, the court shall examine the settlement and make adecree in terms of it, keeping the principles of Order 23 Rule 3 of the Code in mind.(i) If the settlement includes disputes which are not the subject matter of the suit, the court may direct that thesame will be governed by Section 74 of the AC Act (if it is a Conciliation Settlement) or Section 21 of theLegal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemedLok Adalat). If the settlement is through mediation and it relates not only to disputes which are subject-matterof the suit, but also other disputes involving persons other than the parties to the suit, the court may adopt theprinciple underlying Order 23 Rule 3 of the Code. This will be necessary as many settlement agreements dealwith not only the disputes which are the subject matter of the suit or proceeding in which the reference ismade, Civil Revision No. 3188 of 2010 [15]but also other disputes which are not the subject matter of the suit.(j) If any term of the settlement is ex facie illegal or unforceable, the court should draw the attention of partiesthereto to avoid further litigations and disputes about executability.44. The Court should also bear in mind the following consequential aspects, while giving effect to Section 89of the Code :(i) If the reference is to arbitration or conciliation, the court has to record that the reference is by mutualconsent. Nothing further need be stated in the order sheet.(ii) If the reference is to any other ADR process, the court should briefly record that having regard to thenature of dispute, the case deserves to be referred to Lok Adalat, or mediation or judicial settlement, as thecase may be. There is no need for an elaborate order for making the reference.(iii) The requirement in Section 89(1) that the court should formulate or reformulate the terms of settlementwould only mean that the court has to briefly refer to the nature of dispute and decide upon the appropriateADR process.(iv) If the Judge in charge of the case assists the parties and if settlement negotiations fail, he should not dealwith the adjudication of the matter, to avoid apprehensions of bias and prejudice. It is therefore Civil RevisionMrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 No. 3188 of 2010 [16]advisable to refer cases proposed for Judicial Settlement to another Judge.(v) If the court refers the matter to an ADR process (other than Arbitration), it should keep track of the matterby fixing a hearing date for the ADR Report. The period allotted for the ADR process can normally vary froma week to two months (which may be extended in exceptional cases, depending upon the availability of thealternative forum, the nature of case etc.). Under no circumstances the court should allow the ADR process tobecome a tool in the hands of an unscrupulous litigant intent upon dragging on the proceedings.(vi) Normally the court should not send the original record of the case when referring the matter for an ADRforum. It should make available only copies of relevant papers to the ADR forum. (For this purpose, whenpleadings are filed the court may insist upon filing of an extra copy). However if the case is referred to a Courtannexed Mediation Centre which is under the exclusive control and supervision of a Judicial Officer, theoriginal file may be made available wherever necessary.45. The procedure and consequential aspects referred to in the earlier two paragraphs are intended to begeneral guidelines subject to such changes as the concerned court may deem fit with reference to the specialcircumstances of a case. We have referred to the procedure and process rather elaborately as we find thatsection 89 has been a non-starter with many courts. Though the process under Section 89 appears to belengthy and complicated, in practice the process is simple: know the dispute; exclude 'unfit' cases; ascertainconsent for arbitration or conciliation; if there is no consent, select Lok Adalat for Civil Revision No. 3188 of2010 [17]simple cases and mediation for all other cases, reserving reference to a Judge assisted settlement only inexceptional or special cases."17. On failure of efforts of conciliation, the matter is to be referred back to the court by such forum orauthority to proceed further in terms of Order 10 Rule 2 CPC, which provides that at the first date of hearingof the suit, the court shall with a view to elucidating matters in controversy in suit examine orally the partiesto the suit or any other person who is able to answer any material question relating to the suit or their pleader.18. Rule 4 of Order 10 CPC provides that on failure of the counsels of the parties to appear or their refusal toanswer any material question, the court may pronounce the judgment as it thinks fit.19. The CPC provides for procedure for trial of suits. Procedural law is intended to facilitate the process ofjustice. As to how a procedural law is to be interpreted and which of the provisions are to be considered asdirectory or mandatory was considered by Hon'ble the Supreme Court in Mahadev Govind Gharge and othersv. Special Land Acquisition Officer, (2011) 6 SCC 321, wherein it has been held as under:29. