Delhi High Court
Onkar Swarop Bhatnagar And Anr. vs M/S Drishticoin Properties ... on 10 February, 2014
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ C.S. (OS) No.1415/2011
Decided on : 10.02.2014
ONKAR SWAROP BHATNAGAR AND ANR....... Plaintiff
Through: Mr.S.K.Sharma, Mr.Puneet Relan and
Mr.Prayas Aneja, Advs.
Versus
M/S DRISHTICOIN PROPERTIES PVT.LTD.& ANR.
... Defendant
Through: Mr.Sanat Kumar and Mr.Ajay Satija,
Advs.for D-1
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
OA No.15/2014
1. This is a chamber appeal against the order dated 20.11.2013.
The plaintiff is raising the grievance with regard to the orders
passed on two IAs being IA No.2187/2013 filed under Section
151 CPC and IA No.837/2013 filed under Section 148 r/w
Section 151 CPC for enlargement of time to file the written
statement.
2. This is a suit for declaration and permanent injunction in which
the defendant filed his written statement on 15.10.2011. Since
there was a delay of 22 days in fling the written statement, an
application under 148 r/w Section 151 CPC being IA
No.837/2013 was filed seeking condonation of delay in filing
the written statement. In the application, it was mentioned that
the next date of hearing is 01.02.2013 and therefore the
application may be listed on the said date.
3. The application had a chequered history as it was subjected to
various objections by the registry. It is the case of the
defendant No.1 that despite his having made a request to the
Registry that the application be listed on 01.02.2013, the same
was listed on 21.01.2013 and as the defendant No.1/appellant
was ignorant about the same, consequently he did not appear on
21.01.2013 and the same was dismissed in default. On learning
about the said dismissal of the application in default, the
appellant filed another application being IA No.2187/2013
which was also listed before the court on 20.11.2013. In this
application, a prayer was made for restoration of IA
No.837/2013 by virtue of which the condonation of delay of 22
days was sought in filing the written statement.
4. On 20.11.2013, the counsel for defendant No.1/appellant did
not appear and consequently the court allowed the application
on the submission made by the learned counsel for the
plaintiff/respondent though subject to payment of cost of
Rs.5,000/- and restored IA No.837/2013 seeking condonation
of delay of 22 days in filing the written statement but so far as
IA No.837/2013 is concerned, the same was dismissed on
second call at 2.25 P.M. as the counsel for the defendant No.1
had again not appeared.
5. The present chamber appeal has been filed on account of two
reasons. Firstly, on account of imposition of cost of Rs.5,000/-
in allowing IA No.2187/2013 and secondly on account of
dismissal of IA No.837/2013 seeking condonation of delay of
22 days in filing the written statement.
6. I have carefully gone through the record. The written
statement stands already filed and the defendant No.1 while
filing the application under Section 148 of CPC for enlargement
of time for filing of the written statement, it was specifically
mentioned that the same be listed on 01.02.2013, the Registry
seems to have inadvertently without noticing the said prayer of
the defendant No.1, listed the application on 21.01.2013
because of which this problem has cropped up that is instead of
listing the application on the date prayed, it was listed on a date
of which the appellant was not aware. Consequentially, the
application got dismissed. This necessitated in filing of an IA
No.2187/2013 seeking restoration of IA No.837/2013. Neither
the counsel for the defendant No.1 nor the defendant No.1
himself appeared when both these applications were taken up
on 20.11.2013 which resulted in passing of the impugned order.
A cost of Rs.5,000/- was also imposed on the defendant No.1
while allowing the application seeking restoration of IA
No.837/2013.
7. The intent of law is not to punish a person for inadvertent
default in appearing before the court, but to advance interest of
justice. In the instant case, the explanation which has been
furnished by the defendant No.1 for his non appearance on
20.11.2013 seems to be quite plausible. I am, therefore,
inclined to condone the absence of the counsel or the defendant
No.1 on 20.11.2013 and waive the cost of Rs..5,000/- which has
been imposed while allowing IA No.2187/2013 seeking
restoration of IA No.837/2013 which has subsequently been
dismissed in default as the defendant No.1 was not present.
Therefore, vide order dated 20.11.2013 not only cost of
Rs.5,000/- was imposed on the defendant No.1/appellant, but
also his application seeking condonation of delay of 22 days in
filing the written statement was dismissed in default.
8. Taking a lenient view of the entire matter and rather than
getting entangled in these technicalities, the appeal is allowed,
the cost of Rs.5,000/- is waived, the IA No.837/2013 seeking
condonation of delay of 22 days in filing the written statement
is allowed and the same is taken on record. However, needless
to say that as there is admittedly a delay of 22 days in filing the
written statement and the plaintiff and his counsel have been
put to inconvenience, therefore, the defendant No.1 must be
burdened with cost of Rs.10,000/-. Accordingly, the appeal is
allowed subject to payment of cost of Rs.10,000/- and the order
dated 20.11.2013 is set aside. Let the written statement of
defendant No.1 be taken on record.
V.K. SHALI, J.
FEBRUARY 10, 2014
dm
