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Conference at Lucknow
Conference at Lucknow
Namesty.
This is only by way of revision of what you may have learnt as law
students and what you may have been experiencing as Judicial Officers.
The procedural law can not provide for things which are not given by
substantive law and can not take away that which has been provided by
substantive law.1 Thus, procedural law is always subservient to substantive
law.
I quote:-
Unquote.
(ii) the first schedule containing 51 Orders along with the Rules.
The first part lays down the general principles whereas the second part
prescribes the method, manner and mode of exercising the general
principles. Thus, the first part and the second part must be read together and
construed harmoniously. If anything in the Orders or the Rules is
inconsistent with the Sections, the later would prevail.
The power or authority of a court to inquire into the facts, to apply the
law, to pronounce a judgment and to carry it into execution depends upon its
jurisdiction.
The use of the word 'may' at most of the relevant places in the Code
denotes the vast discretion vested in civil courts in procedural matters for the
advancement of substantial justice. Even where a procedural provision is
coughed in a mandatory language and the word 'shall' is used therein it has
been interpreted to be directory in nature.
defendant shall file written statement within 30 days of the service of the
summons upon him and the court has been authorised to extend the said time
for reasons to be recorded in writing in a given case but not beyond 90 days
from the service of the summons. However, despite the mandatory form of
language used in the aforesaid provision, the Apex Court in Salem Bar
Association case7 has held the above provision to be directory in nature and
that the courts have sufficient authority of law to grant more time to the
defendant to file written statement if necessary in furtherance of substantial
justice.
All these and many other provisions of the like nature are matters of
procedure which aid dispensation of justice and the court has ample
authority in law to deviate a little in a given case in its discretion so as to
secure the ends of justice and to avoid the abuse of the process of the law.
lR;e so t;r sA