REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.868 OF 2011

Siddalingayya  ….Appellant(s)

VERSUS

Gurulingappa & Ors.       …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed by the plaintiff against the

final judgment and order dated 24.06.2005 passed

by the High Court of Karnataka at Bangalore in RSA

No.220 of 2003 whereby the High Court allowed the

second appeal filed by the respondents herein and

while setting aside the judgment/decree of the two

Courts below remanded the case to the Trial Court

for  deciding  the  civil  suit  afresh  on  merits  after

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affording  an  opportunity  to  the

respondents(defendants) to file written statement.  

2) The Controversy involved in the appeal lies in a

narrow  compass.  Few  facts  set  out  hereinbelow

would make the controversy clear.  

3)  The  appellant  is  the  plaintiff  whereas  the

respondents are the defendants in the suit out of

which this appeal arises.

4) The appellant filed a civil suit being O.S. 286

of 1993 against the respondents (defendants) in the

Court  of  Munsiff  -  Indi  (Bijapur)  for  recovery  of

Rs.45,000/- by way of damages.  According to the

appellant, the respondents illegally demolished his

construction and thereby caused monetary loss and

injury  to  him  and  hence  the  suit  to  recover  the

monetary loss suffered by him.

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5)  The  respondents  entered  appearance  but

failed  to  file  their  written  statement  despite  time

granted by the Court.

6) The  Trial  Court,  however,  declined  to  grant

further  time  to  file  written  statement  to  the

respondents  though  asked  for  and  accordingly

proceeded  to  record  evidence  of  the  appellant

(plaintiff)  and  by  judgment/decree  dated

24.02.1997,  decreed  the  suit  of  the

appellant(plaintiff)  for  Rs.45,000/-  against  the

respondents(defendants).

7) The defendants, felt aggrieved, filed first appeal

before  the  Principal  Civil  Judge  at  Bijapur  being

R.A.  No.103  of  1997.   By  judgment  dated

04.12.2002,  the  Appellate  Court  dismissed  the

appeal  and  affirmed  the  judgment/decree  of  the

Trial  Court.  Felt  aggrieved,  the  defendants  filed

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second appeal being R.S.A. No.220 of 2003  before

the High Court.  

8) By  impugned  judgment,  the  High  Court

allowed the second appeal and while setting aside

the  judgment/decree  of  the  two  Courts  below

remanded the case to the Trial  Court for deciding

the  civil  suit  afresh  on  merits  after  affording  an

opportunity to the respondents (defendants) to file

written statement.  

9) It was held that the Trial Court did not grant

sufficient  opportunity  to  the  respondents  to  file

written statement, due to which they had to suffer

the decree without any contest causing prejudice in

defending  the  suit.  The  High  Court,  however,

imposed a cost of Rs.11,250/- on the defendants to

be paid to the plaintiff as a pre-condition for filing

the  written  statement  within  the  extended  time

granted.

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10) It is against this order of the High Court, the

plaintiff has felt aggrieved and filed this appeal by

way of special leave before this Court.

11)   Mr.  Rajesh  Mahale,  learned  counsel  for  the

appellant  (plaintiff).  None  appeared  for  the

respondents though served.

12) Having  heard  the  learned  counsel  for  the

appellant and on perusal of the record of the case,

we are not inclined to interfere in the remand order

of the High Court impugned in this appeal.

13) This case reminds us of the apt observations of

a great  Judge of  this  Court (Vivian Bose,  J.).  His

Lordship, speaking for the Bench, in his inimitable

style of writing said in Sangram Singh vs. Election

Tribunal  Kotah  &  Anr. (AIR  1955  SC  425)  as

under:

“A  Code  of  procedure  must  be  regarded  as such.  It is procedure something designed to facilitate justice and further its ends: not a penal  enactment  for  punishment  and

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penalties; not a thing designed to trip people up.  Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for  the  furtherance  of  justice  be  used  to frustrate  it.   Our  laws  of  procedure  are grounded  on  a  principle  of  natural  justice which  requires  that  men  should  not  be condemned  unheard,  that  decisions  should not  be  reached  behind  their  backs,  that proceedings  that  affect  their  lives  and property  should  not  continue  in  their absence and that they should not continue in their  absence  and  that  they  should  not  be precluded  from  participating  in  them.   Of course, there must be exceptions and where they are clearly defined they must be given effect to.  But taken by and large, and subject to that proviso, our laws of procedure should be  construed,  wherever  that  is  reasonably possible, in the light of that principle.”

