1. In my opinion, the words 'at or before the first hearing' in Section 53 of the Civil Procedure Code are directory only, and allow of a discretion, of course to be properly exercised, of rejecting or amending a plaint after the first hearing.
2. In Burjore v. Bhagana I.L.R. 10 Cal. 557 : L.R. 11 Ind. Ap. 7 the Privy Council ruled that the words in Section 602 of the Civil Procedure Code, directing that security for costs shall be given within a certain time specified in the section, are only directory, and that the Court has a discretion to extend the time, and this ruling was followed by the Full Bench of this Court in Fazul-un-nissa Begam v. Oxford I.L.R. 6 All. 250.
3. The question raised in those cases is analogous to the one now before us, which was decided by the Bombay High Court in Modhe v. Dongre I.L.R. 5 Bom. 609 and I concur in the view of the law expressed by that Court.
Straight, Offg. C.J., and Brodhurst and Duthoit, JJ.
4. In our opinion the question referred to us must be answered in the negative. We think that the words 'at or before the first hearing 'in Section 53 of the Civil Procedure Code are mandatory and not directory, and that a plaint cannot be ' rejected,' 'returned for amendment,' or 'amended then and there' by a Court after the first hearing. It will be convenient in dealing with the point before us, to see how the law stood with respect to the same subject-matter under Act VIII of 1859. By Sections 29 and 32 of that statute, it was provided that 'if the plaint do not contain the several particulars hereinbefore required to be specified therein, or if it contain particulars other than those required to be specified, whether relevant to the suit or not, or if the statement of particulars be unnecessarily prolix, or if the plaint be not subscribed and verified as hereinbefore required the Court may reject the plaint, or, at its discretion, may allow the plaint to be amended.' Section 32: 'If upon the face of the plaint, or after questioning the plaintiff, it appear to the Court that the subject-matter of the plaint does not constitute a cause of action, or that the right of action is barred by lapse of time, the Court shall reject the plaint. Provided that the Court may in any case allow the plaint to be amended, if it appear proper to do so.' By Sections 30 and 31 of the same Act, provisions were made similar to those to be found now in Sections 54 and 57 of the present Code, and all orders passed under the sections of the old Code above referred to were appealable as orders, while, under the former, orders returning plaints for amendment, or to be presented to the proper Court, are appealable as such, orders of rejection being appealable as decrees. It will be observed that the language used in Section 29 of Act VIII of 1859 was general and without restriction, and the consequence was that much room was left for doubt, and a diversity of conflicting views were taken as to what was the proper stage at which to reject or return a plaint for amendment. Hence it had become desirable, when Act X of 1877 was in course of preparation, to lay down some clear and imperative rule of prarctice by which uniformity of procedure in this important respect on the part of the Courts could be secured. Except for a ruling of the late Chief Justice of Bombay, to which we will presently advert, and the opinion now expressed by our honorable colleague, Oldfield, J., we should have thought that the language of Section 53 of the present Code is only open to one construction, namely, that it exactly meets the difficulty at which it was aimed: otherwise why not have retained the general terms of the old Code. If the Legislature, in reproducing a provision of a repealed Act into a new law, accompanies it by certain limitations and restrictions, it is, we should think, to be presumed that it did not go out of its way to introduce terms which were intended to have neither meaning nor effect. Let us see what Section 53 says: 'The plaint may, at the discretion of the Court, and at or before the first hearing, be rejected, &c.;' Now, as we have already remarked, if the discretion of the Court herein mentioned was meant to be exercisable at any time, why not have adhered to the language of Act VIII of 1859; or, if that required improvement, why not have adopted the same expression as is used in Section 149, 'at any time before passing a decree;' or, to go further a field, have adopted the rules of Order 27 of the Judicature Act? It comes to this, that those who contend for the affirmative answer to the question put by this reference, virtually ask us either to run a pen through the words 'at or before the first hearing,' or to treat them as mere surplusage. But we do not think it is competent for us to construe a section of a legislative enactment in this loose fashion, or to leave out a whole section as having no particular meaning. To do so would be to violate the cardinal rule of construction referred to by Cockburn, C.J., in R. v. Bishop of Oxford L.R. 4 Q.B. 245 'that a statute ought to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.' But then, it is said, the introduction of the words 'may at the discretion of the Court 'qualifies the whole of Section 53. To our minds this is a fallacious argument. Used as a term in legislation, there is no special magic about the word 'may;' with one context it may be merely directory, with another absolutely imperative. Nor does the expression 'discretion of the Court' carry matters further; and it would have been equally apposite to say 'if the Court sees fit.' The words 'may at the discretion of the Court' were obviously only used for the purpose of conferring a power on the Courts, which without them they would not have had, of determining whether, assuming a plaint to be defective in any of the respects mentioned in Clauses (a), (b), (c), (d), (e) and (f), it should be (i) rejected, or (ii) returned for amendment, or (iii) amended then and there, as contradistinguished from the obligation cast upon them to reject or return a plaint in the cases provided for in Sections 54 and 57. Looking to the terms of Section 53, we gather that its object was to enable a Court, according as the plaint was more or less open to objection upon the face of it, either of its own motion or at the instance of the defendant on his first appearance, to summarily deal with it in a preliminary stage by one or other of the above three alternatives. In short, the expression 'may at the discretion of the Court' amounts to no more than saying 'it shall be lawful for the-Court,' or the Court 'may, if it think fit,' and beyond this it has no special significance or effect upon the rest of the section. The discretion of the Court must of course be that discretion which is described in Section 22 of the Specific Belief Act as 'not arbitrary, but sound and reasonable, guided by judicial principles, and capable of correction by a