Union Of India & Ors. vs Shanti Gurung & Ors.
2014 Latest Caselaw 1181 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                       Order Reserved on:   5 th February, 2014
                       Order Pronounced on:     5 th March, 2014

+                      OA 146/2013 in CS(OS) 610/2012

U NION O F INDIA &      ORS .                             ..... P LA IN TIFFS

                                Through:      Mr.   A.  S.   Chandioke,
                                              Senior Advocate with Ms.
                                              Yamini Khurana , Advocate

                                versus

S HANTI GURUNG & ORS .                                    ..... D EFENDAN TS

                                Through:      Mr. Mohit Choudhary with
                                              Ms. Jayshree Satpute, Ms.
                                              Damini Chawla and Ms.
                                              Pragya Singh, Advocates
                                              for Defendant No. 1
       CORAM:

       HON'BLE MR. JUSTICE SANJEEV SACHDEVA

SANJEEV SACHDEVA, J.

OA No.146/2013

1. The Plaintiffs have filed the Chamber Appeal

impugning the order dated 06.09.2013 of the Joint

Registrar. The Joint Registrar by the order of

06.09.2013 allowed the application of the Defendant

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No. 1 for condonation of delay of 129 days in filing the

Written Statement. The Joint Registrar by the

impugned order has held that though the Defendant

could have filed the Written Statement within

reasonable time after service but consumption of

some time in communication overseas cannot be ruled

out. He has further held that the Defendant No. 1

cannot claim that the entire delay has been

occasioned on account of loss in transaction or for

want of instructions/details and as such, some amount

of neglect is attributable to the Defendant. He has,

however, held that in the larger interest, considering

the nature of lis, the stakes involved and the stage of

proceedings, the prejudice caused to the Plaintiff could

be compensated in terms of the costs. The delay has

accordingly been condoned and the Written Statement

has been directed to be taken on record. The Plaintiffs

have impugned the condonation of delay and taking

on record of the Written Statement.

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2. The contention of the Plaintiff is that the facts of the

present case are so glaring that even if the provisions

of Order 8 rule 1 of the Code of Civil Procedure were

to be liberally construed, the Defendant No. 1 is not

entitled to condonation of delay in filing the Written

Statement and for exercise of discretion in her favour.

As per the Plaintiffs the Written Statement filed is

defective and is no Written Statement in the eyes of

law and the application seeking condonation of delay

cannot be construed as an application filed by or on

behalf of the said Defendant.

3. The Plaintiff filed the present suit for declaration and

injunction against three Defendants. For the purposes

of condonation of delay, the merits of the case of the

Plaintiffs is not germane, what is relevant is the

service of the summons and the filing of the Written

Statement and the purported application seeking

condonation of delay by the Defendant No. 1.

4. Summons in the suit were directed to be issued on

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14.03.2012. On 03.05.2012, an advocate entered

appearance on behalf of the Defendant No. 1 and

sought time to file the Written Statement. The Court

permitted the Written Statement to be filed within six

weeks. The matter thereafter was listed on

22.05.2012, 18.07.2012, 30.07.2012, 07.08.2012 and

27.08.2012, when the advocate for the Defendant No.

1 appeared. However, no Written Statement was filed.

On failure of the Defendant No. 1 to file the Written

Statement, the Plaintiffs on 08.08.2012, filed IA

No.15833/2012 (under Order VIII Rule 10 CPC). As

the advocate for the Plaintiffs could not trace out the

said application, a fresh application being IA

16905/2012 (under Order VIII Rule 10 CPC) was filed

on 05.09.2012.

5. Consequent to the filing of the application under Order

VIII Rule 10 by the Plaintiffs, an application being IA

20039/2012 (under Order VII Rules 10 & 11) was filed

on behalf of the Defendant No. 1. An application

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being IA 20042/2012 (under Order XXXIX Rule 4)

dated 30.10.2012 on behalf of the Defendant No. 1

was also filed on 31.10.2012. The Written Statement

dated 30.10.2012 was filed on 31.10.2012. Since the

Written Statement was beyond time, an application

being IA 8937/2013 dated 11.04.2013 was filed on

behalf of the Defendant No. 1 seeking condonation of

delay of 129 days in filing the Written Statement. The

Plaintiffs objected to the condonation of delay.

6. The Joint Registrar by the impugned order noticed that

the Defendant No. 1 had sought condonation of delay

in filing the Written Statement on the ground that the

Defendant No. 1 was currently residing in New York

and it required substantive time for getting

details/instruction s and, in view of the fact that the

Written Statement and affidavit sent to her advocate

from US A were lost in transaction. She had to get

another affidavit signed and attested for filing the

Written Statement.

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7. Counsel for the Plaintiffs contended before the Joint

Registrar that the application seeking condonation of

delay was filed after 300 days. As per the plaintiffs the

date on which the application seeking condonation of

delay was filed would be the date on which the Written

Statement would be deemed to be filed and thus the

delay would not be 129 days but around 300 days. It

was further contended that no document had been

filed to substantiate that the Written Statement was

ever sought to be filed earlier and was lost in post.

