Carlos Alberto Perez Lafuente vs. UOI & Ors

W.P.(C) 4573/2012 Page 1 of 39 $~23 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: 10.01.2019 % W.P.(C) 4573/2012 CARLOS ALBERTO PEREZ LAFUENTE ..... Petitioner Through: Mr. Ashutosh Kumar and Mr.Vinod Chauhan, Advocates. versus UOI & ORS ..... Respondents Through: Mr. Jasmeet Singh, CGSC with Mr.Srivats Kaushal and Mr. Aditya Madaan, Advocates for UOI. Mr. Anil Dutt and Ms. Gunjan Hans, Advocates for intervener. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE A.K. CHAWLA VIPIN SANGHI, J. (ORAL) CM APPL. 13069/2018 (under Order 1 Rule 10 CPC) 1. By this application, applicant seeks to intervene in the matter. Since we have heard the submissions of learned counsel for the applicant on merits, this application has become infructuous. The same is accordingly disposed of. W.P.(C) 4573/2012 & CM APPL. 9501/2012 (for stay) 2. The petitioner has preferred the present writ petition to assail the W.P.(C) 4573/2012 Page 2 of 39 order dated 30.01.2012 passed by the Deputy Controller of Patents & Designs-Respondent No.4, whereby respondent No.4 refused to take on record the request of the petitioner for examination of his patent application. The petitioner also seeks a Writ of Certiorari to quash the decision of the respondents to treat the petitioner‟s application (7318/DELNP/2008) as „Deemed to be Withdrawn‟ under Section 11-B (4) of the Patents Act, 1970 (The Act). A further direction is sought to respondent Nos. 2 to 4 to take the petitioner‟s Form-18 (request for examination), and to process the subject patent application as per the provisions of the Act. 3. The petitioner filed a PCT application (international phase), being application number PCT/EP2007/052939 titled as „Method and System for monitoring a mobile station presence in a special area‟ on 27.03.2007, claiming priority from 28.03.2006, in respect of its European patent application (#06111804.8). The petitioner chose India as one of the designated states and the national phase application (India) was filed by him on 28.8.2008 being application number 7318/DELNP/2008. 4. The petitioner then moved an application in Form-18 i.e. he made a request for examination of his application on 19.11.2010. The Patent Office, Delhi, however, by a non-speaking order dated 25.11.2010 refused to accept the said Form-18 as filed by the petitioner‟s agent. Being aggrieved by the said action of the respondent, the petitioner approached this Court by preferring W.P.(C) No. 6975/2011. The said writ petition was disposed of on 23.09.2011 with a direction to the Patent Office to examine the petitioner‟s representation and to pass an order after hearing the petitioner. The petitioner was, accordingly, granted hearing and the impugned order came to W.P.(C) 4573/2012 Page 3 of 39 be passed by the Deputy Controller of Patents & Designs-Respondent No.4 on 30.01.2012, rejecting the said representation. The petitioners‟ application in Form-18 was considered as time barred, since the same was not moved within 48 months of the priority date, which was earlier of the two dates – the priority date and the date of the patent application made under the Act. The delay in moving the Form-18 application was not condoned by the Respondents. In this background, the petitioner has preferred the present writ petition. 5. The writ petition was initially listed before the learned Single Judge of this Court. Since it was urged on behalf of the respondent that the issue raised by the petitioner was covered against the petitioner by the judgment in „Nippon Steel Corporation v Union of India‟, W.P. (C) No. 801/2011, decided on 08.02.2011, and that the said decision was pending consideration in a Letters Patent Appeal, the proceedings in writ petition were adjourned. 6. The petitioner then moved an application to intervene in LPA 379/2011, which was preferred against the decision in Nippon Steel Corporation (supra). The same was allowed on 09.12.2014. Consequently, the writ petition came to be listed before the Division Bench. In the meantime, the said LPA No. 379/2011 preferred in the case of Nippon Steel Corporation (supra) was withdrawn. However, the issue raised by the petitioner remains to be answered. Thus, the writ petition has been heard. 7. Before we proceed further, to appreciate the controversy and the submissions of learned counsels we consider it appropriate to extract the relevant portions of Section 11B of the Act and Rule 24B of the Patents W.P.(C) 4573/2012 Page 4 of 39 Rules, 2003 (The Rules). They read as follows:- Section 11 B “11B. Request for examination.