Court of Appeal.' It cannot, we think, be contended that a Court, except as provided in Section 53, which, by the way, finds its place in the Chapter relating to 'Institution of Suits,' has any authority to reject or to return a plaint for amendment, or to amend it; and, as far as we are aware, when once a suit has entered upon the stage of trial, it can only be disposed of by judgment and decree. If this be so, then in order to enable us to answer this reference in the affirmative, we must interpret not only the words ' may at the discretion of the Court,' but those which immediately follow and apparently govern them, 'and at or before the first hearing ' as conferring a general and unlimited power irrespective of all consideration of time. Surely when a time is expressed at or before which a, discretion may be exercised, it is only following another well-known rule of construction to hold that this excludes the notion that, save in specially excepted instances, it may be exercised afterwards. If this is not so, then at what stage of a suit may a plaint be rejected, returned for amendment, or amended for, if no time is provided, then it may be done at any time.
5. But we can quite understand, indeed we have already explained, why it was considered undesirable to leave the Courts unfettered discretion in such a matter. No doubt the Legislature felt the confusion and inconvenience that had arisen before and would arise again, if no clear and certain time were fixed within which the power conferred by Section 53 could be used. For instance, if there were no limitation, a Court might--though of course such an exercise of its discretion would be most unreasonable--after accepting the plaint, receiving the statement of defence, settling the issues and hearing the witnesses on both sides, reject the plaint, or return it for amendment on the ground of probity, or for misjoinder of causes of action, or for nonjoinder or mis-joinders parties, Section 34 notwithstanding, or for not being signed and verified. And was what result? In the one case, the rejection would be appealable as a decree but such appeal could only deal with the propriety or otherwise of the exercise of the Court's discretion in rejecting; in the other, the return for amendment would be appealable as an order upon like grounds; but, in both instances, the disposal of the suit in the main and upon its merits would be suspended while these quasi-interlocutory proceedings were pending. We cannot believe that it was ever intended to admit of such a state of things arising on the contrary, in our opinion, the authority given to the Court was meant to be exercised at a preliminary stage to, and not in the course of the trial of, a suit. Moreover, we are fortified in this view by an examination of the grounds on which a plaint may be rejected, returned for amendment, or amended, as declared in the Sub-clauses (a), (b), (c), (d), (e), and (f). It will be observed that these have reference to technical defects in the form of the plaint of a legal character, and are not concerned with the matters in difference bet weft) the parties to the suit.
6. As we have before remarked, when a Court exercises its discretion under Section 53, the appeal from its decision must be confined to the question of whether, looking to the plaint itself, such discretion has been properly exercised, and the merits of the case cannot be examined. We may perhaps not inappositely add that in the later section of the Code, which deals with the rejection or amendment of a memorandum of appeal, no limitation as to the time when that may be done is provided,--a circumstance that is not without significance.
7. We have thus briefly given the reasons that induce us to regard the language of Section 53 as imperative, and to hold that a plaint cannot be rejected, returned for amendment, or amended, after the first hearing. But before closing our judgment we feel bound to make one or two remarks with regard to a ruling of the Bombay Court, which, as an expression of opinion by the late Chief Justice of Bombay, demands attention. With deference to that learned Judge, we confess we do not feel ourselves pressed by the main argument on which he proceeds, namely, that the adoption of our view brings Clause (f) of Section 53 and the second paragraph of Section 32 into conflict. No doubt it is right to presume that the Legislature did not intend to make two provisions in the same Act which contradict one another. But is such the case in the two sections before us? Paragraph 2 of Section 32 gives a general power to a Court at any time, of its own motion, or on application, to order 'that any plaintiff be made a defendant,' or vice versa, '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.' Section 53, on the other hand, provides that a Court may, in its discretion and at or before the first hearing, reject or return for amendment or amend a plaint which, upon the face of it, shows nonjoinder or misjoinder of parties. These seem to us to he two totally different things; in the one case, the Court, so long as it does so 'at or before the first hearing,' must, if it properly exercises its discretion, either reject or return for amendment, or then and there amend the plaint, if it presents the defects mentioned in Section 53; in the other, it only alters the position of a party or parties to the suit, or adds a plaintiff or defendant, and, in such last mentioned instance, as the person appears for the first time, if the plaint is amended, so far as he is concerned, under Section 33, any such amendment as regards him will be 'at the first hearing.' But, even if there be a conflict, which we do not concede, it does not appear to us that, because the provisions of paragraph 2 of Section 32 are pro tanto inconsistent with those of Section 53, it necessarily follows that the words ' at or before the first hearing ' in the latter section are robbed of their significance and importance, any more than the same words in paragraph 4 of Section 32 are to be treated as surplusage. But as we have said, it seems to us that a distinction is to be drawn between rejecting, returning for amendment, or amending a plaint at or before the first hearing for nonjoinder or misjoinder of parties, patent on the face of it, or then known to the plaintiff or the Court, and another to change the position of a plaintiff or defendant, or to add a party inadvertently omitted, or whose presence is necessary for the object mentioned in Section 32. Giving the terms of Section 53 the best consideration we can, we find ourselves unable to coincide in the construction placed upon them by the two learned Judges of the Bombay Court. We think it more reasonable to suppose that when the Legislature introduced the words ' at or before the first hearing 'into the section, they were intended to have some meaning, and that the meaning they would ordinarily bear in the English language.
