Delhi High Court
Atul Goel vs Raghubir on 14 March, 2008
Author: S N Dhingra
Bench: S N Dhingra
ORDER
Shiv Narayan Dhingra, J.
IA Nos. 8015/2006
1. This application under Section 5 of the Limitation Act read with Section 151 CPC has been made by the defendant for condensation of delay in filing written statement. The applicant/defendant was served on 1st March 2006. The written statement has been filed by the applicant/defendant on 19th July 2006 along with this application. Thus, there is a delay of 108 days in filing the written statement if counted after 30 days of service of summons and delay of 48 days if counted after 90 days of service of summons. The reasons given in the application explaining the delay is that defendant was not well educated but was vigilant enough to seek the advice in the matter from his near and dear ones. After receipt of summons, he was advised that there was an order dated 5th December 2005 passed by the Divisional Commissioner, New Delhi that the suit of the plaintiff was infructuous and he should appear before the Court and apprised the Court this fact. Under this impression, the defendant thought that he has not to do much and did not take steps. The defendant engaged a counsel on 24th April 2006 and instructed him to explain to the Court that the suit was not maintainable. The counsel applied for certified copy of the ordersheet of the instant suit which was delivered to him on 16th May 2006. On 17th May 2006, defendant met the counsel and understood the legal position of filing the written statement and, therefore, the present application was filed.
2. It would be seen from the written statement that the written statement was prepared on 19th May 2006 along with this application and affidavit but it was not filed on 19th May 2006 and it was filed on 19th July. There is no explanation as to why it was not filed on 19th May 2006 and it was filed on 19th July 2006. Practically there is no explanation of not filing written statement within time. The defendant being wise enough to know that the case of the plaintiff was infructous, cannot take the stand that he was not wise for filing written statement. I consider that the explanation given by the defendant is no explanation in the eyes of law.
3. In Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd. and Ors., the Hon'ble Supreme Court has categorically observed that extension of time in filing written statement can be granted for reasons put in writing. The defendant has given no reasons whatsoever for not filing written statement within time even when he was told by his counsel that he has to file the written statement. No cogent reasons are given for not filing the written statement as per time schedule. In R.N. Jadi and Brothers and Ors. v. Subhaschandra, the Hon'ble Supreme Court held as under:
15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the Court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carrying forward the legislative intent of avoiding delays or at least in curtaining the delays in the disposal of suits filed in court. The lament of Lord Denning in Allen v. Sir Alfred MacApline and Sons (1968) 2 QB 229 that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times'
4. I consider that in the present case, the defendant has deliberately not filed the written statement and just wanted to prolong the case. The impression being carried is whatever reason be given, the Court would grant the condensation of delay. I consider that if condensation of delay is allowed for the reasons as are being given in this case, of not filing the written statement, that would be a mockery of provisions of Order 8 Rule 1 of CPC. I, therefore, dismiss this application. The written statement is hereby rejected and be not taken on record.
CS(OS) No. 138/2006
Plaintiff is directed to file list of witnesses and affidavits by way of evidence and lead evidence before the Joint Registrar on 25th April 2008, who shall fix the dates for cross examination of witnesses.
