TEXSTYLES Vs. KIRAN OVERSEAS EXPORT LIMITED

JUDGEMENT

(1.) THE QUESTION TO BE DECIDED IS WHETHER THE DEFENDANT HAS SUCCESSFULLY DISCLOSED A CASE FOR THE EXERCISE IN ITS FAVOUR OF THE DISCRETION POSSESSED BY THIS COURT IN ITS FAVOUR UNDER ORDER VIII RULE 1 OF THE CODE OF CIVIL PROCEDURE AS AMENDED WITH EFFECT FROM 1.7.2002, AND IN PARTICULAR WHETHER ANY DISCRETION REMAINS REPOSED WITH THE COURT AFTER THE EXPIRY OF NINETY DAYS FROM THE DATE OF SERVICE OF SUMMONS ON THE DEFENDANT. THE RELEVANT PROVISIONS PRIOR AND POST THE AMENDMENT READ AS FOLLOWS: OLD PRESENT

(2.) BROADLY STATED THE AMENDMENT CIRCUMSCRIBES AND LIMITS THE PERIOD WITHIN WHICH THE WRITTEN STATEMENT CAN BE FILED. MONTESQUE'S THEORY ON THE SEPARATION OF THE POWER BETWEEN THE PARLIAMENT/LEGISLATURE, THE EXECUTIVE AND THE JUDICIARY IS THE FOUNDATION ON WHICH OUR CONSTITUTION HAS BEEN CONSTRUCTED. THESE FRONTIERS CANNOT BE VIOLATED AND THE TERRITORIES OF EACH OF THE THREE CONSTITUENTS OF GOVERNANCE SHOULD NOT BE TRESPASSED UPON BY THE OTHERS. IT IS TRITE TO STATE THAT THE UNAMBIGUOUS LANGUAGE OF A STATUTE SHOULD BE GIVEN EFFECT TO WITHOUT RESTRAINTS. IN THE EVENT THAT THE STATUTORY PROVISION PROVES TO BE TOO STRINGENT PARLIAMENT IS RESPONSIBLE FOR ITS ABROGATION OR AMENDMENT IN ORDER TO ALLEVIATE ITS EMPIRICALLY EVIDENT HARSHNESS. IF MUTUAL RESPECT IS NOT GIVEN TO THE PROVINCES OF EACH OF THE OTHERS, THE CONSTITUTIONAL FRAMEWORK MAY BE IRREVERSIBLY AND IRRETRIEVABLY WEAKENED.

(3.) IN DR. J.J. MERCHANT & ORS. VS. SHRINATH CHATURVEDI, III (2002) CPJ 8 (SC), THE APEX COURT WAS PRIMARILY CONCERNED WITH THE ARGUMENT THAT BECAUSE OF THE DELAY IN DISPOSING OF A COMPLAINT UNDER THE CONSUMER PROTECTION LAWS THE PARTY SHOULD BE RELEGATED TO SEEKING RELIEF IN A CIVIL COURT. HOWEVER, THE APEX COURT, THROUGH A BENCH COMPRISING THREE LEARNED JUDGES, AFTER REPRODUCING THE PRESENT PROVISIONS, OBSERVED THAT -