Gautam Bhowmick vs Prem Chand
2010 Latest Caselaw 402 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of Reserve: January 15, 2010
                                                     Date of Order: January 25, 2010
+ CM(M) 1454 of 2009
%                                                                25.01.2010
     Gautam Bhowmick                                     ...Petitioner
     Through: Mr. S.K. Bhaduri and Ms. Kiran Dharam, Advocates

         Versus

         Prem Chand                                              ...Respondent
         Through: Mr. Manjit Singh Chauhan, Advocate

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment? Yes.

2.       To be referred to the reporter or not?                                       Yes.

3.       Whether judgment should be reported in Digest?                               Yes.


         JUDGMENT

1. By this petition under Article 227 of the Constitution of India, the petitioner

has assailed the order dated 20th April, 2009 passed by learned Rent Controller

dismissing an application of the petitioner under Order 8 Rule 1 read with Section

151 of CPC.

2. Brief facts relevant for the purpose of deciding this petition are that the

respondent filed an eviction petition against the petitioner herein under Section

14(1)(a) and (d) of Delhi Rent Control Act (DRC). The notice of the said eviction

petition was served upon respondent on 30th July, 2008. In terms of Order 8 of CPC,

respondent was supposed to file written statement within 30 days but no written

statement was filed within the period of 30 days. No application was made for

extension of time in filing written statement after 30 days. The matter was listed

before the trial court on 13th October 2008. On that day, instead of filing written

statement an adjournment was sought by the petitioner herein on the ground that

his counsel was out of station. The trial court observed that two and a half months

had passed since service of summons on the petitioner and no written statement had

been filed and no application had been made for extension of time. He closed the

CM(M) 1454 of 2009 Gautam Bhowmic v Prem Chand Page 1 Of 5 right of present petitioner to file the written statement. After this order was passed,

the petitioner made an application under Order 8 Rule 1 read with Section 151 CPC

seeking leave to file the written statement and in that application the petitioner took

the ground that he could not file written statement within the statutory period since

he had to frequently visit Kolkata in connection with other cases being faced by him

and because of this he was facing financial crisis. The learned trial court considered

the application and observed that since the trial court had already closed the right of

the petitioner herein to file the written statement, the application for condoning

delay, giving reasons for not filing the written statement and seeking leave to file the

written statement would not be maintainable since the Court had proceeded under

Order 8 Rule 10 CPC and dismissed the application.

3. It is submitted by counsel for the petitioner that the trial court was wrong in

saying that it could not entertain an application under Order 8 Rule 1 CPC after it had

already acted under Order 8 Rule 10 CPC and closed the right of the present

petitioner to file written statement. The counsel for the petitioner relied upon Arya

Orphanage v Bimla Bedi 118(2005) DLT 152 and Smt. Rani Kusum v Smt. Kanchan

Devi and others AIR 2005 SC 3304.

4. In Arya Orphanage (supra) case, counsel for the petitioner placed reliance on

paragraph 30 of the judgment. This paragraph of the judgment is not the ratio of the

judgment. A reading of this judgment would show that this Court had observed that

in many cases where defendant has no substantial defence, either filing of written

statement is evaded or no written statement is filed and all kinds of applications

popup to delay the trial. The Court also observed that defendant in that case had

failed to show good cause for enlargement of time in filing the written statement.

5. In Kailash v. Nankhu, 2005 IiR SCW 2346, the Supreme Court had considered

the provisions of Order 8 Rule 1CPC and observed as under:-

"... (iv) the purpose of providing the time schedule for

CM(M) 1454 of 2009 Gautam Bhowmic v Prem Chand Page 2 Of 5 filing the written statement under Order VIII, Rule 1, CPC is to expedite and not to scuttle the hearing. The provisions spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1, order VIII, CPC is couched in negative form, it does not specify any penal consequences following from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by order VIII, Rule 1 CPC is not completely taken away.

(v) Though Order VIII, Rule 1, CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases, which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provisions is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking more so when the period of 90 days has expired. 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 if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."

(emphasis added)

6. The scheme of Order 8 CPC would show that a person is supposed to file

written statement within 30 days of receipt of the summons. If he fails to file the

written statement within a period of 30 days, he is to be allowed to file the same on

CM(M) 1454 of 2009 Gautam Bhowmic v Prem Chand Page 3 Of 5 such other day as the Court may direct for reasons to be recorded in writing. The

extension of 60 days may be granted by the Court. Thus, written statement has to be

filed within 90 days from the date of service of summons. As observed by the

Supreme Court, the purpose behind amendment made by Parliament was to expedite

the trial.

7. It had become a tendency of the defendants to prolong the trial of the case

and to drag the proceedings as long as possible, since prolonging of the proceedings

itself results in defeating justice. In order to curb this tendency, amendments were

made in Civil Procedure Code and the Supreme Court after considering the legal

position took a view that while the written statement should be filed within 30 days.

Extension of time for filing written statement beyond 30 days but within 90 days

should be given if reasonable grounds are shown by defendant and the Court is

satisfied with those grounds. Beyond 90 days, the Court is not powerless in

extending the time for filing written statement, but this discretion must be exercised

only in exceptional cases so that the procedure does not defeat the substantive

justice.

8. In the present case, after receipt of summons no effort was made to file the

written statement within 30 days. After 30 days, no application was filed for

extension of time for filing written statement and on 13 th October 2008 i.e. after 75

days of receipt of summons only a request for adjournment was made by the

defendant on the ground that counsel was out of station. Since there was no request

for extension of time for filing written statement or no application was made in this

regard and no reasons were assigned as to why written statement could not be filed

within 30 days, the trial court exercised its powers under Order 8 Rule 10 CPC and

closed the right to file the written statement. An application for extension of time was

made thereafter. The reasons given in the application for extension of time are also

superfluous reasons viz. there were many cases pending against the petitioner in

different courts.

CM(M) 1454 of 2009 Gautam Bhowmic v Prem Chand Page 4 Of 5

9. Because of defendant facing many cases it can safely be presumed that he

was very well aware of the law and still did not file written statement deliberately.

Financial crunch the other ground taken is not an exceptional ground. At no point of

time, the defendant had stated that he was not in a position to engage counsel or

was not in a position to bear the burden of litigation and he had also not sought legal

aid. Such grounds were very vague and general grounds given to the Court. Thus,

even if the court had come to a conclusion that the application was entertainable, the

Court could not have extended the time since no exceptional ground was made out

by the petitioner before the trial court.

10. Another ground for dismissing this petition is that the order to the trial court

was passed on 20th April, 2009 and the present petition was made on 3 rd December,

2009 i.e. after about 8 months. At the time of admission of this petition, it was

stated that the earlier counsel left Delhi and therefore delay occurred in filing the

petition. I consider that throwing of burden of negligence on the counsel for not

taking action in time and taking no responsibility in contesting the matter does not

show the defendant as diligent, and this petition cannot be entertained by the Court

on this ground alone. It has now become a normal practice that the parties change

their counsels and throw burden of even filing false petitions on the previous

counsels and allege having been misguided by the previous counsel.

11. In view of my foregoing discussion, I dismiss this petition being meritless and

also on the ground of delay and laches. No orders as to costs.

January 25, 2010                                    SHIV NARAYAN DHINGRA J.
rd




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