— (1) No application for a patent shall be examined unless the applicant or any other interested person makes a request in the prescribed manner for such examination within the prescribed period (2) … … … (3) In case of an application in respect of a claim for a patent filed under sub-section (2) of section 5 before the 1st day of January, 2005 a request for its examination shall be made in the prescribed manner and within the prescribed period by the applicant or any other interested person. (4) In case the applicant or any other interested person does not make a request for examination of the application for a patent within the period as specified under sub-section (1) or sub-section (3), the application shall be treated as withdrawn by the applicant: Provided that— (i) the applicant may, at any time after filing the application but before the grant of a patent, withdraw the application by making a request in the prescribed manner; and (ii) in a case where secrecy direction has been issued under section 35, the request for examination may be made within the prescribed period from the date of revocation of the secrecy direction.”(emphasis supplied) Rule 24B “24B. Examination of application.— W.P.(C) 4573/2012 Page 5 of 39 (1) (i) A request for examination under section 11B shall be made in Form 18 within forty-eight months from the date of priority of the application or from the date of filing of the application, whichever is earlier; (ii) The period within which the request for examination under sub-section (3) of section 11B to be made shall be forty-eight months from the date of priority if applicable, or forty-eight months from the date of filing of the application; (iii) The request for examination under sub-section (4) of section 11B shall be made within forty-eight months from the date of priority or from the date of filing of the application, or within six months from the date of revocation of the secrecy direction, whichever is later; (iv) The request for examination of application as filed according to the 'Explanation' under sub-section (3) of section 16 shall be made within forty-eight months from the date of filing of the application or from the date of priority of the first mentioned application or within six months from the date of filing of the further application, whichever is later; (v) The period for making request for examination under section 11B, of the applications filed before the 1st day of January, 2005 shall be the period specified under the section 11B before the commencement of the Patents (Amendment) Act, 2005 or the period specified under these rules, whichever expires later.”(emphasis supplied) 8. The controversy has arisen, since the petitioner moved the application requesting for examination in Form-18 on 19.11.2010 i.e. beyond the period of 48 months from the earlier of the two dates, i.e. the date of priority (28.03.2006) and the date of the application (i.e. 28.08.2008). However, the said request for examination was made within 48 months of the filing of the application for grant of patent by the petitioner before the Patent Office, New Delhi on 28.08.2008. Thus, the issue that arises for consideration, W.P.(C) 4573/2012 Page 6 of 39 firstly, is from which date the period of 48 months prescribed in Rule 24- B(1)(i) of the Rules should be computed – from the date of priority, or from the date of filing of the application under the Act. The second issue that arises for consideration is, whether the said limitation of 48 months is directory or mandatory, i.e. whether the delay in filing the request for examination in Form-18 can be condoned, or not. 9. The submission of Ld. Counsel for the petitioner is that said period is directory. The petitioner submits that the Controller of Patent was empowered to exercise the discretion to condone the delay, if any, upon examination of the justification offered by the applicant. The petitioner has also drawn the attention of the Court to the facts and circumstances of his case to show that the delay, if any, is entirely bona fide and on account of the wrong interpretation of Rule 24-B(1) (i) published in the publication of WIPO wherein, instead of the word “earlier” used in the said Rule, the word “later” was printed. The petitioner also relies upon communication received from WIPO, to claim that it had published its interpretation of the Rule after approval from the Patent Office under the Act. The petitioner has also relied upon e-mail communications received from its Indian agent, even prior to the expiry of the period of 48 months from the date of priority, which also misled the petitioner to believe that the petitioner had time to move his request for examination in Form-18 till the expiry of 48 months from the date of filing of the application for grant of patent under the Act. 10. The submission of learned counsel for the petitioner is that the introduction of the deferred examination system was to reduce the workload of the Patent Office, since prior to introduction of the said system, all W.P.(C) 4573/2012 Page 7 of 39 applications necessarily had to be examined. By introducing the deferred examination procedure, only such of the applications need to be examined about which the applicant is serious, and which he wishes to pursue. The submission is that the correspondence undertaken by the petitioner with its Indian counsel/agent would show that the petitioner was throughout diligent and interested in pursuing the application, and it is not a case where the petitioner was casual or sleeping over his rights. Learned counsel submits that the consequence of interpreting the period of limitation of 48 months strictly – from the earlier of the two, i.e. the priority date and the date of the application, would be grave for the petitioner, since his right to claim statutory monopoly over his invention in the Indian jurisdiction would be lost forever. 