14) Keeping  the  aforementioned  observations  in

mind and examining the facts of the case at hand,

we  are  of  the  considered  opinion  that  the  High

Court made no mistake in allowing the respondents’

appeal and remanding the suit to the Trial Court for

fresh trial on merits after affording an opportunity

to the respondents (defendants) to file their written

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statement  to  enable  them  to  contest  the  suit  on

merits.  

15) It  is  true  that  the  time  was  granted  to  the

defendants to file written statement initially before

closing their right to file written statement, yet in

our  view,  the  Trial  Court  instead  of  closing  their

right to file written statement should have granted

some time to the defendants subject to payment of

reasonable  amount  of  cost  to  the  plaintiff  to

compensate  the  inconvenience  caused  to  the

plaintiff.   The High Court  was,  therefore,  right  in

imposing a cost of Rs.11,250/- on the defendants to

be paid to the plaintiff as a pre-condition to file the

written statement within the extended time granted

by the High Court.

16) In  our  view,  here  comes  the  application  of

observations of  Vivian Bose J. when His Lordship

said "Too technical a construction of a section that

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leaves  no  room  for  reasonable  elasticity  of

interpretation  should  therefore  be  guarded  against

(provided always that justice is done to both sides)

lest the very means designed for the furtherance of

justice be used to frustrate it. Our laws of procedure

are grounded on a principle of natural justice, which

requires  that  men  should  not  be  condemned

unheard, that decision should not be reached behind

their  back,  that  proceedings  that  affect  their  lives

and property  should  not  continue  in  their  absence

and  that  they  should  not  be  precluded  from

participating in them."  

17) Having observed this, His Lordship cautioned

"of course there must be exceptions too and where

they are clearly defined they must be given effect to”

and finally His Lordship concluded observing "But

taken by and large, and subject to that proviso, our

laws  of  procedure  should  be  construed,  wherever

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that  is  reasonably  possible,  in  the  light  of  that

principle."

18) The  approach  of  the  High  Court,  which

resulted in remand of the case to the Trial Court for

deciding  the  suit  on  merits  after  affording  full

opportunity to the defendants to contest  the case

and, at the same time, making it obligatory to pay

cost of Rs.11,250/- to the plaintiff was, in our view,

in tune with the aforementioned observations and

did substantial justice to both the parties.

19) In view of foregoing discussion, we concur with

the reasoning and the conclusion arrived at by the

High Court and find no merit  in the appeal.  It  is

accordingly dismissed.

20) We, however, find that none appeared for the

respondents  (defendants)  in  this  appeal  though

served. The Trial Court will now take up the suit to

its file and will issue notice of suit proceedings to

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the respondents/defendants for their appearance in

the suit.

21)  On  their  entering  appearance  pursuant  to

service  of  fresh  notice,  the  Trial  Court  will  grant

them some time to deposit the cost amount fixed by

the  High  Court  and  also  to  file  their  written

statement.  

22) Failure to deposit the cost within the time fixed

so also the written statement would result in revival

of the decree passed by the Trial Court against the

defendants.  

23) In the event of defendants depositing the cost

and filing written statement  as directed,  the  Trial

Court  will  frame  issues  and  allow  the  parties  to

adduce  their  evidence  and  cross-examine  the

witnesses, who were already examined and will also

allow them to adduce additional evidence both oral

and documentary.  

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24) Let  the  trial  in  the  suit  be  over  within  six

months from the date of appearance of the parties.

The record of the case be sent back forthwith to the

Trial Court, if requisitioned here.  

25) The  appellant  (plaintiff)  to  appear  before  the

Trial Court on 3.10.2017 with the copy of this order

to enable the Trial Court to proceed in the trial of

the suit, as directed above.

               ………...................................J.

[R.K. AGRAWAL]             

                        …... ……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; September 05, 2017  

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