8. As to the ruling of their Lordships of the Privy Council referred to by Oldfifld, J., we have had the advantage of perusing the remarks made in reference thereto by Mahmood, J., and we entirely concur in his observations and in the distinction he draws between Sections 602 and 53 of the Code. It is therefore unnecessary for us to say anything further on the subject, and it only remains for us to add that the question put by the reference must be answered in the negative.
9. The question put to us in this case, though expressed in general' terms, is whether, under Section 53 of the Civil Procedure Code, a plaint may be rejected at any time subsequent to the first hearing of the suit; and, in considering this question, I have arrived at the same conclusion as the learned Chief Justice.
10. The words of Section 53, important for the consideration of the question, are: 'The plaint may, at the discretion of the Court, and at or before the first hearing, be rejected or returned for amendment within a time to be fixed by the Court, or amended then and there,' &c.; Did the Legislature intend the words which I have emphasized to be merely directory or mandatory? It has be'en said that when a time is fixed by a statute for the performance of any act or the exercise of any power, such fixation of time must be taken to be only directory, unless followed by express words prohibiting the performance of such act or the exercise of such power after the expiry of the time so fixed. And for this contention certain passages to be found at pp. 207-9 of Mr. Wilberforce's work on Statute Law have been referred to. One of the passages quoted by Field, J., in the case of Abasu Begam v. Umda Khanum I.L.R. 8 Cal. 724 in support of the view that the provisions of Section 492 of the Criminal Procedure Code of 1872, relative to the form of summons, were merely directory and not imperative. But neither the passage cited nor the ruling seems to me to be applicable to the present case, for the question before us is not one of mere form, nor does it relate to the manner in which official acts are to be performed. The point before us is one of much greater importance, for the interpretation of the statute in this case cannot be determined merely by the consideration that substantial compliance may be taken as full compliance.
11. By what considerations then should the interpretation of the statute be guided and determined in the present case? Before entering into the main question, I wish to premise that I take it as a sound explanation of law that 'enactments regulating the procedure in Courts seem usually to be imperative, and not merely directory. If, for instance, an appeal from a decision be given, with provisions requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into recognizances, or transmitting document within a certain time, a strict compliance would be imperative, and noncompliance would be fatal to the appeal.' (Maxwell on the Interpretation of Statutes, 2nd ed., 456). The rule of interpretation which governs the construction of words conveying a directory meaning was comprehensively stated by Lord Selborne in Julius v. Lord Bishop of Oxford L.R. 5 App. Cas. 214 see p. 235 : 'The question whether a Judge or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power.' Such then is the broad principle of interpretation, and, to use the language of Marcey, J., ' the general rule is that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed or the language used by the Legislature show that the designation of the time was intended as a limitation of the power of the officer.' Such an inference as is suggested in the last lines of the passage first quoted was drawn by the Court where a time was appointed for the taxation of costs upon petitions against private bills, and for the approval by the quarter sessions of the table of fees to be taken by clerks to justices. In both these cases, the provision as to time was held to be imperative, and non-compliance with it rendered the taxation of costs and the table of fees invalid. (Will), Stat. Law, p. 208.)
12. I agree with my brother Oldfield, so far as to concede that the words of the section, if interpreted regardless of any other consideration, would not necessarily import an absolutely imperative signification so as to invalidate the rejection of a plaint by the Court after the first hearing of the suit. But, in my opinion, the question cannot be so decided, and, as Lord Selborne said, it must be solved aliunde and with reference to the general scope and objects of the enactment. And, taking the dictum of the learned Lord with the rule laid down by Marcey, J., I formulate three questions as steps leading to the determination of the point now before us:
(i) What does the language, and context of Section 53 indicate?