11. Learned counsel for the petitioner has sought to place reliance on the decision of the Gujarat High Court in Amitara Industries Ltd. vs. Union of India, (2014) 27 GSTR 186 (Guj) rendered by the Division Bench of the said Court, wherein the Division Bench held that „if an aggrieved person knocks the door of High Court seeking redressal under writ jurisdiction for valid reasons, to obviate extraordinary hardship and injustice such challenge can be entertained even beyond the period of limitation‟. He also placed reliance on Rafiq and Another vs. Munshilal and Another, (1981) 2 SCC 788, wherein the Supreme Court held that delay on account of mistake of the counsel should not prejudice the rights of the party. 12. Learned counsel for the intervener has sought to urge that the word “earlier” used in Rule 24-B(1)(i) should, in fact, be read as “later”, since, in most cases, the date of priority would invariably be earlier to the date of W.P.(C) 4573/2012 Page 8 of 39 filing of the application, and therefore, the use of the word “earlier” would become a surplusage, if literally construed. For it to have a meaningful interpretation, the said word should be read as “later”. In this regard, he refers to Rule 24-B(1)(iii),(iv) and (v). All of them use the word “later”. 13. On the other hand, Mr. Jasmeet Singh submits that the period of limitation prescribed in Rule 24-B(1)(i) is firm, and the same cannot be relaxed. He submits that Rule 138 of the Rules specifically excludes the power of the Controller to extend the time prescribed, inter alia, in respect of the time prescribed under sub-Rule (1) (i) of 24-B. Since there is an express bar to extension of time, inter alia, in respect of the time prescribed in Rule 24-B(1) (i), irrespective of whatever the justification the petitioner may have for not making the request for examination in Form-18 within 48 months of the earlier of the priority date and the date of filing of the application, the said period of limitation cannot be extended and the petitioner is bound to suffer the consequences of not making the application for examination within the prescribed period. Consequently, in terms of Section 11-B (4) of the Act, the application of the petitioner for grant of patent is bound to be treated as withdrawn. He also places reliance on the decision of „Nippon Steel Corporation vs. Union of India‟, 2011(3) R.A.J. 254(Del). He submits that the word “earlier” cannot be read as “later” in Rule 24B(1)(i) as that would amount to doing violence to the express words of the statute. He submits that the vires of the said Rule is not under challenge. He submits that the plain grammatical meaning should be adopted while reading the said Rule, as it is clear and does not admit of ambiguity, or lead to absurdity – if read literally. W.P.(C) 4573/2012 Page 9 of 39 14. We have heard the learned counsel for the petitioner, as well as learned counsel for the intervener on the one hand, and learned Standing Counsel for the respondents on the other hand, and have considered the respective submissions. 15. The deferred examination system was introduced in the Act by the Patents (Amendment) Act, 2002. Prior to that, all patent applications were required to be examined by the Controller of Patents under Section 12. Section 11B (1) provides that an application for grant of patent would not be examined, unless a specific request is made by the applicant in the prescribed manner for examination thereof. Such an application for examination is required to be made within the prescribed period. The consequence of the application/request for examination not being made within the prescribed period is also provided in sub-section (4) – to say that such an application would be treated as withdrawn by the applicant. Even prior to amendment by Act 15 of 2005 (w.e.f. 01.01.2005), Section 11B(4) provided that in case the applicant, or any other interested person, does not make a request for examination of the application for patent within the period prescribed, the application shall be treated as withdrawn by the applicant. 16. Section 11-B(1), as its stood prior to amendment by Act 15 of 2005 w.e.f. 01.01.2005, provided that “No application for patent shall be required to be examined unless the applicant or any other interested person makes a request in the prescribed manner for such examination within forty-eight months from the date of filing of the application for patent”.(emphasis supplied). W.P.