The Joint Registrar, as noticed above, though

attributing some neglect to the Defendant No. 1, has

condoned the delay.

8. Learned senior Counsel for the Plaintiff has, in

addition to the above facts, submitted that the Written

Statement filed by the Defendant No. 1 is defective

and is not a Written Statement in the eyes of law. He

has further contended that even the application

seeking condonation of delay cannot be treated as an

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application filed either by or on behalf of the

Defendant No. 1 as the same is neithe r signed by the

Defendant No. 1 nor supported by an affidavit of the

Defendant No. 1. He has further contended that the

reasons for the delay pleaded on behalf of the

Defendant No. 1 in the said application by the

executant of the application are hearsay and cannot

be taken as ground s sufficient for condoning the delay.

9. The Written Statement was neither filed within the

stipulated period nor within the time permitted by the

Court vide order dated 03.05.2012 i.e. within six

weeks.

10. Perusal of the Written Statement filed on behalf of the

Defendant No. 1 shows that the Written Statement is

neither signed by the Defendant No. 1 n or on behalf of

the Defendant No. 1 by any authorised person. The

said place for signature of the Defendant is blank. The

Written Statement is signed only by the advocate for

the Defendant No. 1 and by hand it mentions the place

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and the date as "New Delhi dated 30.10.2012 ".

Admittedly, the Defendant No. 1 was not in New Delhi

on 30.10.2012. The Written Statement also does not

contain any verification.

11. The affidavit in support of the Written Statement is

dated 30.09.2013 (i.e. one month before the date of

the signing of the Written Statement) . The affidavit

states that the present Written Statement has been

drafted by the advocate of the Defendant No. 1 under

her instructions and the contents of the same are true

and correct to the "best of her knowledge and belief".

Paragraphs D & E of the affidavit refer to "present

application". The affidavit do es not mention which part

of the Written Statement is true to the knowledge of

the deponent and which part of the Written Statement

is based on information received and believed to be

correct. The date mentioned on the Written Statement

by hand is 30.10.2012 at New Delhi and the affidavit is

verified at Woodside, New York on 30.09.2012. This

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shows that the affidavit was executed prior to the

Written Statement. The Written Statement dated

30.10.2012 was filed in the Registry on 31.10.2012.

Copy of the Written Statement was delivered to the

Plaintiffs on 30.10.2012. So, it is apparent that the

Written Statement which is dated 30.10.2012 and is

signed only by the advocate at New Delhi was not sent

to the Defendant No. 1 for signatures or verification.

The affidavit which bears the stamp of a notary public

does not bear any endorsement that any oath is

administered to the deponent and any affirmation is

made by the Deponent. The affidavit also does not

bear any date when the notary public had signed it,

though, it may be presumed that the date which is

written on the affidavit i.e. 30.09.2012 is the date on

which the affidavit is signed by the deponent and

attested by the notary public.

12. Now coming to the application seeking condonation of

delay. i.e. I.A. 8937/2013 and I.A. 20039/2012 (under

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Order VII Rules 10 & 11 CPC) and I.A. 20042/2012

(under Order XXXIX Rule 4 CP C). The three

applications are dated 30.10.2012 and the affidavits

are dated 30.09.2012.

13. The application i.e. IA 8937/2013 (application seeking

condonation of delay) has neither been signed by the

Defendant No. 1 nor supported by an affidavit of the

Defendant No. 1. The application is signed only by the

advocate for the Defendant No. 1 and the place for

signatures of the Defendant No. 1 is blank. Personal

affidavit of the advocate for the Defendant No. 1 has

been filed in support of the application. In the

verification of the affidavit, it is mentioned that the

application is verified at Woodsland, New York, e ven

though the address of the deponent i.e. advocate for

the Defendant No. 1 is shown as that of Delhi and the

affidavit is attested by an Oath Commissioner at Delhi.

The reasons for delay are stated as under:-

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weeks time to file W.S. on 3.5.2012. The Defendant No. 1 is currently residing in New York. Looking at several issued involved in the present suit, it took substantial time to get detailed instructions from the Defendant No. 1.

for the W.S.

4. Also, the Defendant No. 1 has posted the duly signed and attested affidavit for W.S. to her counsel from U.S. which got lost in the post. She had to get another affidavit signed and attest for filing the present W.S."

14. The reason seeking condonation of delay stated in the

application is that it took substantial time to get

detailed instructions from the Defendant No. 1 for the

Written Statement and that the Defendant No. 1 had

posted the duly, signed and attested affidavit for

Written Statement to her counsel from US which got

lost in the post and, accordingly, she got another

affidavit signed and attested for filing the Written

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Statement.

15. The facts stated in the paragraphs 3 & 4 that the

Defendant No. 1 is presently residing in the U.S. and

that the affidavit was attested and posted from the

U.S. by the Defendant No. 1 and that it got lost in the

transit are the facts that can only be in the personal

knowledge of the Defendant No. 1. The person who

has signed the application and affirmed the affidavit in

support of the application would not have personal

knowledge of the se facts.

