DB upholds constitutional validity in CPC amendment

Excelsior Correspondent

SRINAGAR, Sept 30: High Court has dismissed the plea challenging certain provisions of Code of Civil Procedure (CPC) and upheld the validity of the amended provisions made under Jammu and Kashmir Re-Organization Act 2019.

The Division Bench of Justice Rajnesh Oswal and Justice Sanjay Dhar decided the constitutional validity of amended provisions made under J&K Re-Organization Act 2019 on a batch of petitions challenging the constitutional validity and legality of Notification bearing S.O. No. 1123(E) dated 18.03.2020.

Pursuant to Section 96 of the Jammu and Kashmir Reorganization Act, 2019, the Central Government issued Notification S.O. 1123(E) dated 18.03.2020, applying the Acts listed in its Schedule, including the Code of Civil Procedure with necessary adaptations and modifications, to the Union Territory of Jammu & Kashmir.

"…We are of the considered view that in order to uphold the validity of the amended provisions, so as to achieve the salutary object of expeditious disposal of cases, the timeline provided under the amended provisions is required to be read down. However, while doing so, this Court has to keep in mind the legislative intent of incorporating forfeiture clause in proviso to Rule 1 of Order VIII CPC", DB recorded.

The court said that a balance has to be struck between the legislative intent of doing away with the delay in proceedings of civil cases and the need to save the power of a civil Court to take care of extreme situations where a defendant has genuinely been incapacitated in filing the written statement within the statutory limit of 120 days due to the reasons beyond his control.

The court that it would hasten to add that while exercising the power to extend the time in filing the written statement beyond the mandatory time line, the Court must compensate the plaintiff with adequate costs and it has to be borne in mind that the burden to prove that it was impossible for the defendant to file written statement within the statutory time frame would lie heavily upon him/her, which he/she will have to discharge by placing on record cogent and convincing material.

The court concluded that the statutory period of 120 days must be adhered to strictly and under normal circumstances, if the defendant violates the timeline provided under the amended Order V and Order VIII of CPC, the right of the defendant shall stand forfeited and in exceptionally hard circumstances, where the defendant is incapacitated to file the written statement beyond the timeline provided under amended Order V & VIII of CPC, for the reasons beyond his control, permission can be granted by the court, for filing the written statement beyond the mandatory timeline, subject to payment of costs and after recording reasons for doing so.

The court in its considered view has held that that the respondent-Union of India was justified in enacting the impugned amendments to the Code of Civil Procedure, as applicable to the Union Territories of Jammu & Kashmir and Ladakh, with the salutary object of expediting civil litigation, the statutory framework suffers from systemic oversight.