(C) 4573/2012 Page 10 of 39 17. Thus, prior to amendment of Section 11B with effect from 01.01.2005, there was no reference to the date of priority in Section 11B. Pertinently, Section 135 – which falls in Chapter XXII of the Act – and deals with International Arrangements, was also amended by Act 15 of 2005 (w.e.f. 01.01.2005). Section 135 stipulates that in respect of convention applications, the “priority date” of a claim of the complete specification, being a claim based on matter disclosed in the application for patent made in a convention country (called the basic application) is the date of making of the basic application. On the aspect: which date is to be considered as the “priority date”, the amended provision appears to be similar to the one that existed in the Act prior to the introduction of Amendments vide Amendment Act 15 of 2005. Section 135(1) of the Act, as amended, reads as follows: “135. Convention applications.—(1) Without prejudice to the provisions contained in section 6, where a person has made an application for a patent in respect of an invention in a convention country (hereinafter referred to as the "basic application"), and that person or the legal representative or assignee of that person makes an application under this Act for a patent within twelve months after the date on which the basic application was made, the priority date of a claim of the complete specification, being a claim based on matter disclosed in the basic application, is the date of making of the basic application. Explanation.—Where applications have been made for similar protection in respect of an invention in two or more convention countries, the period of twelve months referred to in this sub- section shall be reckoned from the date on which the earlier or earliest of the said applications was made.” (emphasis supplied) 18. Section 11B(1) as it now exists – does not, by itself, prescribe W.P.(C) 4573/2012 Page 11 of 39 the period within which the request for examination of the patent application has to be made, but leaves the aspect of prescribing the said period of limitation elsewhere. The “prescribed manner” and the “prescribed period” were prescribed under the amended Rules, which too were amended with effect from 5th May, 2006. Rule 24B deals with these aspects, which has been noticed hereinabove. 19. The first Rule of statutory interpretation is to adopt the literal interpretation of the statute and to go by the grammatical meaning of the words used in the statute, unless there is a good reason not to do so, e.g. where it leads to absurdity, or there is some other compelling reason for departing from this rule of construction. In this regard, we may refer to the observation of the Supreme Court in Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd., AIR 1955 SC 376. The Supreme Court in this decision observed: “…. …. The cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation…. …”. 20. “Principles of Statutory Interpretation” by Justice G.P. Singh 12th Edition 2010 extracts portions of the speeches of the English Law Lords in a few decisions relevant on the subject. We may extract what we consider relevant from the said commentary from pages 85 and 86. The same reads as follows: W.P.(C) 4573/2012 Page 12 of 39 “… … …“The true way”, according to LORD BROUGHAM is, “to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered” Crawford V. Spooner, [(1846) 4 MIA 179, p. 181 : 6 Moo PC 1 (PC)], and in the words of VISCOUNT HALDANE, L.C., if the language used “has a natural meaning we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so.[Attorney General V. Milne, (1914-15) All ER Rep 1061, p. 1063 : 1914 AC 765 (HL)]” 21. The submission of learned counsel for the petitioner, as well as learned counsel for the intervener that the period of 48 months prescribed in rule 24B(1)(i) should be computed from the “later” of the two dates, i.e. the date of priority and the date of filing of the application under the Act cannot be accepted, in view of the clear language used in the said statutory rule. The plan and grammatical meaning of the word “later” is opposite of the word “earlier”. It cannot be said that the word “later” is a synonym for the word “earlier”. In fact, the word “later” is the antonym of the word “earlier”. When we examine the meaning of the word “earlier” in the context in which it has been used, we do not find any justification for not adopting the plain and grammatical meaning of the word “earlier”, and there is no justification brought forth for reading the same as “later”. 22. No doubt, clauses (iii), (iv) and (v) and Rule 24B(1) use the word “later”. However, that by itself is no reason to construe the word “earlier” used in Rule 24B(1)(i) to mean “later”. When one examines clauses (iii), (iv) and (v) Rule 24B(1), one finds that they deal with materially different fact situations which are covered by proviso (ii) to Sub-Section (4) of W.P.(C) 4573/2012 Page 13 of 39 Section 11(B); explanation to Section 16(3), and; applications filed before 01.01.2005 (i.e. prior to coming into force of the Amendment Act, 2015 of 2005). 