Delhi Development Authority vs New Friends Co-Operative House ...
1985 Latest Caselaw 124 Del

JUDGMENT

Sultan Singh, J.

(1) This revision under Section 115 of the Code of Civil Procedure (for short 'the Code') is directed against the judgment and order dated 12th April, 1983 of the Additional District Judge, Delhi striking out the defense of the petitioner.

(2) These are the facts. On 25th May, 1982 New Friends Co-op. House Building Society Ltd. respondent No. 1 filed a suit for recovery of Rs. 93,178,90 against Municipal Corporation of Delhi (defendant No. 1) and the petitioner/defendant No. 2 for refund of funds deposited for providing roads, services, drains in the New Friends Colony. Summons for settlement of issues were issued for 29th July, 1982 on which date again fresh summons were ordered to be issued for 9th September, 1982. Counsel for defendant No. 1 appeared. There was a report that Delhi Development Authority, defendant No. 2 had refused to accept summons. Ex parte proceedings were ordered against the petitioner/defendant No. 2 on 9th September, 1982. Written statement was ordered to be filed on 13th October, 1982. The suit was again adjourned for filing written statement by M.C.D. to 23rd November, 1982.

(3) The petitioner-defendant No. 2 made an application under Order 9 rule 7 of the Code on 23rd November, 1982 and the case was adjourned for its reply to 14th January, 1983, when the order dated 9th September, 1982 proceeding ex-parte against the petitioner-defendant No. 2 was set aside on payment of Rs. 100.00 as costs. The suit was adjourned for filing written statement to 24th February, 1983 on which date costs were paid and it was submitted that written statement could not be prepared as copy of the plaint had not been supplied. Copy of the plaint was supplied and the suit was adjourned to 12th April, 1983 for filing written statement.

(4) On 18th April, 1983 the petitioner-defendant No. 2 sought adjournment as the draft written statement was ready but it could not be finalised. The trial court by the impugned order dated 12th April, 1983 declined to grant time and struck out the defense of the petitioner. No body appeared for defendant No. 1, the trial court therefore struck out also the defense of the Municipal Corporation of Delhi (defendant No. 1) who had also not filed the written statement. The adjournment for filing written statement was refused on the ground that no cause much less sufficient cause under Order 17 of the Code was shown.

(5) Learned counsel submits that copy of the plaint was supplied to the petitioner on 24th February, 1983 and case was adjourned for filing the written statement to 12th April, 1983 when first request was made for adjournment to file written statement, that petitioner being a statutory authority, required time for co-ordination and preparing pleadings and the trial court refused adjournment under Order 17 of the Code which provision was not applicable for grant of time to file written statement, there was no ground for striking off defense and thus the court acted illegally and/or with material irregularity in the exercise of its jurisdiction. He further submits that the discretion exercised by the court refusing to grant time to file written statement was arbitrary and against the principles of judicial discretion.

(6) Learned counsel for the plaintiff-respondent submits that the revision is not maintainable ; the petitioner is entitled to participate in the trial of the suit ; the impugned order does not prejudice the defendant- petitioner and the same can be challenged under Section 105 of the Code at the time of appeal against the final decree in suit.

(7) Order 8 Rule 1(1) of the Code reads as under : "81(1)The defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defense."