(ii) What are the general scope and objects of the particular provisions contained in that section?
(iii) Is the nature of the act, that is, the power conferred upon the Court by the section, such us would warrant the conclusion that the phrase 'at or before the first hearing' was intended to be a limitation of the power so conferred?
13. First, then, as to the language and context of the section. The word 'may,' as a general rule, no doubt, imports a permissive meaning; but the rule is not universally applicable regardless of the context of the statutory provisions, and the objects with which they have been enacted. 'Where a statute directs the doing of a thing for the sake of justice or public good, the word 'may' is the same as the word 'shall.' 'Such was the rule laid down by Cockburn, C.J., in R. v. Bishop of Oxford L.R. 4 Q.B. 245. Again, to use the words of Jervis, C.J., in the case of Macdougal v. Paterson 11 C.B. 773 : 'When a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises. The word 'may' is not used to give a discretion, but to confer a power.' (Wilb., Stat. Law., pp. 196-7). In enacting that they ' may' or 'shall, if they think fit,' or 'shall have power,' or that 'it shall be lawful for them to do such acts, a statute appears to use the language of mere permission; but it has been so often decided as to have become an axiom that in such cases such expressions may have--to say the least--a compulsory force, and so would seem to be modified by judicial exposition.' (Max. on Int. of Stat., 2nd ed., p. 287.) What, then, should be the judicial exposition of the meaning of the word 'may' as it occurs in Section 53 of our Civil Procedure Code? Having considered the question, I hold that the word, as it occurs in the section, does not mean more or less than the equivalent phrase 'it shall be lawful' that is, the word is used to confer a power which the Court would not otherwise have, and the phrase 'at the discretion of the Court' precludes an absolutely imperative signification being attached to the word. But is the discretionary power so conferred to be wholly unrestricted either as to the circumstances under which, or as to the time within which it is to be exercised? My answer to the question is, that Section 53 does not contemplate the discretionary power to be so unrestricted in either of these respects. There is no question that in respect of one of these considerations, Clause (a) to (f) of the section limit the scope of the discretionary power, for it is not contended that the Court could summarily reject a plaint under circumstances other than those specified in the clauses. But it is said that the absence of the words 'but not afterwards' must be taken to imply that no such restriction as to time was contemplated by the Legislature. But if the Legislature intended to impose restrictions as to the circumstances, why should the discretionary power be regarded as unrestricted as to time. For, it seems tome, the argument based upon the absence of negative words, is applicable alike to the one limitation as to the other; and if the word 'may' and the phrase 'at the discretion of the Court' are allowed to impair the limitation as to time contained in the phrase 'at or before the first hearing,' they should also, as a logical consequence, be allowed to reduce the limitation as to circumstances contained in the various clauses of the section, from being essential conditions for the exercise of the discretionary power to mere suggestions which the Court may exceed or disregard. I am unable to place any such construction upon the words of the section, for, as I shall presently show, such an interpretation would be inconsistent with the very objects of the enactment.
14. But it is contended that a phraseology similar to that of Section 53 has been employed in Sections 110 and 111 of the Civil Procedure Code, and that, in both those cases, the only reason why the tendering of written statements, as a matter of right, is restricted to the first hearing is, that Section 110 is qualified by negative words contained in Section 112, and that Section Ill employs the words 'but not afterwards.' The argument has only apparent force, for it seems to me that, in both the cases so pointed out, the introduction of the negative words was necessary, not because the main propositions as to limitation of time absolutely needed such negative words, but because the exigencies of drafting required the employment of those words in order to facilitate the introduction of the qualifications which Section 112, on the one hand, and the latter part of the first paragraph of Section 111 on the other, were intended to attach to the rules contained in those sections. In both cases, the right of the parties to tender written statements after the first hearing is taken away, in both cases discretionary power is expressly conferred upon the Court to relax the rule. The exigencies of Section 53 required no such provisions, and no argument based upon the wording of the sections to which I have referred can apply to the interpretation of the section we are called upon to construe. There are, however, other sections of the Code which may more appositely be referred to for the purposes of comparison, for Section 53 is not the only clause of the Code which would bear the kind of interpretation which I am disposed to place upon that section. Similar restriction as to time is to be found in Section 328, which relates to the right of the decree-holder to complain of resistance or obstruction to the execution of his decree. The words are: 'the decree-holder may complain to the Court at any time within one month from the time of such resistance or obstruction.' Is the limitation of time in that section to be understood as merely directory or as mandatory? Is it to be considered as directory merely because the words 'but not afterwards' are absent from the section? It seems to me that, notwithstanding the use of the word 'may,' and notwithstanding the absence of negative words, the restriction as to time must be taken to be imperative--imperative in the sense of prohibiting the adoption of the procedure provided by that section for the decree-holder, if he allows the specified period to elapse. The limitation of time in that section is perhaps misplaced, but, in support of my view, I