23. Learned counsel for the petitioner and the learned counsel for the intervener have not been able to point out as to how the adoption of the rule of literal interpretation in the matter of interpretation of Rule 24B(1)(i) leads to any absurdity, or to a result which goes contrary to the purpose of the statute. Literal interpretation of Rule 24B(1)(i) does not render it unworkable. The submission that adoption of the literal and grammatical interpretation would lead to prejudice to the petitioner, since the petitioner was acting bona fide under a false impression created by an incorrect opinion and advice, cannot be a ground to bend the interpretation of the law. While undertaking the exercise of statutory interpretation, the facts of a particular case – in the context whereof such exercise may be undertaken, cannot have a bearing on the interpretation. The facts of the case only serve as a “situation” to test the efficacy of the interpretation of the statute. If the interpretation of a statute were to be guided by the end result that it would bring about in the facts of a given case, then the exercise of interpretation would have to be undertaken afresh, whenever a fresh fact situation presents itself. That is not how the exercise of interpretation of a statute is undertaken. For example, the interpretation of the law of limitation bars the remedy of a plaintiff, who prefers his suit late by even a single day beyond the period of limitation. That cannot be a reason to say that Section 3 of the Limitation Act should be construed as directory, and that Section 5 of the Limitation Act should be made applicable even to a suit. If a party is faced W.P.(C) 4573/2012 Page 14 of 39 with a legal consequence which may be adverse to his/ her interest – on account of his/ her acts and/ or omissions, the legal consequence cannot be avoided by the Court by adopting an interpretation of the law which is not supported by the well recognised principles of Statutory Interpretation. Thus, we reject the submission of Ld. Counsels for the petitioner and the Intervener that the word “earlier” used in Rule 24B(1)(i) should be read as “later”. 24. The argument of learned counsel for the intervener that the word “earlier”, if read literally, would render the later part of Rule 24B(1)(i), which reads “or from the date of filing of the application, whichever is earlier” redundant, appears weighty on first blush. This is for the reason that it is difficult to fathom a situation where the date of priority would be later than the date of filing of the application. Thus, invariably, the date of priority would be earlier to the date of filing of the application. If the period of limitation of 48 months for making a request for examination is construed as “earlier” of the two dates, namely the date of priority and the date of filing of the application, invariably, the period of limitation would be 48 months from the date of priority. 25. However, there is counter argument, which is equally – if not more weightily. If the date of priority would invariably be earlier than the date of application – as pointed out by the petitioner and intervener, and if the intention of the rule making authority was to grant 48 months from the latter of the two, the rule making authority need not have disturbed the position as it existed in Section 11B(1) prior to amendment by Act 15 of 2005 with effect from 01.01.2005. As noticed above, Section 11B(1) prior to W.P.(C) 4573/2012 Page 15 of 39 amendment provided that the request for examination should be made within 48 months of the making of the application for grant of patent. The argument of the petitioner and the intervener, therefore, cuts both ways. Since the priority date would invariably be earlier to the date of the application, it would serve no purpose to use the expression “whichever is later” – since the date of the application would invariably be later, and it would have sufficed to simply say that the request for examination should be made within 48 months of the date of the application of the patent. The use of the expression “whichever is earlier”, therefore, cannot be passed off as an obvious typographical or printing error. There is a presumption of due consideration and application of mind by the Rule framing authority, and that presumption is not dislodged in the present case. 26. At this stage, we may notice the decision of the Supreme Court in Afcons Infrastructure Limited & Another Vs. Cherian Varkey Construction Company Private Limited & Others, (2010) 8 SCC 24. In this case, the Supreme Court considered the scope of Section 89 of the Code of Civil Procedure (CPC) and the question: whether the said section empowers the Court to refer the parties to a suit to arbitration, without the consent of both parties. In respect of Section 89 CPC, the Supreme Court observed: “9. If Section 89 is to be read and required to be implemented in its literal sense, it will be a trial Judge's nightmare. It puts the cart before the horse and lays down an impractical, if not impossible, procedure in sub-section (1). It has mixed up the definitions in sub-section (2). In spite of these defects, the object behind Section 89 is laudable and sound. Resort to alternative disputes resolution (for short “ADR”) processes is W.P.