Delhi High Court
Girija Devi vs Madan Kumar & Ors. on 29 August, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 75/2013
% 29th August , 2014
GIRIJA DEVI ......Petitioner
Through: Mr. Shyam Sunder Chaudhary, Adv.
VERSUS
MADAN KUMAR & ORS. ...... Respondents
Through: Mr. Arvind Kumar Jha, Adv. for R-1.
Ms. Jyotsna Kumar, proxy counsel for
all respondents except respondent
no.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Mr. V.S.Pandey, Advocate, original counsel for respondent
no.1 is discharged as the new counsel Mr. Arvind Kumar Jha, Advocate.
appears for respondent no.1.
2. This petition under Article 227 of the Constitution of India
impugns two orders. The first order dated 1.11.2012 and the second order
dated 21.11.2012. By the first order dated 1.11.2012, application filed by the
plaintiff/petitioner to take off the record the written statement of defendant
CM(M) 75/2013 Page 1 of 3
no.2 has been dismissed. By the second order, the application for review of
the order dated 1.11.2012 has been dismissed.
3. The case of the petitioner/plaintiff is that the written statement
filed on record of the defendant no.2 should be taken off the record because
besides the thumb impression appearing on the written statement it is written
"RTI of Smt. Girja Devi" and Smt. Girja Devi is the plaintiff and not the
defendant no.2.
4. Trial court notes that obviously the mentioning of the
expression "RTI of Smt. Girja Devi" is a typing mistake because defendant
no.2 is Smt. Janki Devi. Therefore, written statement actually was of Smt.
Janki Devi and there was only a clerical mistake of writing the thumb
impression of Smt. Janki Devi to be of Smt. Girja Devi/plaintiff, but, the
same cannot make the written statement as having signed by the
plaintiff/petitioner and not by the defendant no.2. Trial court also notes that
the objection has been taken after the death of defendant no.2, and after the
legal heirs of defendant no.2 were substituted on an application which was
not opposed by the petitioner/plaintiff. The relevant observations of the trial
court in the impugned order dated 1.11.2012 read as under:-
"Written statement filed on behalf of defendant no.2 bears a
thumb impression but in the column it is mentioned that it is RTI of
CM(M) 75/2013 Page 2 of 3
Girja Devi. It is pertinent to mention there that defendant no.2 died
during the proceedings of the suit and the LRs of defendant no.2 were
also impleaded vide order dated 01.4.2010 passed by the Ld.
Predecessor of this court. Raising an objection at this stage when the
defendant no.2 is not alive seems meritless. The court cannot verify
whether the thumb impression appearing on the written statement of
defendant no.2 is of defendant no.2 only and RTI of Smt. Girja Devi
was mentioned inadvertently. The court is inclined to accept the
contention of defendant no.2 that the mentioning of RTI of Smt. Girja
Devi besides thumb impression appearing on written statement of
defendant no.2 is an inadvertent mistake due to the reason then
defendant no.2 would have not gained anything by putting a thumb
impression of plaintiff instead of thumb impression of defendant no.2
on the written statement. The courts are not made for punishing
illiterate parties for mistake. If a strict and technical view is taken at
this stage that will effect the stand of defendant no.2 in the present suit
irreparably. Further it is pertinent to mention here that application
under order 22 rule 4 CPC for impleading defendant no.2 was allowed
on no objection of Ld. Counsel for plaintiff. In view of this
discussion, and in order to decide the matter on merits rather on
technicalities the present application is hereby dismissed."
5. In view of the above, the application to strike off the written
statement of defendant no.2 was rightly dismissed by the trial court. There is
no merit in the petition, and the same is therefore dismissed, leaving the
parties to bear their own costs.
6. Costs of Rs. 5000/- imposed vide the order dated 8.7.2014 of
this Court is waived.
AUGUST 29, 2014 VALMIKI J. MEHTA, J.
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