Delhi High Court
Sh. Mahinder Pratap Bhalla vs Sh. Narinder Pratap Bhalla & Ors. on 7 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 48/2014
% 07th November, 2014
SH. MAHINDER PRATAP BHALLA ..... Petitioner
Through Mr.Sunil Goyal with Ms.Deepika
Sachdeva, Advocates.
versus
SH. NARINDER PRATAP BHALLA & ORS. ..... Respondents
Through Mr.Sajan Narain, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M.No.7135/2014 (condonation of delay)
1. For the reasons stated in the application, delay of 28 days in filing the
petition is condoned.
2. Application is disposed of.
C.R.P. 48/2014 & C.M.No.7134/2014 (Stay)
1. The present petition is filed by the petitioner/plaintiff impugning the order
of the trial court dated 30.11.2013 by which the trial court has allowed the
applications and recalled the order of striking off the defence of defendant
no.3/respondent no.3 and permitted the respondent no.3/defendant no.3 to file the
written statement.
2(i) The subject suit is a suit for permanent and mandatory injunction. The
disputes pertain to plot no.S-61, Greater Kailash Part I, Delhi. There were three
defendants in the suit. Defendant no.3/respondent no.3 is an Advocate. In the
present petition, on behalf of the respondents arguments were addressed by
respondent no.3 for himself as also for the respondent nos. 1 & 2.
(ii) Defendants in the suit were served on 07.8.2010 and ultimately on account
of non-filing of the written statement on 09.2.2011 defence of the defendant
no.3/respondent no.3 herein was struck off by the court. Defendant
no.3/respondent no.3 herein thereafter moved an application to recall the order
dated 09.2.2011, and that application was also dismissed by the trial court vide
order dated 30.4.2011. Therefore, the order dated 09.2.2011 became final. The
defendant no.3/respondent no.3 herein thereafter on 03.5.2012 (i.e after one year
of passing of the order dated 30.4.2011) filed the subject applications to permit
taking on record the written statement, and which applications have been allowed
by the impugned order dated 30.11.2013.
3. A reading of the impugned order shows that the same is bereft of
substantive reasoning and the court has bleeped over the fact that the order dated
09.2.2011 had become final by virtue of the order dated 30.4.2011 by the trial
court simply by recording that the provisions of Code of Civil Procedure Act,
1908 (CPC) should be liberally construed, more so when the respondent
no.3/defendant no.3 is an Advocate, and who as per his case was out of station due
to work on 09.2.2011. The only reasoning given by the trial court for recalling of
the earlier order of striking off the defence of respondent no.3/defendant no.3 is
contained in para 4 of the impugned order, and which reads as under:-
" 4. Perusal of the file would show that on 09.2.2011 Ms.Namita Nanda
had requested for adjournment on the basis that the defendant no.1 and 2
who are very old were seriously ill and the defendant no.3 was out of
station. She had sought time for filing WS. Vide detailed order the Court
had struck off the defence of the defendant no.3. On next date of hearing
i.e. 31.03.2011 the defendant no.3 was present who moved an application.
The said application of the defendant was dismissed vide order dated
30.4.2011. However, it is noteworthy that the application was not decided
on merits and it was dismissed being not maintainable as per the Delhi
High Court Rules. No doubt the defendant no.3 has filed the applications
after a long delay, still, it is settled proposition that while deciding an
application U/o 9 Rule 7 CPC and U/s 151 CPC a liberal approach has to
be taken. Further, the rules of the proceedings are handmaid of justice and
They should be liberally construed. I am of the considered opinion that the
suit has to be decided on merits and a party should not suffer generally due
to delay in filing of pleadings. Considering the fact that the defendant no.3
is also an Advocate who has shown that he was out of station due to his
work, I am of the considered opinion that he deserves to be heard on
merits in the suit. However, it is also to be kept in minding that despite
opportunity he did not file WS on time."
4. In my opinion, the trial court has really fallen into a very serious error and
in fact committed a gross illegality in taking away the finality of the earlier orders
passed by the trial court on 09.2.2011 and 30.4.2011 striking off the defence of
the defendant no.3/respondent no.3 and in recalling the order of striking off the
defence of respondent no.3/defendant no.3. The aspect that respondent
no.3/defendant no.3 was out of station was duly considered when the defence was
struck off firstly on 09.2.2011 and thereafter on 30.4.2011, and one cannot ignore
the fact that CPC was amended in the year 2002 to ensure that written statement is
filed in an around 120 days, though which period is not mandatory, but the same
gives sufficient guidance with respect to not condoning unnecessarily delay in
filing of the written statement. Even as on 09.2.2011 when the order was firstly
passed striking off the defence, two months beyond the period of 120 days had
expired, and in fact the written statement was not even filed when the order dated
30.4.2011 was passed refusing to recall the order dated 09.2.2011. Therefore the
reason that the respondent no.3/ defendant no.3 is an Advocate is surely not a
ground to set aside the order striking off the defence because all parties have to be
treated equally and it makes no difference if respondent no.3/defendant no.3 to the
suit was an Advocate.
5. The defendant no.3/respondent no.3 herein who argued the case in person
vehemently argued that he was out of station on 09.2.2011 and in fact he was
given an impression that the suit will be withdrawn, and therefore the written
statement was not filed, but I really find no substance or merit in these arguments
because it is not acceptable that any person; much less an Advocate; who is a party
to the proceedings will simply not file the written statement allegedly on the
ground that the plaintiff stated that the suit will be withdrawn. Also, there is no
sufficient reason and explanation given for the huge delay of one year between
passing of the order dated 30.4.2011 refusing to recall the order dated 09.2.2011
and filing of the subject applications after about one year thereafter so as to enable
the defendant no.3/respondent no.3 herein to file the written statement.
6. In view of the above, this petition is allowed and the impugned order dated
30.11.2013 is set aside. Consequently, the orders dated 09.2.2011 and 30.4.2011
striking off the defence of the defendant no.3/respondent no.3 herein will hold the
field. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J
NOVEMBER 07, 2014
KA