(C) 4573/2012 Page 16 of 39 necessary to give speedy and effective relief to the litigants and to reduce the pendency in and burden upon the courts. As ADR processes were not being resorted to with the desired frequency, Parliament thought it fit to introduce Section 89 and Rules 1-A to 1-C in Order 10 in the Code, to ensure that ADR process was resorted to before the commencement of trial in suits. 10. In view of its laudable object, the validity of Section 89, with all its imperfections, was upheld in Salem Advocate Bar Assn. (I) v. Union of India [(2003) 1 SCC 49] [for short Salem Bar (I)] but referred to a committee, as it was hoped that Section 89 could be implemented by ironing the creases. In Salem Advocate Bar Assn. (II) v. Union of India [(2005) 6 SCC 344] [for short Salem Bar (II)], this Court applied the principle of purposive construction in an attempt to make it workable.” 27. After setting out the anomalies that lay in the language of Section 89 CPC, the Supreme Court proceeded to examine, as to how the said Section should be interpreted. It observed: “20. The principles of statutory interpretation are well settled. Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. Departure from the literal rule, by making structural changes or substituting words in a clear statutory provision, under the guise of interpretation will pose a great risk as the changes may not be what the legislature intended or desired. Legislative wisdom cannot be replaced by the Judge's views. As observed by this Court in a somewhat different context: “6. … When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser.” W.P.(C) 4573/2012 Page 17 of 39 (See Shri Mandir Sita Ramji v. Lt. Governor of Delhi [(1975) 4 SCC 298] , SCC p. 301, para 6.) 21. There is however an exception to this general rule. Where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy with other provisions, the courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the statute. When faced with an apparently defective provision in a statute, courts prefer to assume that the draftsman had committed a mistake rather than concluding that the legislature has deliberately introduced an absurd or irrational statutory provision. Departure from the literal rule of plain and straight reading can however be only in exceptional cases, where the anomalies make the literal compliance with a provision impossible, or absurd or so impractical as to defeat the very object of the provision. We may also mention purposive interpretation to avoid absurdity and irrationality is more readily and easily employed in relation to procedural provisions than with reference to substantive provisions. 21.1. Maxwell on Interpretation of Statutes (12th Edn., p. 228), under the caption “modification of the language to meet the intention” in the chapter dealing with “Exceptional Construction” states the position succinctly: “Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, W.P.(C) 4573/2012 Page 18 of 39 or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.” This Court in Tirath Singh v. Bachittar Singh [AIR 1955 SC 830] approved and adopted the said approach. 21.2. In Shamrao V. Parulekar v. District Magistrate, Thana [AIR 1952 SC 324 : 1952 Cri LJ 1503] this Court reiterated the principle from Maxwell: (AIR p. 327, para 12) “12. … if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to require the courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.” 21.3. In Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285] this Court while reiterating that courts will have to follow the rule of literal construction, which enjoins the court to take the words as used by the legislature and to give it the meaning which naturally implies, held that there is an exception to that rule. This Court observed: (SCC p. 295, para 12) “12. … That exception comes into play when application of literal construction of the words in the statute leads to absurdity, inconsistency or W.P.(C) 4573/2012 Page 19 of 39 when it is shown that the legal context in which the words are used or by reading the statute as a whole, it requires a different meaning.” 21.4. In Mangin v. IRC [1971 AC 739 : (1971) 2 WLR 39 : (1971) 1 All ER 179 (PC)] the Privy Council held: (AC p. 746 E) “… the object of the construction of a statute being to ascertain the will of the legislature it may be presumed that neither injustice nor absurdity was intended. If therefore a literal interpretation would produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted.” 21.5. A classic example of correcting an error committed by the draftsman in legislative drafting is the substitution of the words “defendant's witnesses” by this Court for the words “plaintiff's witnesses” occurring in Order 7 Rule 14(4) of the Code, in Salem Bar (II) [(2005) 6 SCC 344] . We extract below the relevant portion of the said decision: (SCC pp. 368-69, para 35) “35. Order 7 relates to the production of documents by the plaintiff whereas Order 8 relates to production of documents by the defendant. Under Order 8 Rule 1-A(4) a document not produced by the defendant can be confronted to the plaintiff's witness during cross-examination. Similarly, the plaintiff can also confront the defendant's witness with a document during cross- examination. By mistake, instead of „defendant's witnesses‟, the words „plaintiff's witnesses‟ have been mentioned in Order 7 Rule 14(4). To avoid any confusion, we direct that till the legislature corrects the mistake, the words „plaintiff's witnesses‟, would be read as „defendant's witnesses‟ in Order 7 Rule 14(4). We, however, hope that the mistake would be expeditiously corrected by the legislature.” W.P.