Naresh Kumar vs Meer Singh (Dead) Thr His Lrs & Ors
2014 Latest Caselaw 3096 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 15th July, 2014

              FAO(OS) 41/2014 & CM No.1032/2014 (for stay)
       NARESH KUMAR                                           ..... Appellant
                  Through:               Mr. Ratnesh Bansal, Adv. with
                                         appellant in person.
                                    Versus

       MEER SINGH (DEAD) THR HIS LRS & ORS ..... Respondents

Through: Mr. Rajiv K. Garg and Mr. Ashish Garg, Advocates.

                                         AND

+             FAO(OS) 63/2014 & CM No.1582/2014 (for stay)
       RAJ RANI                                               ..... Appellant
                             Through:    Mr. Ratnesh Bansal, Adv.
                                    Versus

MEER SINGH (DEAD) THR HIS LRS & ORS ..... Respondents Through: Mr. Rajiv K. Garg and Mr. Ashish Garg, Advocates.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. Both the appeals impugn the same order dated 29th November, 2013 (of

the learned Single Judge exercising ordinary original civil jurisdiction in

CS(OS) No.831/2006 filed by the respondent no.1 / plaintiff) of allowing IA

No.3406/2013 filed by the respondent no.1 / plaintiff for rejection of the

written statement filed by each of the appellants in the two appeals and

ordering the removal of the written statements filed by the appellants from the

suit file and striking off the defence of the appellants.

2. Notice of the appeals was issued. We have heard the counsels for the

parties.

3. The respondent no.1 / plaintiff instituted the suit from which these

appeals arise for specific performance of an Agreement of Sale of land, by the

respondent no.2/defendant No.1 Mr. Amar Singh, in favour of the respondent

no.1 / plaintiff. The appellants in each of these appeals applied for impleadment

in the said suit, claiming title to the land which was agreed to be sold by the

respondent no.2 / defendant no.1 to the respondent no.1 / plaintiff. The said

application for impleadment filed by each of the appellants herein was

dismissed. Aggrieved therefrom FAO(OS) No.188/2010 and FAO(OS)

No.195/2010 were preferred and which were disposed of vide common order

dated 28th November, 2011, allowing each of the appellants to be impleaded to

the suit and to file written statements but limited to the ground of their claim to

the land agreed to be sold by the respondent no.2 / defendant no.1 to the

respondent no.1 / plaintiff.

4. The counsel for the respondent no.1 / plaintiff argued that though each of

the appellants thereafter filed the written statement but beyond the extent to

which they were so permitted to file the written statements and accordingly

they were directed vide order dated 7th November, 2012 of the Suit Court to file

written statements confined to the aspect permitted in the order dated 28 th

November, 2011, within four weeks therefrom. The counsel for the respondent

no.1 / plaintiff has further contended that neither of the appellants filed the

written statements within four weeks; they filed fresh written statements on 3rd

January, 2013 i.e. beyond the time of four weeks given on 7th November, 2012,

and that too without any application for condonation of delay. It is further

informed that the fresh written statements so filed were again beyond the scope

permitted by the Division Bench in the order dated 28 th November, 2011; the

respondent no.1 / plaintiff thus filed IA No.3406/2013 supra for rejection of the

written statements filed by each of the appellants impleaded as defendants

no.2&3 to the suit.

5. The learned Single Judge has vide impugned order dated 29 th November,

2013 allowed the aforesaid IA No.3406/2013 filed by the respondent no.1 /

plaintiff, observing:-

(i) that the time of four weeks given on 7th November, 2012 for filing

fresh written statements expired on 5th December, 2012;

(ii) the written statements were filed only on 3rd January, 2013, that

too without any application for condonation of delay; and,

(iii) the written statements so filed on 3rd January, 2013 were also

beyond the scope permitted in the order dated 28 th November,

2011 of the Division Bench.

6. Axiomatically IA No.3406/2013 was allowed and the written statements

filed by the appellants, who are defendants no.2&3 respectively in the suit,

were ordered to be removed and the defence of the appellants was struck off.

