Useful Free Reference Material on Trial Court Procedure in Maharashtra

 FOR CIVIL COURTS -

* Civil Manual (issued by Bombay High Court for Trial Court Procedure)
https://court.mah.nic.in/courtweb/index_eng.php#
(click on the information centre).

* Criminal Manual (issued by Bombay High Court for Trial Court Procedure)
https://court.mah.nic.in/courtweb/static_pages/page5b.htm
(click on the information centre)

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When court should not permit rectification of procedural irregularity committed by party?

In Kailash v. Nanhku and Ors. MANU/SC/0264/2005 : AIR2005SC2441 , this Court has categorically held:

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, 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.

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. MANU/SC/2173/2005 : AIR2006SC269 , it was observed:

17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:

i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.

ii) where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;

iii) where the non-compliance or violation is proved to be deliberate or mischievous;

iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.

v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2243 of 2009 (Arising out of SLP (C) No. 5026 of 2007)

Decided On: 08.04.2009

 Lakshmi  Vs.  Chinnammal and Ors.

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Whether court should give more opportunities to parties to prove their case or defend their case?

Giving reasonable opportunity to prove a case is as crucial and as vital in the process of doing justice as is an opportunity of defence to an adversary. Giving such opportunity would therefore be a primary and assumed pillar and cannon of adjudication in the endeavour of search of truth. Search of truth is the object, and not the part of procedural ritual.

I am in full agreement with above view.

3. Once it is clear that the additional affidavit and documents have bearing on the matter at issue, those documents cannot be rejected on the ground of delay. Haji Munir Ahmed Mansoori v. State of Maharashtra and Ors. and V.P. Nagar Samanvay Samiti 2008 (2) M.L.J. 26.

4. It is also settled that Rules and procedure should be used in favour of giving opportunities to the parties; in the interest of justice and not to curtail it. Zolba v. Keshao and Ors. 2008(3) Bom. C R 7.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6695 of 2008

Decided On: 24.10.2008

Cosmosteels Private Limited Vs. Supermax International Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:
Anoop V. Mohta, J.

Citation: 2009(1) LJSOFT 11

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Notable excerpts

Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. Statutory law and processal law are two sides of the judicial drachma, each being the obverse of the other.

Supreme Court of India

Gangai Vinayagar Temple & Anr vs Meenakshi Ammal & Ors on 9 October, 2014

Bench: Anil R. Dave, Vikramajit Sen, Pinaki Chandra Ghose

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When there is no specific prohibition, unless expressly provided in law, every procedure is to be understood as permissible.

The Apex Court in the case of Rajendra Prasad Gupta Vs.
Prakash Chandra Mishra and others, reported at AIR 2011 SC
1137, has held in paragraph 6 and 7 as under :-
“6. In Narsingh Das V. Mangal Dubey, (1882) ILR 5
All 163 (FB), Mr. Justice Mahamood, the celebrated
Judge of the Allahabad High Court, observed :-
“ Courts are not to act upon the principle that
every procedure is to be taken as prohibited unless it
is expressly provided for by the Code, but on the
converse principle that every procedure is to be
understood as permissible till it is shown to be
prohibited by the law. As a matter of general principle
prohibition cannot be presumed.”
“7. The above view was followed by a Full Bench of
the Allahabad High Court in Raj Narain Saxena V.
Bhim Sen & others, AIR 1966 Allahabad 84 (FB), and
we agree with this view.”

Thus, it is trite that when there is no specific prohibition,
unless expressly provided in law, every procedure is to be
understood as permissible.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 3229 OF 2001
Nanded Zilla Krushi Audyogik
Society Ltd. Nanded,
Versus
Govind s/o Girmaji Shinde,

CORAM : RAVINDRA V. GHUGE
DATED : 21st August 2014
Citation;2015(2)MHLJ805

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Every procedure is to be understood as permissible till it is shown to be prohibited by law

In Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed :-

"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed."

The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena Vs. Bhim Sen & others, AIR 1966 Allahabad 84 FB, and we agree with this view.

Supreme Court of India

Rajendra Prasad Gupta vs Prakash Chandra Mishra & Ors on 12 January, 2011

Bench: Markandey Katju, Gyan Sudha Misra
Citation;2011(3) MHLJ SC,AIR 2011SC1137

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