Surender Kaur vs M/S. Roma International Pvt. Ltd.
2012 Latest Caselaw 3887 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) 242/2012 & CM 3626/2012

                                          Date of Decision: 04.07.2012

SURENDER KAUR                                          ...... Petitioners

                          Through:    Mr. Nikhil Malhotra, Advocate.

                                Versus

M/S. ROMA INTERNATIONAL PVT. LTD.                   ...... Respondent

                          Through:    None.

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

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution assails order

dated 13.12.2011 of the learned Additional Rent Controller (ARC),

West whereby the right of the petitioner to file WS to the suit filed

against him was closed.

2. The petitioner was served with the summons of the suit through

registered post on 13th September 2008 and again through Process

Server on 18th September 2008. Taking as it is as stated by the

petitioner that she was served on 18th September 2008, only she was

required to file her written statement within 30 days of the service i.e. on

or before 17th October 2008.

3. As per Order 8 Rule 1 CPC, the period for filing WS is 30 days

from the date of service of summons on the respondent and if the WS is

not filed within this stipulated period of 30 days, then on the

respondent's showing good cause of inability to file the same within 30

days, the WS can be filed within 90 days.

4. In this case, the counsel for the petitioner appeared before the

Court of Civil Judge on 20th November 2008, but, no WS was filed. On

19th January, 2009 the petitioner appeared in person and the matter was

adjourned to 26th February 2009 for filing the WS. However, when

none appeared for the petitioner on this date and no WS was filed, the

defence of the petitioner was struck off.

5. It was the case of the petitioner that next date of hearing was

noted down as 28th February 2009 instead of 26th February 2009. When

the petitioner appeared in the Court on 28th February 2009 she did not

find her case listed on that day and on inquiry she came to know that it

was listed on 26th February 2009 when it was adjourned for 25th April

2009.

6. The learned Trial Court had taken note of all these facts and noted

that no WS was filed within the statutory period of 30 days and even no

application for condonation of delay was filed thereafter.

7. Taking as it is stated by the learned counsel for the petitioner that

the petitioner was served on 18th September 2008 and that next date was

noted down as 28th February 2009, neither any WS was filed nor any

application for condonation of delay was filed by the petitioner till the

passing of the impugned order by the Civil Judge. There was apparently

unexplained delay of more than four months which period was even

beyond the period of 90 days which could be granted by the Court on

showing good cause of inability to file WS by the petitioner in 30 days.

8. After the amendment of Order 8 Rule 1 CPC, an obligation is

casted on the defendant to file WS within 30 days after service of

summons on him. However, for the reasons to be recorded in writing

the court may, in a given case, also extend the time up to 90 days for

filing written statement. There is no doubt that the provisions contained

in Order 8 Rule 1 CPC is directory and not substantive and that in an

appropriate case, on the defendant showing good cause of not being able

to file the WS within the period of 30 days, the court can extend the

time. But it is trite that the time could only be extended in exceptional

hard cases. It was apparent from the legislative intention which has

fixed the upper time limit as 90 days. Thus, the discretion could be

exercised by the Court to extend the time not in routine and on the mere

asking of the defendant. It is more so when the period of 90 days stands

expired. As per Salem Advocate Bar Association, Tamil Nadu Vs.

UOI AIR 2005 SC 3353, the discretion of the court to extend the time

could not be exercised frequently and routinely so as to nullify the

period fixed by Order 8 Rule 1 CPC.

9. I do not see any illegality or perversity in the impugned order.

The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

JULY 04 , 2012 awanish