resort to the well recognized rule of interpreting statutes by comparison of statutory provisions in pari materia, and I find that Article 167, Schedule ii of the Limitation Act (which relates to the same matter), taken with the provisions of Section 4 of the Act, leaves no room for doubting the proposition that applications under Section 328 of the Civil Procedure Code cannot be entertained after the expiration of the period of one month therein specified, unless indeed the rules of computing the period of limitation in themselves permit an extension of the time. I wish to refer to another suction of the Civil Procedure Code which, whilst employing the word 'may,' specifies a limitation of time within which parties to a case are allowed to exercise a right conferred upon them by the statute. Section 567 provides that either party to an appeal 'may, within a time to be fixed by the Appellate Court, present a memorandum of objections to the finding' recorded by the lower Court upon remand of issues. In interpreting the corresponding Section 354 of the old Code (Act VIII of 1859), which was similarly worded, a Full Bench of this Court in Ratan Sinqh v. Wazir I.L.R. 1 All. 165 held that, after the expiry of the period fixed for filing objections, neither party could as a matter of right claim to be heard, but that the Court had discretion to allow such objections even after that period. The rule so laid down has never been departed from by this Court, and the same interpretation has been placed upon Section 567 of the present Civil Procedure Code. But it is suggested that the interpretation so placed upon the section, far from supporting my view, is calculated to support the contrary opinion; because there the Court was held to have discretion to extend the period. In answer to this, I have only to say that the limitation of time in that section was obviously meant to be a restriction upon the rights of the parties, and not upon the discretion of the Court; and I say with emphasis that the ruling is a distinct authority for the proposition that such restriction of time was held to be imperative, notwithstanding the use of the word 'may' notwithstanding the absence of words which could import the meaning of the phrase ' but not afterwards.' In that section, there was nothing to show that any restriction as to time was intended to be imposed upon the discretion of the Court--the Court that could fix the time could also extend it. But the distinction which I have thus drawn leads me to the consideration of another section of the Code to which my brother Oldfield has referred, and in which limitation of time is specified for the performance of certain acts to be done by the party preferring an appeal to Her Majesty in Council. The Section is 602 of the Civil Procedure Code, the ipsissima verba of Section 11 of Act VI of 1874. The section provides that 'if the certificate be granted, the applicant shall, within six months from the date of the decree complained of, or within six weeks from the grant of the certificate, whichever is the later date, give security for the costs of the respondent,' and do certain other acts mentioned in the section. In the case of Soorjmukhi Koer I.L.R. 2 Cal. 272, a Bench consisting of the learned Chief Justice and two other learned Judges of the Calcutta High Court, interpreting the words which I have quoted, held that the phrase 'shall within six months' did not import an absolutely imperative meaning, and the time named in the section was subject to extension by the sound discretion of the Court. The rule so laid down was adopted by the Lords of the Privy Council in Burjore v. Bhagana I.L.R. 10 Cal. 557 : L.R. 11 Ind. Ap. 7 which was followed by a Full Bench of this Court in Fazul-un-nissa Began v. Mulo I.L.R. 6 All. 250. The tidings are undoubtedly strong authorities that the limitation as to time within which a party to the suit had to perform certain acts was merely directory, and did not exclude the discretion of the Court to extend the time, even though the words of the statute importing such limitation were preceded by the word 'shall'--a word which is usually interpreted to be imperative, whilst 'may' is of course ordinarily taken to be permissive only. The ruling of the Privy Council, so far as the interpretation of the limitation as to time in Section 602 is concerned, has undoubtedly settled the law. The observations of their Lordships upon the point, as well as of the learned Judges of the Calcutta Court in the case approved by the Privy Council, are briefly expressed, and I confess that the rulings kept my mind in suspense for some time in regard to the question whether they did not absolutely govern the interpretation of Section 53 also. But having given my earnest consideration to the subject, 1 am unable to agree with my brother Oldfield in thinking that they solve the difficulty now before us. I distinguish the wording of Section 53, relating to the limitation of time, from the language of Section 602, and my reasons for the distinction are similar to those which I have expressed in connection with the interpretation of Section 567 by this Court. The restriction as to time contained in that section, as also in Section 60S of the Code, are restrictions upon the rights of the parties, and the rulings to which I have referred are therefore consistent with the principle whereon the Full Bench ruling of this Court proceeded in interpreting Section 354 of the Code of 1859. In neither of the sections does the language of the statute employ any phrase which could be taken to be a restriction imposed upon the powers of the Court, whilst in Section 53 the adverbial clause 'at or before the first hearing,' if it has any meaning, must refer to the power of the Court--it certainly cannot refer to anything else. But this is not the only reason why I distinguish the present case from the Privy Council ruling in Burjore v. Bhagana I.L.R. 10 Cal. 557 : L.R. 11 Ind. Ap. 7. I have already said that the scope and objects of particular statutory provisions, and the nature of the act to which they relate, are essential considerations for arriving at correct conclusions in construing the language of the Legislature. That those considerations affect the present question, I shall presently endeavour to show. But I may here say in passing