Whether procedural law will prevail over substantive law?

 The key word for determination of question involved is underlined, i.e., "name of any party improperly joined". The word improperly, in my view, is wide enough to include the name of a defendant who was no more when suit was filed. Learned counsel for the parties, during the course of arguments, fairly admitted that defendant No.2 died even before filing of the suit. If plaintiff was not aware about his death and impleaded him as defendant No.2, it can be said that he was improperly impleaded. Apart from this, no prejudice is caused to petitioner by the impugned order. Thus, I am unable to hold that the Court below has committed any error in permitting the deletion of the name of said defendant under Order 1 Rule 10(2) CPC. It cannot be forgotten that the procedural law is made for smooth functioning. It is not made to strangulate the litigants on hyper technical grounds. This Court has considered this aspect in a recent judgment reported in 2014(3) M.P.L.J. 612 (Dataram Singh & others Vs. Brindawan Singh and others) and opined as under:-

"In the opinion of this Court, the court below has taken a view to advance the cause of justice and did not permit itself to be strangulated by hyper- technicalities. This is settled in law that all the rules of procedure are the handmaid of justice. The Apex Court in AIR 1955 SC 425 (Sangram Singh v. Election Tribunal, Kotah) opined that A code of procedure must be regarded as such. It is "procedure", something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against. The Apex Court in (1975 (1) SCC 774 (Sushil Kumar Sen v. State of Bihar) opined that the mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence - processual, as much as substantive. In (1976) 1 SCC 719 (State of Punjab v. Shamlal Murari), the Apex Court held that processual 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, a lubricant, not a resistant in the administration of justice. In (1984) 3 SCC 46 (Ghanshyam Dass v. Dominion of India) the Apex Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. In (2005) 4 SCC 480 (Kailash vs. Nanhku and others) the Apex Court held that the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice."

Madhya Pradesh High Court

Smt. Rama Agrawal vs Smt. Mithlesh Agrawal on 29 June, 2015

BENCH AT GWALIOR

JUSTICE SUJOY PAUL.

Writ Petition No. 3596/15

( 29 / 06 /2015) This petition filed under Article 227 of the Constitution challenges the order dated 8.5.2015 whereby the application preferred by the respondent/plaintiff under Section 151 CPC (Annexure P-5) is allowed by the Court below.

2. The plaintiff filed a suit for declaration and permanent injunction. Shri Basant Lal Jain was impleaded as defendant No.2. However, the plaintiff filed said application under Section 151 CPC contending that Basant Lal Jain has already expired. Plaintiff is not aware about the names of his legal representatives. In this view of the matter, the name of Shri Basant Lal Jain be deleted.

3. Prayer was opposed by filing reply dated 20.4.2015 (Annexure P-6). It is contended in the reply that there is no legal provision to delete the name of dead defendant. In nutshell, application was opposed. The Court below allowed the said application by accepting the contention of the plaintiff.

4. Criticizing the order, shri K.N.Gupta, learned senior counsel submits that as per Order 1 Rule 10(2) C.P.C., such deletion is not permissible. The only course available to the plaintiff was to withdraw the suit against the defendant No.2 in accordance with the provisions of C.P.C.

5. Prayer is opposed by Shri Jain who supported the order of Court below.

6. I have heard the learned counsel for the parties and perused the record.

Order 1 Rule 10(2) reads as under:-

"(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." (emphasis supplied).

7. The key word for determination of question involved is underlined, i.e., "name of any party improperly joined". The word improperly, in my view, is wide enough to include the name of a defendant who was no more when suit was filed. Learned counsel for the parties, during the course of arguments, fairly admitted that defendant No.2 died even before filing of the suit. If plaintiff was not aware about his death and impleaded him as defendant No.2, it can be said that he was improperly impleaded. Apart from this, no prejudice is caused to petitioner by the impugned order. Thus, I am unable to hold that the Court below has committed any error in permitting the deletion of the name of said defendant under Order 1 Rule 10(2) CPC. It cannot be forgotten that the procedural law is made for smooth functioning. It is not made to strangulate the litigants on hyper technical grounds. This Court has considered this aspect in a recent judgment reported in 2014(3) M.P.L.J. 612 (Dataram Singh & others Vs. Brindawan Singh and others) and opined as under:-

"In the opinion of this Court, the court below has taken a view to advance the cause of justice and did not permit itself to be strangulated by hyper- technicalities. This is settled in law that all the rules of procedure are the handmaid of justice. The Apex Court in AIR 1955 SC 425 (Sangram Singh v. Election Tribunal, Kotah) opined that A code of procedure must be regarded as such. It is "procedure", something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against. The Apex Court in (1975 (1) SCC 774 (Sushil Kumar Sen v. State of Bihar) opined that the mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence - processual, as much as substantive. In (1976) 1 SCC 719 (State of Punjab v. Shamlal Murari), the Apex Court held that processual 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, a lubricant, not a resistant in the administration of justice. In (1984) 3 SCC 46 (Ghanshyam Dass v. Dominion of India) the Apex Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. In (2005) 4 SCC 480 (Kailash vs. Nanhku and others) the Apex Court held that the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice."

8. In this view of the matter, I find no error in the impugned order which warrants interference by this Court. Petition is bereft of merit and is hereby dismissed.

(Sujoy Paul) Judge vv 

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