(C) 4573/2012 Page 20 of 39 21.6. Justice G.P. Singh extracts four conditions that should be present to justify departure from the plain words of the statute, in his treatise Principles of Statutory Interpretation (12th Edn., 2010, Lexis Nexis, p. 144) from the decision of the House of Lords in Stock v. Frank Jones (Tipton) Ltd. [(1978) 1 WLR 231 : (1978) 1 All ER 948 (HL)] : (WLR p. 237 F-G) “… a court would only be justified in departing from the plain words of the statute when it is satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly, could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly.”” (emphasis supplied) 28. Thus, the general rule of plain and grammatical interpretation – when the words of a Statute are clear and unambiguous, may be given a go-bye when the words used in the statutory provision are vague and ambiguous, and where the plain and normal meaning of the words or grammatical construction thereof leads to confusion, absurdity or repugnancy with other provisions. In such a situation, the Court may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation by adding, or omitting, or substituting the words in the Statute. However, departure from the literal rule of plain and grammatical reading can be made only in exceptional cases where the anomalies make the literal compliance with a provision impossible, or absurd, or so impractical so as to defeat the very object of the provision. W.P.(C) 4573/2012 Page 21 of 39 29. When viewed in the aforesaid light, we are of the opinion that it cannot be said, that the intention of the legislature, while framing Rule 24B(1)(i), was to grant time to make a request for examination of the patent application, up to the expiry of 48 months from the date of priority, or the date of the application for patent, whichever is later. The presumption is that a conscious decision was taken by the rule making authority to provide 4 years from the earlier of the two dates, i.e. the date of priority, and the date of the patent application. 30. On our examination of the aforesaid rule, we cannot reach to the conclusion that there is a clear and gross anomaly; or that the Parliament/ Rule making Authority, or draftsmen could not have envisaged the fixing of the period of 4 years limitation for making the application for examination from the earlier of the two dates, i.e. the priority date, and the date of the application for patent. Moreover, the language of the Statute is clearly not susceptible of the modification that the petitioner and the intervener would like us to make therein, i.e. to read “whichever is earlier” as “whichever is later”. 31. Since the language used in the Rule is absolutely clear and does not admit of any ambiguity, and adoption of the literal rule of interpretation does not render the Rule unworkable, we must accept the plain meaning of the words used, i.e. “whichever is earlier”. Pertinently, there is no challenge to the validity of Rule 24B(1)(i) in the present petition. 32. However, in view of the above submission of the petitioner and the Intervener, we are inclined to direct the Ministry of Law & Justice to W.P.(C) 4573/2012 Page 22 of 39 examine the aforesaid aspect and, if it finds that the words “whichever is earlier” should read “whichever is later”, necessary amendment in the said Rule should be made without any delay. 33. We now proceed to consider the issue whether the period of limitation– for making the application for examination, prescribed by Rule 24B(1)(i), is mandatory or directory. The purpose of prescribing the limitation period for the exercise of any right, or performance of any obligation is, inter alia, to safeguard the rights of others, who may be interested in, or affected by the launching and initiation of a legal remedy or other step, and to bring about a quietus and settle matters once and for all. If no period of limitation were to be prescribed for the exercise of any right, or performance of any obligation, it would lead to a great amount of uncertainty and settled positions could be unsettled at any point of time to the detriment of others. In N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123, the Supreme Court, inter alia, has observed: “11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that W.P.