that, both in the case before the Calcutta Court and in that before the Privy Council, there had already been substantial compliance with the spirit and objects of the statute. In the former case, deposit of costs within time could not be made, because the day for making the deposit fell at a time when the Court was closed, and, in the case before the Privy Council, a deposit within time had already been made or was attempted to be made within time, but it was by a bona fide mistake wrongly made in the Court of First Instance--a state of things which even the rigid rules of the law of limitation recognize as reasons for extending the period of limitation. That under such circumstances the intention of the Legislature had been substantially complied with, so as to entitle the party affected by the limitation of time to the discretionary indulgence of the Court, is a proposition naturally justifiable by the rules of interpreting statutes, for it neither defeats the object of the limitation of time, nor is it productive of any injustice, hardship, or inconvenience. And I cannot help thinking that in placing such interpretation on Section 602 of the Code, the scope and objects of the section, the nature of the act to which the limitation of time refers, the absence of restricting words regarding the powers of the Court, are circumstances which could not have been ignored. And I cannot help thinking that, bearing these considerations in mind, there is scarcely anything in common between Section 602 and Section 53 of the Code. My answer, then, to the first question formulated by myself is that there is nothing in the large of Section 53 to lead us to the conclusion that the limitation of time to the first hearing was intended by the Legislature to he subject to extension or variation at the discretion of the Court, And I shall presently endeavour to show that every other consideration supports the conclusion that the limitation of time is intended to be imperative. This leads me to the other two points enunciated by me at the outset.
15. The general scope of the section, as the words of the statute clearly show, is to confer a power upon the Court, which power it would otherwise not possess, and to lay down rules for guiding and restricting the exercise of that power, by indicating the conditions under which it may be exercised. Those conditions consist of two distinct elements: one relating to the time or the occasion when the power is to be exercised, the other relating to the cases to which that power is applicable. The former is expressed in the phrase 'at or before the first hearing,' the latter are enumerated in the various clauses which form an essential part of the section, and the whole section is rendered subject to the limitations contained in the proviso, the last part of the section being unimportant for the present discussion. Such, then, is the general scope of the section. Its primary object, in common with other rules of adjective law, is to secure, as far as practicable, uniformity of procedure to be adopted by the Courts. Further, the object is to enable the correction of technical errors in the plaint at the earliest possible stage, and to prevent the prolongation of a litigation which, by reason of some intrinsic defect, must, if that defect is not cured, finally end in the dismissal of the suit, or introduce an element of confusion. Such, then, in my opinion, are the general scope and objects of the provisions contained in Section 53 of the Code.
16. As to the nature of the power conferred upon the Court by Section 53, I need not say much, for it seems to mo obvious that the power of rejecting plaints under that section is essentially a discretionary power, exercisable summarily by the Court suo motu in regard to matters which, as the clause of the section shows, are such as can be fully considered and decided by reading the plaint itself. Therefore the nature of the power certainly does not require that the time for its exercise should be extended to a later stage of the trial than the first hearing of the suit. And it seems to be an essential element of the nature of such a discretionary power that it should be exercised promptly and on the earliest possible occasion. For, if the power be held to be exercisable at any time, we have to face the contingency that a plaint may be rejected for some one or other of the reasons mentioned in the various clauses of the section at a stage when the entire evidence in the case has been taken, when the final argument of the parties has been heard, and nothing more remains to be done by the Court than decreeing or dismissing the suit.
17. I have dwelt so much upon the general scope, objects and nature of the section, because, regardless of these considerations, neither the word 'may,' nor the word 'shall,' nor the fixation of time, nor the absence of prohibitive words, can in themselves furnish an unerring guide to the interpretation of a statutory provision like the one now under consideration. If such were not the rule of construction, almost every other section of the Penal Code, many sections in the Evidence Act, and in other statutes wherein the word 'may' occurs without being followed by negative words, would be obviously misunderstood. To illustrate what I mean, I take Section 379 of the Penal Code which, in providing punishment for theft, lays down 'imprisonment of either description for a term which may extend to three years,' &c.; Now, in this section the word 'may' occurs, and the limit of punishment is described without any negative words to indicate that the punishment shall not be move than what is provided. I take it that the limitation contained in that section is undoubtedly a restriction upon the power of the Court, and that, notwithstanding the absence of express prohibition, such limitation cannot be disregarded or exceeded. I now take one section from the Evidence Act. Section 61 of that Act provides that 'the contents of documents may be proved either by primary or by secondary evidence.' Here again is the word 'may' used without being followed by any prohibitive words importing the meaning of the phrase 'but not otherwise.' Yet the section can hardly be understood to mean that the contents of documents can he proved by a third kind of evidence which is neither primary nor secondary.
