Delhi High Court
Kalpana Patowary vs Super Cassettes Industries Ltd. ... on 8 October, 2007
Author: M Sharma
Bench: M Sharma, S Khanna
JUDGMENT
Mukundakam Sharma, C.J.
1. This appeal is directed against the order and judgment dated 3rd May, 2007 passed by the learned Single Judge rejecting the application filed by the appellant/defendant No. 1 praying for condensation of delay in filing the written statement.
2. The appellant is defendant No. 1 in the suit filed by the respondent No. 1.
3. The contention of the counsel appearing for the appellant is that summons in the suit was not served on the appellant and, therefore, the written statement could not be filed within the stipulated statutory time provided under Order VIII Rule 1 of Code of Civil Procedure. It is submitted before us that since the appellant who is defendant No. 1 in the suit, was not served, therefore, the written statement was not filed and subsequently the same was filed although belatedly, which should have been taken on record by the learned Single Judge hearing the suit.
4. We have considered the aforesaid statement in the light of the records placed before us. There is no dispute to the fact that the appellant herein became aware of the pendency of the suit on 1.11.2004 The said fact is supported by the statement made in the application filed by the appellant herself. There is Power of Attorney signed by the appellant on record. The Power of Attorney was filed on 10.11.2004 However, the appellant defendant No. 1, thereafter, did not put in any appearance nor did she file the written statement till end of 2006. The interim injunction order passed by the learned Single Judge was also came to be confirmed on 25.11.2004 Even at that stage none appeared for the appellant defendant No. 1. The written statement came to be filed after a delay of about two years, i.e., on 9.10.2006 along with an application seeking for condensation of delay in filing the written statement. The learned Single Judge having heard the counsel appearing for the appellant defendant No. 1 on the said application, however, found that the said application could not be accepted and the same was dismissed on the ground that no sufficient cause had been made out.
5. We have heard the learned Counsel appearing for the parties on this application. Counsel appearing for the appellant has drawn our attention to the decision of the Supreme Court in Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors. . Having gone through the said decision and also the decision placed before us by the learned Counsel appearing for the respondent titled as Kailash v. Nanhku and Ors. , we are of the considered opinion that gross negligence and lack of due diligence is apparent on the face of the record. There is no explanation given by the appellant as to why she could not file her written statement in the long two years from January, 2004 till October, 2006. There is laxity and inaction on the face of the record on the part of the appellant. It was necessary for the appellant to get in touch and contact with her advocate for filing written statement. The appellant slept over the matter and deliberately wanted to prolong the same. In the case of Kailash v. Nanhku and Ors. (supra) the Supreme Court has held thus:
...Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever, briefly, by the Court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned by if the time was not extended.
6. So far the decision in the case of Rani Kusum (supra) relied upon by the appellant is concerned, the said decision merely held that the aforesaid provision of Order VIII deals with the power of the Court and that the same does not take away the power of the Court to allow the written statement to be taken on record, when satisfactory explanation is furnished. The object and purpose is to deny unscrupulous defendants from adopting dilatory tactics. There is no dispute with regard to the aforesaid ratio of the decision of the Supreme Court in the case of Rani Kusum (supra) but the fact that the appellant in order to get the extension of time for filing the written statement has to give strong and cogent reasons. However, on going through the record, we find that there was laxity, negligence and lack of due diligence on the part of the appellant defendant No. 1. It was rightly held by the learned Single Judge that the application of the appellant defendant No. 1 for condensation of delay was completely vague and devoid of material particulars and, moreover, that bare reading of the application does not convince the court of any reason to show why the written statement could not be filed in almost two years.
7. In our considered opinion, the application was rightly rejected by the learned Single Judge. We find no merit in the appeal and the same is dismissed accordingly.
