The High Court of Calcutta, while allowing a revision petition filed for quashing the proceedings pending before the Ld. Additional Chief Judicial Magistrate under Sections 420/406/34 of the Indian Penal Code, held that defendant no. 1 was well aware and conversant with the issues involved, including the prescribed period of limitation for filing the written statement, and hence defendant no.1/ Government authority cannot claim that they have a separate period of limitation.
Brief Facts:
The plaintiff/petitioner herein filed a suit against the defendants/opposite parties herein for specific performance of a contract, mandatory injunction, and other reliefs. The petitioner herein also filed an application for an injunction under order XXXIX Rules 1 and 2. By an order dated April 13, 2005, the court below passed an interim order restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property by the petitioner. The defendant filed an application for vacating the interim order of injunction which was allowed in part. The suit of the petitioner was dismissed due to proper summons not being served. The defendant sought to condone delay in filing a written statement which was allowed. Hence, the present petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the learned court below had acted with material irregularity in allowing the defendant prayer for condonation of delay and instead, he ought to have allowed the plaintiff’s prayer for posting the suit for ex-parte hearing. He further contended that the court below acted with material irregularity in condoning the abnormal delay of 14 years without addressing the relevant factor.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the time to file a written statement started running only after the dismissal of the application under Order IX Rule 5, which was dismissed in June 2018. Therefore, the court below rightly condoned the delay upon imposition of the cost and rendered justice to the parties. He further contended that the time to file a written statement can only start to run if summons of the suit has been served on the defendants.
Observations of the court:
The court noted that though the power of the court to extend time has not been taken away in absolute terms, because of the third proviso of order VIII rule 1, the court can extend even beyond the outer limit, subject to the fulfillment of the conditions enshrined therein.
The Court observed that the court below exercised his discretion only on the ground that defendant No. 1 is a Government concern who should get a certain amount of indulgence. Though the said provision under order VIII rule 1 nowhere States that a Government concern is not required to explain while filing a written statement making an abnormal delay, a certain amount of latitude is not impermissible with regard to the State. However, defendant no. 1 was well aware and conversant with the issues involved, including the prescribed period of limitation for filing the written statement, and hence defendant no.1/ Government authority cannot claim that they have a separate period of limitation.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the court below committed a grave error in law in condoning delay for about 15 years after the defendant’s appearance in filing a written statement.
Case Title: Inland Vikash Limited v Board of Trustees for the port of Kolkata & Anr.
Coram: Hon’ble Justice Ajoy Kumar Mukherjee
Case No.: C.O. 1562 of 2021
Advocate for the Petitioner: Mr. Kumar Gupta
Advocate for the Respondent: Mr. Subhanakr Nag
Read Judgment @LatestLaws.com
Picture Source :
