Prithvi Singh vs Azadpur Agriculture Produce ...
2014 Latest Caselaw 3955 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.M.(M) No.786/2014 & C.M.Nos.13941/2014 (for exemption) and
  13942/2014 (for stay)

%                                                   27th August, 2014

PRITHVI SINGH                                        ......Petitioner
                          Through:       Mr.Pramod Ahuja with Mr.Umesh
                                         Tyagi, Advocates.

                          VERSUS

 AZADPUR AGRICULTURE PRODUCE MARKET COMMITTEE
 (AAPMC)                               ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This is a petition under Article 227 of the Constitution of India

impugning the order of the trial court dated 02.7.2014 which has allowed the

filing of the written statement by condoning the delay.

2. Firstly, I would like to observe that certain orders are made appealable

in Code of Civil Procedure, 1908 (CPC) and certain orders are not made

appealable. Once the orders are not appealable, the object of law is that such

orders should not be appealed by the litigants inasmuch as such orders

ordinarily do not cause prejudice. Powers under Article 227 of the

Constitution of India are discretionary and extraordinary powers, and the

same are exercised to ensure that injustice is not caused. Procedural orders

are ordinarily not interfered with under Article 227 of the Constitution of

India, more so when there is effectively only an extension of time granted

for filing of the written statement. No doubt, by amendment of CPC by the

Amending Acts of 1999 and 2002, a total period of 30 days plus delay to be

condoned upto 60 days is provided under Order VIII Rule 1 CPC, however,

now it is settled law as per the various judgments of the Supreme Court that

the period of filing of written statement is a directory period and not a

mandatory period. No doubt, delay which is a large delay would not be

condoned as a matter of routine, however, condonation of delay depends

both as per the facts which are in issue i.e the valuable rights of parties

involved as also the reasons given for the delay. Ordinarily, delay of just a

few months can be condoned subject to payment of costs.

3. In the present case, written statement was filed by the respondent

within about 7½ months of service i.e a delay of about 4½ months beyond

the prescribed period of 90 days. The period of 4½ months in my opinion, in

the facts of the present case where valuable rights of parties are involved

with respect to entitlement of the respondent to construct on its

property and give right of access as claimed by the petitioner/plaintiff, is not

a large delay and smacking of malafides for the trial court to have not

condoned the delay and take the written statement on record with payment

of costs and hence the delay has been condoned.

4. Learned counsel for the petitioner places reliance upon a judgment of

the learned Single Judge of this Court in the case of Sardar Vallabhbhai

Patel Smarak Trust Vs. Samarth Nangia 177 (2011) DLT 499, however,

the judgment will not apply to the facts of the present case because whether

delay should be condoned is an aspect depending on the facts of each case

and in view of the explanation which has been given with respect to delay

that the concerned officer, M.P.Gulati who was in-charge of the case on

behalf of the respondent/Azadpur Agricultural Produce Market Committee

was to retire, and therefore he in his works pertaining to retirement forgot

filing of the written statement and the file was misplaced, is a good ground

for condonation of delay.

5. In view of the above, there is no merit in the petition, and the same is

therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 27, 2014/KA