Dr. Ashok K. Mittal vs Shri G.D. Pathak
2005 Latest Caselaw 1545 Del

ORDER

J.P. Singh, J.

1. This petition under Article 227 of the Constitution of India is directed against the order dated 12.5.2004 disposing of two applications - i) under order VIII rule 1 read with rule 10 and Section 151 of the Code of Civil Procedure filed on behalf of the plaintiff and ii) application under Section 21 read with Section 151 of the Code of Civil Procedure, as also an application under Section 5 & 12 of the Limitation Act filed on behalf of the defendant.. The application under order VIII rule 1 of the Code of Civil Procedure has been dismissed whereas the application under Section 5 & 12 of the Limitation Act filed on behalf of the defendant has been allowed and the defendant's written statement has been taken on record. However, application of the defendant under Section 21 read with Section 151 of the Code of Civil Procedure has been dismissed. Aggrieved the plaintiff has filed the present petition.

2. I have heard Mr. V. Shekhar Advocate learned counsel for the petitioner and Mr Atul Sharma Advocate learned counsel for the respondent on the point of admission and have gone through the copies of the documents placed on the file.

3. Briefly the facts are that the petitioner-plaintiff-tenant (hereinafter referred to as the plaintiff) is a tenant under the defendant - respondent-landlord (hereinafter referred to as the defendant). Their relations got strained whereupon the plaintiff filed a suit for perpetual injunction (bearing No. 122/2003) against the defendant to prevent him from evicting the plaintiff without due process of law also one more suit (bearing No. 123/2003). The plaintiff then filed a third suit for recovery of Rs. 15 lacs, declaration and perpetual injunction against the defendant.

4. It is alleged that summons of the suit and the notice of the application for interim stay were served upon the defendant in the first week of October 2003 and as per provisions of order VIII rule 1 of the Code of Civil Procedure the defendant was required to file the written statement within 30 days of the service of summons but the same was not filed and in any case the defendant was bound to file the written statement within 90 days which ended in January 2004.

5. The plaintiff then filed an application under order VIII rule 1 & 10 of the Code of Civil Procedure on 13.1.2004 praying that a judgment be passed. Notice of this application was issued to the defendant. The defendant filed reply to the application as also the written statement in the court on 1.3.2004 though no extension of time was granted to the defendant by the Court. Along with the said written statement the defendant also filed an application under Section 5 & 12 of the Limitation Act read with order VIII rule 1 and Section 151 of the Code of Civil Procedure seeking condensation of delay in filing the written statement.

6. Vide impugned order the application of the plaintiff under order VIII rule 1 & 10 of the Code of Civil Procedure was dismissed and as stated above, the application of the defendant was allowed and the written statement was taken on record.

7. A perusal of the impugned order shows that the learned Addl. District Judge has referred to the reply filed by the defendant to the application under order VIII rule 1 read with rule 10 of the Code of Civil Procedure observing that the defendant had filed an application under Section 21 of the Code of Civil Procedure for rejection of the plaint. The plaintiff did not file any reply to the said application on one or the other pretext because of which the matter was delayed. It appears that the defendant had raised objections to the jurisdiction of the Court as he had referred to the provisions of Delhi Rent Control Act which according to the defendant were attracted in the facts and circumstances of the case regarding the claim of the plaintiff against the defendant. The plaintiff did not file any reply to the said application and this as observed by the learned Addl. District Judge delayed the matter. The learned Addl. District Judge has referred to the other provisions of law and has based the impugned order on the precedent cited therein. I may mention here that the plaintiff has already filed replication to the written statement though without prejudice to his rights. The intent and purpose of the order VIII Rule I is to curb the mischief of unscrupulous defendants adopting dilatory tactics and delaying disposal of the cases. The object is to expedite the hearing but not rush hurriedly to dispose of the matter (Smt. Ravi Kumar v. Kanchan Devi, 2005 (6) scale 545. In the present case, the landlord is a 76 years old person, his wife is said to be ailing and bed ridden and the plaintiff-tenant has filed three suits against him. There can be extra ordinary and exceptional circumstances which have to be taken note of by the Court and accordingly the courts exercise their judicial discretion depending upon the facts and circumstances of a given case. Since admittedly there was delay in filing written statement, in my view the plaintiff should be compensated.

8. Considering the totality of the facts and circumstances of this case, in my view the impugned order is not perverse which may lead to manifest injustice so as to invite interference under article 227 of the Constitution of India. The petition is, therefore, dismissed, but as observed above the defendant will pay Rs. 5000/- as costs to the plaintiff.