High Court of Delhi was dealing with petition challenging the impugned order dated 4th March, 2021 passed by the trial court vide which the written statement of the Defendant has been struck off the record by the trial court.
Brief Facts:
The suit was filed by the Plaintiff seeking recovery with pendent lite and future interest till the date of realisation along with cost of the suit. Initially, summons were issued to the defendant in the suit but since the process fee was not filed by the Plaintiff, one more opportunity was granted to the Plaintiff by the trial court. However, the defendant did not appear on the next date of hearing and last opportunity was granted by the court to the Defendant. An application for appearance was filed by the Defendant presuming the suit to be under Order XXXVII CPC. It was clarified by the court that the suit was an ordinary suit for recovery and last opportunity was granted to the Defendant to appear and file the written statement. On 21st November, 2019 written statement was filed by the Defendant. Thereafter, the matter was listed before the trial Court. However, no objection was taken by the Plaintiff in respect to the belated filing of the written statement by the Defendant. The objection was taken for the first time by the Plaintiff on 17th September, 2020 that the written statement was filed belatedly when the matter was fixed for the framing of issues. On the basis of this objection, an application was filed by the Plaintiff to take the written statement off the record as the same was not filed within the prescribed time envisaged in Order VIII Rule 1.
Defendant’s Contention:
Learned Counsel for the defendant submitted that the initial misunderstanding was under the impression that the suit was under Order XXXVII and summons for judgment had to be filed by the Plaintiff. As soon as the said impression was corrected by the trial court on 3rd August 2019 and the opportunity was given to file the written statement, the same was filed promptly. He submitted that no objection was taken initially by the Plaintiff. It is only almost after a year the objection related to belated filing of the written statement have been raised by the Plaintiff. He further submitted that there was no intention on the part of the Defendant to delay the proceeding before the trial court and the delay in filing written statement deserves to be condoned.
Plaintiff’s Contention:
The counsel for the plaintiff submitted that summons were served on the defendant 18th May, 2019 and the statutory time for filing the written statement expired by the time written statement was filed by the Defendant. There was no application for condonation of delay accompanying the written statement filed beyond the statutorily permissible period under CPC. It was submitted that no explanation was given as to why the delay ought to be condoned. Accordingly, the correct view has been taken by the trial Court striking the written statement filed by the Defendant off the record of the court.
HC’s Observations:
After hearing both the sides Court stated that there was a genuine misunderstanding on the part of the Defendant that the suit was in fact under Order XXXVII. Thereafter, appearance of the ld. Counsel for the Defendant was wrongly recorded which corrected and on 21st November, 2019 the written statement was finally filed. Court observed that if the time is computed from the date of service of summons upon the Defendant the written statement has been filed within a period of six months.
Court stated that though there is no doubt that the said period is beyond the statutory period provided in the CPC, but the Hon’ble Supreme Court in Kailash vs. Nankhu permits that in exceptional situations, the delay in filing the written statement beyond the statutorily permissible limit can be condoned. Court observed that the misunderstanding as to the nature of the suit and the chronology of events in the suit shows that the delay is sufficiently explained. Also, there would be grave injustice caused to the Defendant if the Written Statement is not taken on record. The Defendant was honestly under a mistaken impression that the suit was under Order XXXVII. Furthermore, even after the filing of the written statement, no objection was taken for almost 10 months and the suit had actually proceeded further.
HC Held:
After evaluating submissions made by both the parties the Court held that “In the overall facts and circumstances and considering the fact that the present suit is not a commercial suit but is governed by the CPC where the period specified in Order VIII Rule 1 has been clearly held to be directory and not mandatory, the written statement is directed to be taken on record, subject to payment of Rs.7,500/- as costs to the Plaintiff. The costs shall be tendered on the next date before the trial court.”
HC allowed the petition.
Bench: Justice Prathiba M. Singh
Case Title: Annex Die Casting v. Samir Kumar Pal
Case Details: C.R.P. 100/2021
Read Judgment @Latestlaws.com
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