This sub-rule requires the defendant to file written statement of his defense on or before the first hearing or within such time as the court may permit The petitioner-defendant was required to file the written statement on 12th April, 1983 but it could not be filed and therefore request was made for further time. The court has a discretion to grant further time for filing written statement under Order 8 Rule 1(1) read with Section 148 of the Code. The trial court refused to grant time presumably on the ground that the suit had been pending since May, 1982, the petitioner had been proceeded ex-parte on 9th September, 1982 which order was set aside on payment of Rs. 100.00 as costs on 14th January, 1983. These are however not the grounds for refusing to grant time to file written statement or striking out defense. The petitioner- defendant had requested for adjournment on the ground that it could not be prepared as it was a statutory body which takes time for coordination and preparing pleadings in its offices. The trial court instead of acting under Section 148 or Order 8 Rule 1(1) of the Code illegally acted under Order 17 Rule 1 of the Code and refused time to file written statement. Order 17 Rule 1 of the Code provide that the court may for sufficient cause at any stage of the suit grant time and adjourn hearing of the suit. Order 17 Rule 1 of the Code is a general provision relating to adjournments while Order 8 Rule 1 of the Code is a specific provision providing for the grant of time for filing written statement. It is well known that in the presence of a special provision relating to a matter the general provision does not apply. The present case was not a case for showing sufficient cause seeking adjournment for filing written statement within the meaning of Order 17 Rule 1 of the Code. Though the suit was filed in May, 1982 but it was only first request for adjournment which was made on 24th February, 1983 on which date the copy of the plaint was supplied to the petitioner. Even if the petitioner was negligent in not filing the written statement on 12th April, 1983 the trial court ought not to have struck out its defense. Under Section 148 of the Code the court has wide discretion from time to time to enlarge time granted by it for doing any act. Further under Order 8 Rule 1(1) of the Code the court can grant further time to file- written statement. There was no occasion to refer to Order 17 of the Code for granting time to file written statement, 12th April, 1983 was fixed for filing written statement. It was not a date for the hearing of the suit. Hearing of a suit commences when the court applies its mind to the pleadings of the parties, frames issues or records evidence. In the absence of written statement issues were not to be framed. The court, in my opinion, therefore acted illegally in the exercise of its jurisdiction by applying Order 17 Rule 1 of the Code in striking off defense and refusing to grant time to file written statement and thus affecting the ultimate decision.

(8) In Sada Ram v. Delhi Development Authority, it has been observed that where no period of limitation is prescribed by law, the descretion of the court is wide enough to allow a defendant to file written statement subject to adjustment of equities by payment of costs etc. even if the defendant is negligent in not filing the written statement in time. It has been further observed that Order 8 Rule 10 or Section 151 of the Code does not refer to the necessity of any good cause being shown by the defendant before he is allowed to file the written statement late.

(9) Admittedly the copy of the plaint was supplied to the petitioner on 24th February, 1983 and it was required to file written statement on 12th April, 1983. The trial court had power to extend the time for filing the written statement under Section 148 read with Order 8 Rule 1 of the Code. Order 8 Rule 10 and Order 17 Rule 1 of the Code are as under :

"ORDER8 Rule 10-Procedure when party fails 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 in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up."

"ORDER17 Rule 1-Court may grant time and adjourn hearing-The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit."

These provisions do not apply to the facts of the present case. The trial court illegally acted under Order 17 Rule 1 of the Code in refusing to grant time to file written statement. Further I am of the opinion that the provisions of Order 8 Rule 10 of the Code are directory and not mandatoiy. Rule 10 of Order 8 of the Code provides that if the written statement is not filed the court is authorised to pass such order as it thinks fit. The trial court ought to have granted time to file written statement. But by referring to Order 17 of the Code it refused to grant time. The court acted illegally in the exercise of its jurisdiction and thus the final order striking off defense is illegal. The impugned order, if not set aside under Section 115 of the Code would cause irreparable injury to the Delhi Development Authority, petitioner a statutory body.

(10) The petitioner-defendant is no doubt entitled to participate on future dates of hearing of the suit but the question is whether it would be in a position to make its submission without filing the written statement. If the written statement is not filed the defendant is bound to be pre-judiced. The petitioner-defendant further can challenge the impugned order in an appeal against the final decree in the suit but that would be too late. If the trial court has acted illegally or with material irregularity in the exercise of its jurisdiction this court is called upon to exercise jurisdiction and set aside such an order. It is held that the revision is maintainable and the remedy of the petitioner to challenge the impugned older at the time of filing appeal against the final decree is not an adequate remedy. I am, therefore, of the opinion that the trial court failed to exercise judicial discretion in refusing to adjourn the case on 12th April, 1983 for filing written statement audit acted illegally and with material irregularity in the exercise of its jurisdiction. The impugned order is liable to be set aside.

(11) The suit was filed in May, 1982, the petitioner was proceeded ex-parte on 9th September, 1982 which order was set aside on payment of Rs. 100.00 as costs on 14th January, 1983. The negligence of the petitioner has caused delay in the trial of the suit. The impugned order therefore should not be set aside without payment of costs. In the facts and circumstances of the present case, I assess that the petitioner should pay Rs. 750.00 as costs to the plaintiff as a condition for filing the written statement. Parties are directed to appear before the trial court on 30th April, 1985 when the petitioner defendant may file written statement on payment ofRs.750.00 as costs to the counsel for the plaintiff. No order as to costs in this revision.