(C) 4573/2012 Page 23 of 39 a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.” (emphasis supplied) 34. In Kailash Vs. Nanhku, (2005) 4 SCC 480, the Supreme Court was concerned with interpretation of Order 8 Rule 1 CPC as amended by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f 01.07.2002). The said provision reads as follows: “1. Written statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” 35. One of the issues that arose for consideration before the Supreme Court was whether the time limit of 90 days prescribed in the proviso appended to Rule 1 of Order 8 CPC is mandatory, or directory in nature. The Supreme Court held that the time prescribed for filing of written statement was not mandatory, and could be extended by the Court in the facts and circumstances of the case. The reasons given by the Supreme Court for the said interpretation were that: no consequence of such failure was prescribed by the law; there was no provision taking away the power of W.P.(C) 4573/2012 Page 24 of 39 the Court to take the written statement on record though filed beyond the time provided for, and; the object of the provision was to expedite the hearing, and not to scuttle the remedy. The Supreme Court observed: “27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. 28. 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... … x x x x x x x x x x W.P.(C) 4573/2012 Page 25 of 39 30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. x x x x x x x x x x 33. As stated earlier, Order 8 Rule 1 is a provision contained in CPC and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order 8 Rule 1 is that although it appoints a time within which the written statement has to be presented and also restricts the power of the court by employing language couched in a negative way that the extension of time appointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain consequences follow. 34. Justice G.P. Singh notes in his celebrated work Principles of Statutory Interpretation (9th Edn., 2004) while dealing with mandatory and directory provisions: “The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage W.P.(C) 4573/2012 Page 26 of 39 Lord Campbell said: „No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.‟ ” (p. 338) “ „For ascertaining the real intention of the legislature‟, points out Subbarao, J. „the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered‟. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”” (emphasis supplied) 36. We may now take note of a decision of a learned Single Judge of this Court in OKU Tech Private Limited Vs. Sangeet Agarwal & Ors., in CS(OS) No.3390/2015 decided on 11.08.2016: MANU/DE/2036/2016. In this case, the learned Single Judge was concerned with Section 16 read with Schedule to the Commercial Courts, Commercial Division and Commercial W.P.(C) 4573/2012 Page 27 of 39 Appellate Division of High Courts Act, 2015 (Commercial Courts Act), in terms whereof the second proviso to Order V Rule 1, as well as the proviso to order VIII Rule 1 were substituted by the following proviso: “Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record." (emphasis supplied) 37. The Court also noticed the proviso inserted in Order VIII Rule 10 by the said amendment to the CPC in terms of Section 16 of the Commercial Courts Act. The said proviso inserted to Order VIII Rule 10 reads as follows: “Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.” 38. The plaintiff contended that in the light of the aforesaid provisions introduced in the CPC by the Commercial Courts Act, the time for filing of the written-statement under Order VIII Rule 1 could not be extended and that the decision in Kailash (supra) was not attracted. The learned Single Judge accepted this submission of the plaintiff and observed as follows: “7. The above submissions have been considered. The Supreme Court had in Kailash v. Nankhu MANU/SC/0264/2005 : JT 2005 (4) SC 204 interpreted the W.P.(C) 4573/2012 Page 28 of 39 proviso to Order VIII Rule 1 CPC as still giving discretion to the Court to extend the time for filing a written statement. The proviso to Order VIII Rule 1 CPC in its original form was held by the Supreme Court as not specifying any consequences for non-compliance with the time line envisaged thereunder. Therefore the time line under Order VIII Rule 1 CPC was held to be directory. It is observed that the power of the Court to extend beyond the time schedule provided by Order VIII Rule 1 CPC "is not completely taken away." 8. The amendments to the CPC brought out by the Schedule to the Act seek to fill the above gap, as it were, in the CPC. The substituted second proviso to Order V Rule 1 and the substituted proviso to Order VIII Rule 1 place an outer limit of 120 days from the date of service of summons up to which the Court can grant time to file written statement. It categorically states that "on expiry of 120 days from the date of service of summons, the Defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record." This is re-emphasised by inserting a proviso to Order VIII Rule 10 CPC, which after such insertion, reads as under: "10. Procedure when party falls to present written statement called for by Court.--Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order is relating to the suit as it thinks fit