Delhi High Court
Krishna Devi vs Manju Yadav on 19 July, 2012
Author: M. L. Mehta
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1090/2010
Date of Decision: 19.07.2012
KRISHNA DEVI ..... Petitioner
Through: Mr.Rajesh Yadav, Mr.Sumit
Khosla, Adv.
versus
MANJU YADAV ..... Respondent
Through: Ms.Ritu Dhuru, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. The present petition assails the order dated 5.7.2010 and
19.3.2009 of Civil Judge in Suit No. 472/2008.
2. The petitioner/plaintiff had filed the aforesaid civil suit for
permanent injunction against the respondent. Since the
respondent/defendant had not filed written statement within the given
time, the petitioner filed an application under Order 8 Rule 1 CPC
whereupon the right of the defendant to file written statement was
closed on 19.3.2009.The respondent filed an application under Order 47
read with Section 114 CPC for review of the aforesaid order dated
19.3.2009. The said application was allowed and the order dated
19.3.2009 was recalled. The written statement that was already filed by
the respondent on 31.5.2010 was taken on record subject to payment of
cost of Rs. 3000/- The reasons which were given by the respondent for
not filing the written statement in time and till 31.5.2010 as stated in the
application were that not only the counsel for the defendant/respondent,
but her eight months' minor child as also mother was sick and so she
could not prepare and file the written statement. In support of the said
submissions, the medical records of the counsel for the defendant as also
of her daughter and mother were placed on record. The Trial Court, on
perusal of the above-said medical records observed that the reasons
stated by the counsel for not filing the written statement seems to be
probable, but it has affected the rights of the plaintiff. It was observed
that if the written statement of the defendant which is already filed is not
taken on record, it shall defeat the substantial right of the defendant on
account of mistake of his counsel. It was also observed that though
there is delay in filing the written statement, but the suit being at the
initial stage and the trial not having commenced, the procedural
technicalities should not be allowed to defeat the administration of
justice. With all these reasons, the written statement already filed was
taken on record. The said order has been assailed in the present petition.
3. The main grounds that has been taken by the petitioner is that the
provision of Order 8 Rule 1 CPC casts the obligation on the defendant to
file the written statement within the time prescribed therein and which
could not be extended beyond upper limit of 90 days. It is submitted
that no special circumstance was made out by the respondent seeking
further extension of time beyond 90 days. The learned counsel for the
petitioner placed reliance on the decision of Kailash Vs. Nanhku and
Others, (2005) 4 SCC 480 to buttress his arguments that extension of
time beyond 90 days for filing written statement could not be granted
just as a matter of routine and merely for the asking and that, discretion
was not judiciously exercised by the Trial Court in condoning the delay
of about one year and taking the written statement on record.
4. There is certainly some merit in the submission made by the
learned counsel for the petitioner that discretion to extend the period
beyond 90 days must not be understood as nullifying the entire force
and impact of the provision contained under Order 8 Rule 1 CPC.
However, it has to be also born in mind that these provisions are
directery in character and not mandatory. Though the above provision
casts the obligation to file written statement within the time prescribed
therein, it does not take away the power of the court to extend time for
filing written statement beyond 90 days. Of course, for extending time
beyond the mandatory 90 days would certainly require cogent and
justifying reasons. In the case of Kailash Vs. Nanhku (supra), the Apex
Court cautioned that in its judicial discretion in extending the time
beyond 90 days for filing written statement, the court may indeed put
the defendant on terms including the imposition of compensatory costs
and may also insist on an affidavit, medical certificate or other
documentary evidence depending upon the facts and circumstances of
the given case so as to convince the court that the prayer was founded
on grounds which do exist. It was also observed that the extension of
time shall be only by way of exception and for the reasons to be
recorded in writing, however brief that may be. It was held that no strait
jacket formula can be laid down except that the observance of time
schedule contemplated by Order 8 Rule 1 CPC shall be the rule and
departure therefrom an exception, made for satisfactory reasons only.
5. In view of the above, it cannot be said that in no circumstance, the
time beyond 90 days for filing written statement could be extended. In
the instant case, it is noticed above that the Trial Court has taken note of
the fact that there was considerable delay in filing the written statement.
At the same time, discretion in condoning the delay in filing W.S. has
been exercised by the Trial Court only on the medical grounds of the
counsel and that of her eight months' minor child as also the mother of
counsel. The Trial Court exercised the discretion only after perusal of
the medical records of the counsel and her child and mother. The
learned counsel appearing for the respondent submitted before me also
that at the relevant time, she was passing through the difficult time of
pregnancy and had to undergo surgery for delivery and that written
statement, involving perusal and filing of voluminous documents, could
not be prepared and filed. It was in all these circumstances that the
written statement filed by the respondent was taken on record, for which
the petitioner was compensated by way of cost. Thus, I do not see any
infirmity or illegality in the impugned order exercising discretion by the
learned Trial Court in extending the time beyond 90 days and taking the
written statement on record.
6. The petition has no merit and is hereby dismissed. Since the
considerable time has been consumed by the respondent, it is expected
from the Trial Court to compensate the petitioner in expediting the trial
of the case.
7. Petition is disposed of accordingly.
M.L. MEHTA, J
JULY 19, 2012/akb
