Delhi Wakf Board vs Sh. Vijay Kumar Saini & Ors.
2014 Latest Caselaw 3058 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) 639/2014
%                                               11th July, 2014

DELHI WAKF BOARD                                          ......Petitioner
                           Through:      Mr. Wajeeh Shafiq, Adv.


                           VERSUS

SH. VIJAY KUMAR SAINI & ORS.                                  ...... Respondents
                  Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This petition under Article 227 of the Constitution of India impugns

the order of the trial court dated 13.2.2014 which has dismissed the two

applications which were filed by the petitioner/defendant. One application

was under Order 8 Rule 1 CPC to file the written statement by recalling the

earlier order closing the right to file written statement.           The second

application was under Order 7 Rule 11 CPC. In spite of the fact that the two

appeals should have been filed against two orders and not one consolidated

appeal, I am yet in the interest of justice entertaining this petition.



CM(M) 639/2014                                                                 Page 1 of 3
 2.     The petitioner is the defendant in the trial court. The right of the

petitioner to file written statement was closed way back vide order dated

3.5.2008 because in spite of repeated opportunities the petitioner-defendant

did not file the written statement. That order had become final. Once that

order became final, the subject application which has been dismissed by the

impugned order, moved after about five years again seeking to file the

written statement, was hence clearly misconceived, and therefore has been

rightly dismissed by the trial court.


3(i)   So far as the second application under Order 7 Rule 11 CPC is

concerned, if this application is allowed to be entertained, then it would

mean that effectively issue which should have been taken up in the written

statement, and which written statement has not been allowed to be filed, will

be allowed to be entertained by means of an application. The application

under Order 7 Rule 11 CPC was also therefore totally misconceived because

no written statement exists, issues of the written statement cannot be allowed

to be urged by filing of applications and which would mean doing indirectly

what cannot be done directly. Besides, the issue which was raised in the

application under Order 7 Rule 11 CPC filed by the petitioner-defendant, has




CM(M) 639/2014                                                             Page 2 of 3
 been concluded against the petitioner right up to this Court, and which is

noted in internal page 3, para 2 of the order.


(ii)         Though counsel for the petitioner urges that the earlier

judgment in RSA No.126/2009 does not decide the issue raised in the

application under Order 7 Rule 11 CPC, even if that be so, once the written

statement is not on record, defences which ought to have been taken up in

the written statement cannot be allowed to be entertained by means of filing

of an interim application by the defendant/petitioner.

4.     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.




JULY 11, 2014                                    VALMIKI J. MEHTA, J.

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