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve theends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. ............... xxxx xx31. In Justice G.P. Singh's Principles of Statutory Interpretation (11th Edn., 2008), the learned author whilereferring to judgments of different Courts states (at page 134) that procedural laws regulating proceedings incourt are to be construed as to render justice wherever reasonably possible and to avoid injustice from amistake of the court. He further states (at pages 135 and 136) that:"Consideration of hardship, injustice or absurdity as Civil Revision No. 3188 of 2010 [18]Mrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 avoiding a particular construction is a rule which must be applied with great care. "The argument "abinconvenienti", said LORD MOULTON, "is one which requires to be used with great caution"."32. The learned author while referring to the judgments of this Court in the case of Sangram Singh v. ElectionTribunal, [(1955) 2 SCR 1] recorded (at page 384) that: "while considering the non-compliance with aprocedural requirement, it has to be kept in view that such a requirement is designed to facilitate justice andfurther its ends and therefore, if the consequence of non-compliance is not provided, the requirement may beheld to be directory..."33. This Court in the case of Byram Pestonji Gariwala v. Union Bank of India & others [(1992) 1 SCC 31]referred to Crawford's Statutory Construction (para 254) to say that:"Statutes relating to remedies and procedure must receive a liberal construction 'especially so as to secure amore effective, a speedier, a simpler, and a less expensive administration of law'.xx xx xx37. Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedingsto achieve the objects of justice and expeditious disposal of cases. The provisions of procedural law which donot provide for penal consequences in default of their compliance should normally be construed as directoryin nature and should receive liberal construction. The Court should always keep in mind the object of thestatute and adopt an interpretation which would further such cause in light of attendant circumstances. To putCivil Revision No. 3188 of 2010 [19]it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effectivedetermination of dispute moving in its place. The procedural checks must achieve their end object of just, fairand expeditious justice to the parties without seriously prejudicing the rights of any of them."20. In case of non-compliance of the provisions of Rules 1 and 2, penal consequences have been provided inRule 4 of Order 10 CPC, which may result in dismissal of suit, hence the provisions have to be interpretedstrictly.21. A perusal of the interim orders passed by the court below shows that after filing of written statement bythe petitioner on 11.5.2009, the case was adjourned for filing replication. The same having not been filed on24.7.2009, it was adjourned to 3.9.2009 for the purpose of filing of an application for discovery andinterrogation (sic.) and application for admission or denial. On the next date of hearing, none of the aforesaidapplications having been filed, the case was adjourned for recording statements of the parties before framingof issues and the counsels were directed to produce the parties for the purpose of recording their statements.On the next two occasions as well, the same order was repeated, whereas in the order passed on the seconddate, it was mentioned that on failure the provisions of Order 10 Rule 4 CPC would apply. On the next date,considering the fact that none of the parties was present, the learned court below passed the following order:"The parties have not come present to make their statement u/o 10 Rule 1 CPC. Case has been adjournedthrice for the said purpose. In these circumstances, the suit is dismissed u/o 10 Rule 4 CPC in view ofprevious order. File be consigned to the judicial record room, Jalandhar."22. If the facts of the present case are considered in the light of enunciation of law, where Hon'ble theSupreme Court provided that it is mandatory for the courts to explore the process for conciliation as isprovided for under Section 89 read with Order 10 Rule 1-A CPC and in Civil Revision No. 3188 of 2010 [20]case subject-matter of dispute cannot be referred to or the parties are not consenting for that process, briefreasons are to be recorded therefor in the order. Though Order 10 Rule 1 CPC provides that facts can beascertained even from the counsels. It is only Order 10 Rule 2 CPC, which provides that the parties are to beMrs. Ramesh Rani vs Shri Raman Kumar Goyal And Another on 23 January, 2012 examined. The consequence of default under Order 10 Rule 2 CPC is provided for under Rule 4. In thepresent case, though the counsels were present on every date of hearing, nothing is evident from the zimniorders passed by the court below on various dates that any facts were sought to be ascertained from them. Thecourt merely directed the parties to appear in person. In terms of Order 10 Rule 1-A CPC, the court is requiredto direct the parties to appear in person after recording admissions and denials under Rule 1 CPC to opt foreither mode of settlement outside the court. The provisions have been held to be mandatory. It is not that onlythe plaintiff had not appeared in the court, rather, the defendants had also not appeared.23. In the present case, the learned court below did not follow the procedure provided under Order 10 CPCand simply recorded that as the parties did not appear, the consequences under Order 10 Rule 4 CPC followand the suit was dismissed. The order, being totally in violation of the provisions of law, deserves to be setaside. Ordered accordingly.24. The learned court below is directed to proceed further strictly in terms of the provisions of law, as havebeen interpreted in the judgments, referred to above.25. The parties through their counsels are directed to appear before the court below on 4.2.2012.26. The petition stands disposed of.(Rajesh Bindal)JudgeJanuary 23, 2012mk(Refer to Reporter)
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