* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.A. No.4/2015 in CS(OS) No.76/2012
Date of Decision: 07.04.2015
IN THE MATTER OF
RAVINANDANI AND OTHERS ..... Appellants
Through Mr.Rohan Thawani, Advocate
Versus
RAJA PREM SINGH ..... Respondent
Through Mr.Shantanu Malik, Mr.Priyank Sharma &
Mr.Raghav Gautam, Advocates
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
O.A. No.4/2015(by D-1 & D-2 against the order dated 6.12.2014 passed by the Joint Registrar)
1. The present Chamber Appeal has been filed by the defendants No.1 & 2 against the order dated 6.12.2014, passed by the Joint Registrar. Vide order dated 6.12.2014, the Joint Registrar had dismissed the application filed by the defendants, under Order VIII Rule 1 CPC for seeking condonation of delay in filing the written statement(IA No.19223/2013).
2. Before dealing with the submissions of the counsel for the defendants No.1 and 2, it is considered necessary to refer to some relevant dates for deciding the present Appeal. The present suit was instituted on 7.1.2012 and summons were issued to the defendants on O.A. No.4/2015 in CS(OS) 76/2012 Page 1 of 5 17.1.2012. As per the order dated 17.10.2012, defendants No.1 & 2 were deemed to be served with the summons in the suit on the basis of pasting. Counsel for the defendants had entered appearance, before the Joint Registrar, on 12.4.2013. However, the written statement came to be filed by the defendants after over seven months, on 16.11.2013. Accompanying the said written statement was an application filed by the defendants No.1 & 2, under Order VIII Rule 1 CPC for seeking condonation of delay of 227 days, beyond the extended period of 90 days prescribed under the Statute.
3. The explanation offered by the counsel for the defendants No.1 & 2 for filing the belated written statement is that after her marriage, the defendant No.1 is a permanent resident of Canada and her mother, defendant No.2 is a permanent resident of Himachal Pradesh. He states that it is well in the knowledge of the plaintiff, who happens to be the uncle of the defendant No.1 and brother-in-law of the defendant No.2 that the address of the said defendants is not the one furnished in the memo of parties, namely, E-96, 2nd Floor, Greater Kailash Enclave, Part-I, New Delhi. Though it is not denied that the said premises is also one of the residential properties, owned by the defendants No.1 & 2, learned counsel states that the plaintiff is well aware of the fact that the defendants do not reside at the Delhi address and the said premises has remained unoccupied for the last several years.
O.A. No.4/2015 in CS(OS) 76/2012 Page 2 of 5
4. For the Court to satisfy itself about the permanent place of residence of the defendants No.1 & 2, vide order dated 7.1.2015, counsel for the defendants No.1 & 2 was directed to place on record photocopies of the passport/PAN card of the defendant No.2, which order has been complied with. A perusal of the said documents reveals that the defendant No.2's permanent address as reflected in the Aadhar Card, driving licence and ration card is at Shimla/ Dalhousie, but certainly not at Delhi.
5. Learned counsel for the defendants No.1 & 2 states that the plaintiff knew all along that the defendants are not residing at Delhi and due to the wrong addresses furnished by him in the memo of parties, the Joint Registrar had ordered service of the summons on his clients through pasting, a procedure that is not adopted in ordinary course. He goes on to state that he had entered appearance on behalf of the defendants No.1 & 2 on 12.4.2013, but the written statement could not be filed within the prescribed period of 30 days that would have expired on 12.5.2013, or within the extended period of 60 days, that would have expired on 12.6.2013, or for that matter, within the outer limit of 90 days, that would have expired on 12.7.2013 for the reason that after perusing the averments made in the plaint, the defendant No.2 had to make efforts to contact her family members/legal advisors to establish the status of the immovable properties situated in Delhi, of which she did not have any O.A. No.4/2015 in CS(OS) 76/2012 Page 3 of 5 knowledge. It is further submitted that the defendant No.2 took steps to apply for certified copies of the previous rounds of litigations between the parties in various courts situated in Himachal Pradesh which took a much longer time than was expected. As a result, the written statement was finally drafted and filed on 16.11.2013.
6. Though a reply in opposition to the present Chamber Appeal has been filed by the plaintiff, learned counsel fairly states that it would only delay the proceedings further if the appeal is dismissed as the defendants No.1 & 2 are bound to file an appeal which will derail the suit that has been pending at the stage of completion of pleadings for the last three years. He however adds that having regard to the casual manner in which the defendants have been defending the suit and keeping in mind the delay of 227 days beyond the prescribed period of 30 days permitted in law for filing the written statement, they may be mulcted with costs, to compensate the plaintiff for the inordinate delay in the suit proceedings.
7. Having regard to the submission made by the counsel for the plaintiff and after taking into consideration the explanation offered by the counsel for the defendants No. 1 & 2 in the present Chamber Appeal, it is deemed appropriate to allow the same. The aforesaid order is also passed in view of the fact that the defendant No.3 had remained unrepresented despite service have been effected on her, on 9.10.2013 and the name of the defendant No.4 has been deleted from the array of O.A. No.4/2015 in CS(OS) 76/2012 Page 4 of 5 the defendants, by a separate order passed today in IA No.23051/2014. The effect of disallowing the Chamber Appeal would have meant that the plaintiff's suit for seeking partition of immovable properties, owned by the predecessor-in-interest of the parties, Rajmata Devendra Kumari, would have gone uncontested on merits, thus resulting in grave injustice to the defendants No.1 & 2.
8. Accordingly, the present Chamber Appeal is allowed, subject to payment of costs of `30,000/- by the defendants No.1 & 2 to the plaintiff through counsel, within four weeks from today. The Chamber Appeal is disposed of.
HIMA KOHLI, J APRIL 07, 2015 mk O.A. No.4/2015 in CS(OS) 76/2012 Page 5 of 5