7. The star argument of the counsel for the appellants is that the learned

Single Judge has erred in observing that no application for condonation of

delay in filing the written statements was filed. It is contended that IA

No.2640/2013 and IA No.2638/2013 for condonation of delay in filing the

written statements were filed on 13th and 14th February, 2013 and notice

whereof had also been issued. It is also contended that the written statements

filed on 3rd January, 2013 were in consonance with the parameters laid down by

the Division Bench in the order dated 28th November, 2011.

8. Per contra the counsel for the respondent no.1 / plaintiff has argued:-

(a) that the appellants even failed to appear before the learned Single

Judge on 29th November, 2013 when their written statements were

ordered to be removed and their defence struck off;

(b) that they have thereafter also, even though entitled to appear

inspite of their defence having been struck off, failed to appear and

have already been proceeded ex parte;

(c) that the Suit Court has framed issues on the pleadings of the

respondent no.1 / plaintiff and the respondent no.2 / defendant

no.1 and listed the suit for evidence on 1st August, 2014;

(d) that the appellants are merely interested in delaying the disposal of

the suit, as is evident from their conduct aforesaid; and,

(e) that the respondent no.1 / plaintiff on the contrary was made to

deposit the entire purchase consideration in the Court and which is

so lying deposited for the last eight years and the respondent

No.1/plaintiff is suffering owing to the delays on the part of the

appellants.

9. We have considered the rival contentions and have also perused

applications filed by the appellants for condonation of delay in filing the

written statements. Though the said applications do not really show any good

reason for the delay from 5th December, 2012 to 3rd January, 2013 in filing the

written statement, but considering the fact that the recording of the evidence

has not begun as yet, and further considering the fact that even if the suit is

allowed to proceed without the appellants/defendants No.2&3, the respondent

No.1/plaintiff, even in the event of success in the suit, at the time of execution,

will have to deal with the appellants/defendants No.2&3 and which may cause

further delays, we are of the view that these appeals should be disposed of with

the following directions:-

A. The impugned order dated 29th November, 2013 of the learned

Single Judge of allowing IA No.3406/2013 and ordering the

removal of the written statement of the appellants / defendants

no.2&3 and striking off the defence of the appellants / defendants

no.2&3 is set aside.

B. The delay on the part of the appellants / defendants no.2&3 in

filing the written statements is condoned and the written

statements already filed are taken on record.

C. However only such of the contents of the said written statement

shall be read and be permitted to be relied upon, as have been

permitted by the order dated 28th November, 2011 supra of the

Division Bench and any extraneous pleadings therein shall be

deemed to be expunged. It will be open to the learned Single Judge

to expunge such extraneous portions if any, either now or leave the

same to be considered at the final stage.

D. Axiomatically the order proceeding ex parte against the appellants

/ defendants no.2&3 is also set aside.

E. All the aforesaid is subject to payment by each of the appellants /

defendants no.2&3 of cost of Rs.50,000/- to the respondent no.1 /

plaintiff. We may clarify that the said cost includes the cost for

condonation of delay in filing the written statement, the cost of

non-appearance before the learned Single Judge on the date when

the impugned order was made; the cost of setting aside of the order

proceeding ex parte against the appellants / defendants no.2&3 and

the cost of these appeals which have been necessitated owing to

the default of the appellants / defendants no.2&3 in appearing

before the learned Single Judge on the date of the impugned order.

The said cost be paid within one week hereof. Needless to state

that if the cost is not paid, the impugned order as well as the order

proceeding ex parte against the appellants / defendants no.2&3

shall remain / stand.

F. The respondent no.1 / plaintiff shall be at liberty to file replication

confined to the portion of the written statement permitted by the

Division Bench in the order dated 28th November, 2011 before the

next date of hearing before the learned Single Judge.

G. CS(OS) No.831/2006 be listed before the learned Single Judge on

25th July, 2014 for the purposes of framing of additional issues if

any. Needless to state, the additional issues shall be confined to the

pleas in the written statement of the appellants / defendants

no.2&3 which they were permitted to take vide order dated 28th

November, 2011 of the Division Bench.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE JULY 15, 2014 pp