Sh. Vasdev vs Sh. Rattan Lal & Pinki
2010 Latest Caselaw 4729 Del

*     HIGH COURT OF DELHI: NEW DELHI

             CM (M) No. 761/2010

%     Judgment reserved on: 5th October, 2010

      Judgment delivered on: 7th October, 2010

      Sh. Vasdev
      S/o Sh. Bhagwan Dass,
      R/o F/1/20, IInd Floor
      Guru Nanak Market,
      Lajpat Nagar,
      New Delhi-24                                  ....Petitioner.
                         Through:       Mr. Avtar Singh, Advocate.

                   Versus

      Sh. Rattan Lal @ Pinki
      S/o Sh.Bhagwan Dass
      R/o A-24, Gali No. 8,
      Partap Nagar, Mayur Vihar,
      Phase-I, Delhi - 110092.               ....Respondent
                          Through:      Mr.Sumant De, Advocate

HON'BLE MR. JUSTICE V.B. GUPTA

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

2. To be referred to Reporter or not?                    Yes

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

V.B.Gupta, J.

Present petition under Article 227 of the Constitution of India

has been filed by petitioner for setting aside orders dated 31 st March,

2010 & 12th May, 2010.

2. At the time of arguments, learned counsel for petitioner stated

that he confines his prayer only with regard to "not taking of the

written statement filed by petitioner on record".

3. Respondent (plaintiff in the trial court) has filed suit for specific

performance against the petitioner (defendant in the trial court).

4. Petitioner was duly served with summons on 1st November,

2009 to appear on 16th March, 2010 in the trial court. On 16th March,

2010, petitioner filed his written statement and matter was adjourned

to 31st March, 2010. In the meanwhile, respondent filed an application

under Order 8 Rule 1 & 10 of Code of Civil Procedure (for short as

„Code‟) for passing the decree, as written statement was filed beyond

the prescribed period.

5. Vide impugned order dated 31st March, 2010, trial court held

that since written statement was filed after 105 days from the service

of the petitioner, written statement shall not form part of the record,

being filed beyond the prescribed time.

6. Petitioner, thereafter filed three applications; under Order 7

Rule 11 of the Code, Section 114 of the Code and Section 5 of the

Limitation Act. All these applications were dismissed vide order

dated 12th May, 2010.

7. It is contended by learned counsel for petitioner that though

petitioner has filed the written statement beyond the prescribed period,

but there was no deliberate attempt on the part of the petitioner to

delay the matter. Petitioner is an illiterate person and has no legal

knowledge about the procedure and he relied upon his previous

counsel, who did not give him correct advice. Since written statement

has already been filed, same may be taken on record.

8. In support, learned counsel for petitioner cited following

judgments:-

a) Kailash v. Nankhu & ors., JT 2005 (4) SC 204;

b) M/s R.N.Jadi & Brothers and Ors. vs. Subhashchandra, JT 2007 (9) SC 165 and,

(c)Rani Kusum (Smt.) vs. Kanchan Devi (Smt.) and Ors., 2005 VII AD (SC) 192

9. On the other hand, it is contended by learned counsel for the

respondent that written statement was not filed within the statutory

period. Moreover, it is no ground that counsel did not give correct

advice to the petitioner.

10. It is further contended that the purpose of filing of present

petition is just to delay the proceedings, since petitioner did not even

cross-examine the respondent‟s witnesses. Now matter is listed

before the trial court for final arguments. There is no merit in the

present petition and same should be dismissed.

11. There is no dispute about the principles of law laid down in the

judgments cited by learned counsel for petitioner.

12. In Mohd. Yusuf vs. Faij Mohammad and Ors., 2009 (3) SCC 513, Supreme Court observed;

"It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash v. Nankhu which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nankhu it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient

justification for departing from the time-limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner."

13. In the present case, petitioner was served on 1st November,

2009 for 16th March, 2009. On that very day, petitioner filed his

written statement, though same was beyond the statutory period.

Since, written statement has been filed by the petitioner on the very

first date of hearing itself, grave injustice would be caused to him, if

written statement already filed by him is not taken on record.

14. In view of the fact that matter is listed for final arguments

before the trial court and in view of the loss of time attributable to the

petitioner in prosecuting the suit filed by respondent/plaintiff,

petitioner cannot be permitted to be let off scot free. Therefore, while

setting aside the impugned order and permitting the written statement

filed by petitioner to be taken on record, it is directed that petitioner

shall compensate the respondent for the delay caused on account of

loss of time and avoidable round of litigation by way of the present

petition, by paying respondent costs of Rs.30,000/- (Rupees Thirty

thousand only). The said costs shall be paid to the respondent through

counsel within two weeks from today.

15. It is made clear that in case, costs are not paid within the time

granted, the written statement of petitioner shall not be permitted to be

taken on record.

16. Petition stands disposed of accordingly.

7th October, 2010                                    V.B.GUPTA, J.
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