16. Furthermore, the affidavit does not indicate that the

Written Statement which is filed in this Court was ever

seen and signed by the Defendant No. 1. As per the

application it is only the affidavit that is signed and

sent from U.S. so admittedly no Written Statement has

been signed and sent by the Defendant No. 1 from the

U.S. along with the affidavit. The date and manner of

posting of the affidavit, when it was lost and when the

Defendant No. 1 came to know that it had been lost in

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post, is not mentioned . These facts cannot be in the

personal knowledge of the advocate for the Defendant

No. 1, who has sig ned the application in Delhi and

affirmed her personal affidavit.

17. A person can file an affidavit deposing to the facts

which are in the personal knowledge of the deponent

(S EE B HUPINDER S INGH V ERSUS S TATE OF H ARYANA :

AIR 1968 P & H 406). Normally, it is not proper for an

advocate to file an affidavit on behalf of a party.

However, an advocate can certain ly file an affidavit in

a proceeding in respect of facts which are within the

personal knowledge of the advocate. Application

containing facts within the personal knowledge of the

parties, should be signed and supported by the

affidavits of the parties. The application seeking

condonation of delay was neither signed by the

Defendant No. 1 nor supported by an affidavit of the

Defendant No. 1. If there were any facts or

circumstances leading to the delay in filing of the

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Written Statement, which were within the personal

knowledge of the advocate, the advocate could have

filed the application with a supporting affidavit.

However, in the present case, the facts pleaded for

condonation of delay are attributable to the Defendant

No. 1 and within the personal knowledge of the

Defendant No. 1. So the application seeking

condonation of delay could not have been signed

alone by the advocate without signatures of the

Defendant No. 1 and could not have been supported

by an affidavit only of the advocate for the Defendant

No. 1. This application is no application in the eyes of

law and, accordingly, the same could not have been

taken cognizance of by the Joint Registrar.

18. The Written Statement filed on behalf of the Defendant

No. 1 cannot be said to be a validly signed and

executed Written Statement. The Written Statement is

dated 30.10.2012. It is not signed by the Defendant

and does not contain any verification. It is supported

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by an affidavit of the Defendant No. 1 dated

30.09.2012, which was prior to the date of Written

Statement. The affidavit in support of the Written

Statement has to confirm the contents of the Written

Statement. If the affidavit is executed and attested

prior to the preparation of the Written Statement, the

affidavit cannot be taken as an affidavit in support of

the Written Statement.

19. The purpose of verification is to fix responsibility on

the party or person verifying and to prevent false

pleadings from being recklessly filed or false

allegations being recklessly made (S TA TE OF P UN JAB

VERSUS I.M. LALL: ILR 1975 D ELHI 332; S APNA S INGH

P ATHANIA VERSUS J AGDISH C HANDER M EHTA (1998) 75

DLT 725).

20. Since the Written Statement filed on behalf of the

Defendant No. 1 is without her signatures and any

verification, it is clearly defective. However the defect

of signatures and verification in pleadings is an

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irregularity which can be remedied. It is not fatal but is

a cureable defect. Non compliance of any procedural

requirement relating to a pleading should not entail

automatic dismissal or rejection unless the relevant

statute or rule so mandates. Procedural defects and

irregularities which are curable should not be allowed

to defeat substantive rights or to cause injustice .

Procedure, a handmaiden to justice, should never be

made a tool to deny justice or perpetuate injustice, by

any oppressive or punitive use. (M UKHTIAR K AUR

VERSUS GHULAB K AUR AIR 1977 P & H 257; U DAY

S HANKAR TRIYAR VERSUS R AM K ALEWAR P RASAD S INGH

2006 (1) SCC 75). Further the Division Bench of

Bombay High Court in the case of A LL IND IA R EPOR TER

LTD , B OMBAY V ERSUS R AMCHANDRA D HONDO D A TAR

AIR 1961 B OM 292 has laid down that if defects in

regard to the signature, verification or presentation of

plaint are cured on a day subsequent to the date of

filing the suit, the date of institution of the plaint is not

changed to the subsequent date.

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21. The Written Statement filed on behalf of the Defendant

No. 1 is defective and the application is no application

in the eyes of law. Accordingly, the chamber appeal of

the Plaintiff is allowed. The order dated 06.09.2013 of

the Joint Registrar is set aside and the app lication

seeking condonation of delay being IA 8937/2013 is

dismissed as defective .

22. The ends of justice would be served in case an

opportunity is granted to the Defendant No. 1 to cure

the defects in the Written Statement and to file a

proper Written Statement duly signed, verified and

supported by her affidavit and further an opportunity is

also granted to file a proper application seeking

condonation of delay giving proper details, duly signed

and supported by her affidavit.

23. The Defendant No. 1 is accordingly permitted to cure

the defect in the Written Statement and to file a proper

application seeking condon ation of delay within a

period of 8 weeks. In case an application seeking

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condonation of delay is filed the same shall be

considered in accordance with law.

No Costs

SANJEEV SACHDEVA, J

March 5, 2014 st

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