18. After what the learned Chief Justice has said, I need say no more as to the conclusions derivable from the comparison of the language of Sections 29 and 32 of the Code of 1859 with that of Section 53 of the Code of 1877, reproduced in the present Code. But 1 wish to add that Mr. Broughton, in his note to Section 53 of the Code of 1877, has interpreted the introduction of the phrase 'at or before the first hearing' to be mandatory and restrictive of the discretion of the Court. The learned Chief Justice has also pointed out the uncertainty of practice, inconvenience to parties, delay in the disposal of litigation, which would result from any such interpretation as would leave the Court in possession of a discretionary power of rejecting plaints summarily exercisable at any stage of the suit without any definite restriction, or subject to a restriction such as would practically be no restriction at all. Such could hardly have been the intention of the Legislature in framing Section 53 of the Civil Procedure Code. No doubt, Westropp, C.J., in Modhe v. Dongre I.L.R. 5 Bom. 609 expressed views opposed to the opinion which I have formed in this case, and my brother Oldfield has adopted the ruling. In regard to that ruling, however, it is hardly necessary for me to say more than has already been said here by the learned Chief Justice; but with due deference to my brother Oldfield's views on the subject, and with all the profound respect which I have always felt for any exposition of the law by Sir Michael Westropp, I must confess that the reasons upon which his ruling proceed do not convince me that the interpretation which I have placed on Section 53 would render that section inconsistent with any other part of the Code. There seems scarcely more reason for holding that, if the limitation as to the first hearing contained in Section 53 be understood in the imperative sense, Clause (f) of that section would become inconsistent with the second paragraph of Section 32, than there would be for saying that the provisions of Section 110 are inconsistent with the provisos to Section 112. My own view is, that the powers of the Court under the second paragraph of Section 32, as under Section 112, are intended to be applicable to special cases, and that the very fact that such extensive powers are given to the Court in those cases tends to show that the omission in regard to the powers conferred by Section 53 was intended to limit the exercise of the discretionary power, thereby conferred, to the first hearing. But out of respect for the dicta of Westropp, C.J., I must explain the difficulties I have in accepting his view. The most important part of the ratio decidendi whereon his judgment proceeds is that by understanding the limitation of time of Section 53 as imperative, 'we should bring Clause (f) of Section 53 into direct conflict with the second passage of Section 32.' Now, if this is so, the argument is undoubtedly strong in favour of placing a permissive meaning on Section 53. But I cannot help feeling that this is not so. Under Section 32, there are two distinct powers given to the Court. The first is the power of striking out the name of a party 'improperly joined' in the suit. The second power contained in the second paragraph of the section relates to the transposition and the addition of parties. Now the exercise of the first power is limited to the first hearing, the second power is not so limited, and so far I concur with Westropp, C.J. But this is so because the law says so; and I confess that I fail to see how this interpretation brings Section 32 in conflict with Section 53, if an imperative meaning is placed upon the limitation of time contained in the latter section. For I am unable to hold that the summary return of the plaint for amendment, or its rejection for reasons mentioned in Clause (f) of a. 63, are matters synonymous or convertible with the action of the Court under the second paragraph of Section 32, which relates to the addition of parties, and says nothing as to the summary rejection of the plaint or its return for amendment. The power of a party to amend the plaint after it has been once returned to him under Section 53 is practically unrestricted, and restricted only by the terms of the proviso to that section. On the other hand, the addition of parties under the second paragraph of Section 32 is limited to persons whose presence the Court that has to decide the suit considers necessary 'to adjudicate upon and settle all the questions involved in the suit.' Nor indeed can there be amendment of the plaint in the same extensive sense as under Section 53; for the amendment contemplated in consequence of the action of the Court under the second paragraph of Section 32 musii be limited to such matters as are necessary to show the connection which the new party has with reference to the scope of the suit. Under Section 53 the plaint may be either returned for amendment or rejected altogether ' under Section 32 neither of these can happen, and it seems to me that the powers exercisable under the two sections are of distinct characters, which can hardly be called consistent or inconsistent with each other. The second paragraph of Section 32 enahles the Court to transpose parties and to cure defects in the frame of a suit so far as the nonjoinder of parties is concerned,--defects which, if they had her come apparent at the first hearing, might have led to the rejection of the plaint, or to its being returned for amendment under Section 53. But if the plaint is not so rejected or returned at the first hearing, then, the Court having no longer the power either to return or reject the plaint, the provisions of as. 32 and 33 are still available. So that, according to my view, the provisions of Section 53, as I understand them, are not inconsistent with the terms of Section 32, which deal neither with rejecting plaints nor returning them--a circumstance which tends to show that the exercise of the discretionary power conferred by the former section is limited to the first hearing of the suit. If this were not so the greater portion of Section 32 would be superfluous, for Section 53 itself would meet the contingencies for which Section 32 provides. I repeat that I cannot ignore the fact that under Section 32, whatever order the Court may pass to cure defects arising from nonjoinder of parties, it is not at liberty either to return the plaint or to reject it. In the one case the plaintiff is put out of Court pro tern in the other case the Court orders that to be done which he might himself have done if he had been properly advised. That there is a distinction between the action of the Court under Section 53 and that under Section 32 is recognized by the Code its-elf, for orders rejecting the plaint are appealable as decrees within the meaning of Section 2, and orders returning plaints for amendment are appealable under a Clause (f) of Section 588, different to the Clause (2) under which orders passed under Section 32 are appealable. The nature of the action of the Court under the two sections is thus distinguishable, and, in this view of the law, there is no conflict between Clause (f) of Section 53 and the second paragraph of Section 32. Nor does the difficulty contemplated by Westhopp, C.J. arise with reference to Section 34 of the Code. It may be that that section 'limits' in point of time the right of the defendant to object for want of parties but it does not limit the right of the plaintiff to add parties.' But this view does not clash with the interpretation which I have placed upon Section 53; for, if the exigencies of a case require the addition of a party an defendant after the first hearing of the suit is over, Section 32 meets the case. The name of the new defendant could be added under the conditions which Section 32 provides, and the Court would direct the necessary amendment of the plaint under Section 33.
