M/S. Saru Smelting Private Ltd. vs Smt. Sharda Gupta
2012 Latest Caselaw 5042 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                        CM(M) 1408/2011

                                          Date of Decision: 27.08.2012

M/S. SARU SMELTING PRIVATE LTD.          ...... Petitioner
                  Through: Mr.Manu Nayar, Advocate.

                                 Versus

SMT. SHARDA GUPTA                                 ...... Respondent
                 Through:             Mr.T.C.Yogi, Advocate.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution assails the order dated 22.09.2011 of Civil Judge in CS No. 98/10/01.

2. There are two suits which are pending before the Civil Judge. The suit No. 97/10/99 was filed by the respondent for possession and recovery of damages against the petitioner and suit being 98/10/01 was filed by the petitioner against the respondent for specific performance. Both these suits were consolidated on 8.12.2003 and vide order dated 22.01.2004, common issues were framed and the cases were tried jointly. Thereafter, vide order dated 9.11.2010 of the Civil Judge, the cases were de-consolidated. The petitioner challenged the same vide CM (M) 1/2011 in this court. This court, taking note of the fact that the common issues have already been framed and the evidence has already

been led in both the cases and the cases are ripe for final arguments, directed to dispose of the suits as per the evidence already recorded based on the common issues framed in the suits. At the stage of final arguments, the court noticed that the formal written statement was not on record in the case being suit No. 98/10/01 filed by the petitioner. An application had been filed under Order 8 Rule 10 CPC by the petitioner, who was the plaintiff in the said suit, to struck off the defence of the respondent. The said application was dismissed vide impugned order by Civil Judge. The Civil Judge noted that since both the cases have been consolidated and common issues have been framed and the order was also passed by this court for disposal of both the cases as per the evidence already on record, the plaint that was filed by the respondent in his case being 97/10/99 was to be treated as a written statement to the instant suit 98/10/01. This order is under challenge in the instant petition.

3. The impugned order is assailed by the learned counsel for the petitioner mainly on the ground that since the written statement had not been filed by the respondent in his (petitioner) suit for specific performance being 98/10/01, her (respondent) defence was liable to be struck off and the Civil Judge erred in treating the plaint in the respondent's suit No. 97/10/99 as a written statement to the petitioner's suit. It was his submission that the petitioner was prejudiced in not controverting the pleas that could be taken by the respondent in the written statement.

4. As is noted above, both the cases have been tried together from the beginning. Not only that the common issues were framed, but even the common evidence was led by both the parties. Though, the initial submission of the counsel appearing for the respondent was that the written statement was filed, but the same was not on record. The learned counsel appearing for the respondent states that this submission was made based on the copy of the written statement, that was found lying in his office file, which was entrusted to him after the change of the previous counsel. The Trial Court has also noted that the issues were framed based on the pleadings of the parties, assuming there to be the written statement filed by the respondent. However, it was only at the stage of final arguments that it was noted that the formal written statement was not on record.

5. In a situation like this, there were two courses open for the Trial Court; one is that has been adopted by the Trial Court, and there was no illegality in treating the plaint of the suit of the respondent as her written statement in the suit filed by the petitioner. However, the better course ought to have been to provide one opportunity to the respondent to file written statement, confined to the subject matter of the suits and the issues and the evidence that had been led by the respondent. This could have afforded an opportunity to the petitioner to controvert averments, if any, specific to its pleas. That could have met the provisions of requirement of Order 8 Rule 5 CPC also. Since this court has already taken note of the fact that the issues have already been framed and the

evidence has been recorded and no further evidence was to be led by the parties, in the interest of substantial justice, the respondent herein is permitted to file written statement confined to subject matter of the suit as also issues and the evidence led by her, beside the legal averments, if any. The petitioner would be entitled to file rejoinder, if any. Since both the parties knew the cases of each other and have already led their entire evidence, no prejudice is to be caused to anyone of them. This order is being passed to meet the technical objection of the petitioner that he may have to controvert the averments of the respondent which may be taken by her in the written statement. The controversy, if any, that may be raised by any party for additional issue or additional evidence, would be decided by the Trial Court in accordance with the law as also the observations made by this court in the order dated 27.4.2011 as also of this order.

6. With these observations, the petition stands disposed of accordingly.

M.L. MEHTA, J.

AUGUST 27, 2012/akb