Delhi High Court
Shri Sarabjit Singh Anand And Ors. vs Shri Manjit Singh Anand And Ors. on 9 November, 2010
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 09.11.2010
+ CS(OS) No. 1593/2006
SHRI SARABJIT SINGH ANAND AND ORS. ..... Plaintiff
- versus -
SHRI MANJIT SINGH ANAND AND ORS. ..... Defendant
Advocates who appeared in this case:
For the Plaintiff : Plaintiff No.1 in person.
For the Defendant : Mr Dinesh Garg and Ms Rachna
Agrawal, Advs. for D-1.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported
in Digest?
V.K. JAIN, J (Oral)
IA No. 9588/2006
Vide this application, the plaintiffs had sought
disposal of IA No. 9088/2006, which has already been
disposed of on 17th February 2010. This application,
CS(OS)NO.1593/2006 Page 1 of 7
therefore, has become infructuous and is dismissed as
such.
IA No. 7527/2007 & IA No. 8664/2010
Heard.
1. Admittedly, the defendants did not file written
statement within the period stipulated under Order 8 Rule 1
of CPC. They instead filed an application under Order 7
Rule 11 of CPC being IA No. 9987/2006. No application for
extension of time to file written statement was filed by the
defendants. The aforesaid application was dismissed vide
order dated 11th January 2008, with cost of `20,000/-. The
Court, vide another order passed on the same day,
permitted the defendants to file written statement within 30
days. Admittedly, written statement has been filed within
30 days computed from 11th January 2008 in the order
dated 11th January 2008, permitting the defendants to file
written statement within 30 days, there is no reference to IA
No. 7527/2007, which had been filed much prior to
dismissal of IA No. 9987/2006 and in which the plaintiffs
had sought preliminary decree of partition on the ground
that written statement had not been filed within the outer
limit fixed in this regard under Order 8 of CPC.
CS(OS)NO.1593/2006 Page 2 of 7
2. IA No. 8664/2010 has been filed by the plaintiffs
on 6th January 2010 seeking amendment of the proceedings
of the Court dated 11th January 2008 whereby the
defendants were permitted to file written statement within
30 days. The grievance of the plaintiffs, as submitted by
plaintiff No.1 Mr Sarabjit Singh Anand, is that there is no
provision in the Code of Civil Procedure for extension of time
beyond 90 days and there was no reference to his pending
IA No. 7527/2007 in the order dated 11th January 2010.
3. It is not permissible for me, sitting as a
Predecessor, to amend the order dated 11th January 2008,
on an application filed after more than two years of the
passing of the order. If the plaintiffs were aggrieved on
account of the Court granting time for filing written
statement to the defendants despite there being no
provision in this regard in the Code of Civil Procedure, the
appropriate remedy for them was to challenge that order in
the appropriate proceedings or to seek a review of that
order.
4. The plaintiff No.1, who is present in Court and has
argued in person, has placed reliance upon Section 153 of
the Code of Civil Procedure in support of his contention that
CS(OS)NO.1593/2006 Page 3 of 7
it is very much permissible for this Court to amend the
order dated 11th January 2008. Section 153 of the Code of
Civil Procedure, empowers the Court to amend any defect or
error in any proceeding and it further provides that all
amendments shall be made for the purpose of determining
the real question or issue raised by or depending upon such
proceedings. This provision deals with defects in the suit or
other proceedings and is not intended to apply to a case
where an order passed by the Court is assailed on the
ground that it was passed in ignorance of or without taking
note of a statutory provision and, therefore, the Court could
not have passed such an order. The aforesaid provision, in
my view, cannot be invoked to challenge an order passed by
the Court either on the ground that the Court lacked
competence to pass the order or on the ground that there
was no provision in the Code of Civil Procedure for passing
such an order. This Section is intended to deal with the
defects or errors which need to be removed by an
amendment such as the cases where the suit/appeal is filed
against a dead person and the defect is sought to be
remedied by making appropriate amendment in the plaint,
CS(OS)NO.1593/2006 Page 4 of 7
or a new cause of action which has arisen after filing of the
suit, is sought to be added.
5. It would be worthwhile to note here that this is not
an application seeking review of the order dated 11 th
January 2008. If the plaintiffs want a review of that order,
the appropriate remedy is to file an application for review on
that order and in terms of the High Court Rules, the Review
Petition would be listed before the same Hon'ble Judge who
had passed the order dated 11 th January 2008.
6. Plaintiff No.1 has placed reliance upon
Mohammed Yusuf vs Faij Mohammad and Others (2009)
3 SCC 513 where after referring to its earlier decisions in
Kailash vs Nanhku (2005) 4 SCC 480, M. Srinivasa Prasad
vs Comptroller & Auditor General of India (2007) 10 SCC
246 and R.N. Jadi & Bros. vs Subhash Chandra (2007) 6
SCC 420, the Supreme Court felt that in the case before it,
the High Court should not have allowed the writ petition
filed by the respondent. In that case, the defendants did
not file written statement within the time stipulated in this
regard in the Code of Civil Procedure. The
plaintiff/appellant then filed an application before the trial
Court for pronouncing judgment in terms of Order 8 Rule
10 of the Code of Civil Procedure. The defendant also filed
an application for filing written statement without seeking
condonation of delay in filing the written statement. The
application filed by the defendant was dismissed by the trial
Court. A Revision Petition filed against that order was
dismissed by the learned District Judge. The
defendant/respondent, thereafter, filed a Revision Petition,
which was allowed by the High Court. The High Court while
allowing the writ petition had directed that the written
statement shall be kept on record and the
defendant/petitioner shall be permitted to contest the same
on merits subject to payment of cost of `10,000/-. It was
also noticed by the Supreme Court that there was no finding
by the High Court that there had been a substantial failure
of justice or that the order passed by the trial Court as also
by the Revisional Court contained error apparent on the
face of the record warranting interference by a superior
Court in exercise of its supervisory jurisdiction under Article
227 of the Constitution. In my view, this judgment can be
of no help to the plaintiffs for the simple reason that this
Court is not sitting in any appellate proceedings and cannot
go beyond the order passed by my learned Predecessor on
the merits of the order.
7. For the reasons given in the preceding paragraphs,
I find no merit in these applications and the same are
hereby dismissed.
CS(OS) 1593/2006
8. As requested, to come up for framing of issues on
22nd December 2010.
(V.K. JAIN)
JUDGE
NOVEMBER 09, 2010
Ag