19. Indeed, it seems to me that the tendency of the other provisions of the Code points to conclusions in favour of the view which I have taken. Section 31 lays down that 'no suit shall be defeated by reason of the misjoinder of parties, and the Court may, in every suit, deal with the matter in controversy to far as regards the rights and interests of the parties actually before it.' This is a general and imperative rule, and the next Section (32), whilst confining to the first hearing the power of the Court to strike out parties from the plaint, gives the Court power to add parties whose presence it deems necessary 'to adjudicate upon and settle all the questions involved in the suit.' Then follows Section 33, which gives liberty to the Court to amend the plaint when the action under Section 32 renders such amendment necessary. The next section (34) imperatively lays down the rule that objections as to nonjoinder or misjoinder of parties 'shall he taken at the earliest possible opportunity, and in all cases before the first hearing. Leaving the intermediate sections alone, Chap. IV deals with the frame of the suit, and in that chapter occurs Section 45, whioh gives discretionary power to the Court to order separate trials of the causes of action included in one suit. The power so conferred is clearly limited to 'any time before the first hearing,' unless 'the parties agree ' that the same may be done 'at any subsequent stage of the suit.' In keeping with these provisions is Section 46, which enables the defendant to apply 'at any time before the first hearing, or, where issues are settled, before any evidence is recorded' to confine 'the suit to such causes of action as may be conveniently disposed of in one suit.' Here again the limitation as to time is clearly imperative, though the negative words are absent. Then comes Section 47, which allows such amendment as may be necessitated by adoption of the procedure provided by the immediately preceding section. The law having so far laid down that, as far as possible, technical difficulties as to the plaint must be dealt with at the earliest possible stage of the suit, confers a distinct power, in Section 53, which is not conferred by any preceding section. If I may use the expression, the really important 'catch words' of the power are 'reject' and 'return'--words which are not to be found in Section 32 or any other sections to which I have referred. And though the word 'amend' also occurs in Section 53, it must, by reason of the context, be necessarily taken to refer to the amendments arising from any of the causes described in the section, and not from causes already provided for. Again, so far as the word 'amend' is concerned, the adverbial phrase 'then and there' necessarily limits the power to the first hearing, that is, amendments for any of the particular causes mentioned in the section must be made at that stage. This corroborates my view, for I fail to see how 'then and there' can be taken to refer to any stage of the suit other than that mentioned in the section. At least such is my interpretation of a phrase which is not a phrase of the language that is my own. But, as I said before, the main difficulty relates to the words 'return' and 'reject.' In this case we are concerned only indirectly with the power of the Court to return the plaint for amendment, and we are directly concerned with the power of the Court to reject the plaint for any of the reasons described in Section 53. So far as the ruling of Westeopp, C.J., is concerned, I may say that if the ratio decidendi of his judgment had been limited to the simple proposition that the plaint may, under certain circumstances, be amended by the Court after the first hearing, (e.g., cases contemplated by Sections 32, 33 and 47), for causes other than those described in Section 53, I should not necessarily have regarded that ruling as an authority against the view which I have taken on the particular point we are called upon to determine in this case. But upon the exact point directly before us, I hold that the limitation of time contained in the phrase 'at or before the first hearing,' as it occurs in Section 53 of the Code, was intended by the Legislature to be imperative, so as to prohibit the exercise, after the specified period, of the power conferred by the section regarding the rejection of plaints. What I have said does not, of course, apply to rejection of plaints under Section 54, wherein no words importing a limitation of time occur--a circumstance which again favours the conclusion at which I have arrived. And I wish to add that, because the question is not now before us, nothing that I have said here must be taken to lay down any rule, one way or the other, respecting the powers of the appellate Court in such matters.
20. My answer to the question now before us is in the negative.