Suman Jain And Ors. vs Jaimala Jain And Ors.
2007 Latest Caselaw 933 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. The present appeal is directed against order dated 18th September, 2006 passed by the learned Single Judge dismissing the application filed by defendants 7-10, praying for condensation of delay in filing the written statement.

2. In the suit filed by the respondents herein, the appellants namely, defendant No. 7 and defendant No. 10 did not file the written statement within the statutory period prescribed under Order VIII Rule 1 of the Code of Civil Procedure (the Code for short). Consequently, they filed an application seeking condensation of delay in fling the written statement. Objection was taken at that stage by the respondents/plaintiffs that the written statement has not been verified in accordance with law and is not accompanied by any affidavits which are statutorily required to be filed. Affidavits of defendant No. 7 and defendant No. 10 filed along with the written statement merely state that contents of affidavits are true and correct to my knowledge and belief". Since the affidavits and verification were not in terms of the provisions and as required, the learned Single Judge held that the written statement cannot be taken on record as the same was not in accordance with law. Consequently, the application for condensation of delay was rejected. Being aggrieved by the aforesaid order, this appeal is filed on which we have heard the learned Counsel appearing for the parties.

3. Counsel appearing for the appellant has submitted before us that even if it was found by the Court that verifications in the affidavits annexed with the written statement and the written statement was not in form and conformity with the statutory requirement, an opportunity should have been granted to the party to rectify the defect, if there be any.

4. We find force in the aforesaid submission that an opportunity as sought for can be given to the appellants to rectify the defects in the verification and the affidavits. A prayer was made before us in that regard and we find reasonable ground to allow the prayer.

5. Written statement is required to be filed within the statutory period, as provided under Order VIII Rule 1, of the Code. However, power and jurisdiction is vested in Court to condone delay in filing written statement and also to extend the time to file the written statement. The same is now settled law in view of the judgment of the Supreme Court in Smt.Rani Kusum v. Smt Kanchan Devi and Ors. . Besides, verification in the pleadings of the parties and affidavits can be amended. It is also settled law in view of the decision of the Supreme Court in F.A.Spa v. Singora and Ors. . The Supreme Court in the case of Associated Journals Ltd. v. Mysore Paper Mills Ltd. reported in (2006) 132 Company Cases 470 SC while dealing with Rule 21 of the Companies (Court) Rules, 1959 and defect in verification of affidavit in support of winding up petition after referring to an earlier decision in the case of Malhotra Steel Syndicate v. Punjab Chemi-plants Limited reported in (1993) Suppl. 3 SCC 565 has opined that even if there is some defect or irregularity in filing of an affidavit, opportunity to rectify should be given to the party. Rules of procedure cannot be used as a tool to circumvent justice.

6. We, accordingly, allow the appeal to the extent that the appellants be given an opportunity to amend their verification and affidavits, to be in conformity with the statutory requirement. The aforesaid order shall however be subject to the condition that an application shall be filed by the appellants within three weeks from today. Parties shall appear before the learned Single Judge for the aforesaid purpose on 14th May, 2007. In terms of the aforesaid order, the appeal is allowed to the extent indicated above, leaving the parties to bear their own costs.