Sh. Harsh Chadha vs Sh. C.K.Sharma
2014 Latest Caselaw 4175 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CM(M) No. 818/2014 & CM No. 14619/2014 (Stay)

%                                              5th September, 2014

SH. HARSH CHADHA                                     ......Petitioner
                          Through:       Dr. Aurobindo Ghose, Adv.


                          VERSUS

SH. C.K.SHARMA                                       ...... Respondent

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 is filed under Article 227 of the Constitution of

India impugning the order of the trial court dated 30.7.2014 by which the

trial court has recalled its order dated 13.1.2014 allowing the

petitioner/defendant to file written statement to the amended plaint i.e the

petitioner/defendant was not allowed to file the amended written statement.

2. The facts of the case are that a suit for recovery of

Rs.3,17,365/- was filed by the respondent/plaintiff against the

petitioner/defendant and in which case during the course of addressing final

arguments the case was adjourned for remaining arguments on 13.11.2013

and the plaintiff/respondent was directed to correct the cause title of the suit

and the verification clause and the matter was adjourned to 13.1.2014. On

13.1.2014, when the amended plaint correcting the verification clause and

cause title was filed, court gave time to file amended written statement.

Respondent/plaintiff applied for recall of this order on the ground that the

defence of the petitioner/defendant was already struck off way back on

10.10.2011 and therefore, there was a mistake committed in passing a

routine order for filing of the amended written statement.

3. This application has been allowed and the order dated

13.1.2014 was recalled which had directed filing of the written statement to

the amended plaint.

4. I do not find any illegality whatsoever in the impugned order

recalling the order dated 13.1.2014 directing filing of the written statement

because the right to file the written statement was closed way back vide

order dated 10.10.2011 when the defence was struck off. In fact, an

application of the petitioner/defendant for setting aside the order dated

10.10.2011 was also dismissed by the court on 22.2.2012. Therefore, when

at the stage of final arguments, the respondent/plaintiff was only allowed to

make technical changes in the plaint of the cause title and the verification

clause, it did not mean that the orders dated 10.10.2011 and 20.2.2012 were

recalled and the petitioner/defendant would be allowed to file the written

statement. Only technical corrections were directed to be carried out in the

plaint and which were carried out and therefore there does not arise any right

in the petitioner/defendant to file a written statement.

5. Since the trial court had committed an inadvertent error in

allowing filing of the written statement on account of the technical

amendments being carried out in the plaint, by the impugned order, the order

dated 13.1.2014 has been recalled.

6. The relevant aspect has been rightly dealt with by the trial court

in para 5 of the impugned order dated 30.7.2014 and which reads as under:-

"5. The first contention of the counsel for defendant is that the present application has become infructuous/non- maintainable as the order dated 13.11.2013 has become final because the plaintiff has complied with the said order by filing Amended Plaint on 28.11.2013 and the direction for defendant to file Written Statement to Amended Plaint was duly consequently direction/order. I do not find any force in his contention. The brief background of the case is that the defendant was served with summons of this suit on 22.07.2011 but he failed to file Written Statement till 10.10.2011 and, therefore, his opportunity to file Written Statement was closed by Ld. Predecessor Court vide order dated 10.10.2011.

Thereafter, plaintiff had filed affidavit in evidence and was partly examined-in-chief also. But on 18.02.2012, the defendant moved an application U/Sec.151 CPC for setting aside order dated 10.10.2011 and prayed for providing it the opportunity to file Written Statement. But the said application was dismissed by the Ld. Predecessor Court vide detailed order dated 22.02.2012. Thereafter, the matter was adjourned for final arguments after examination of PW-1. Though final arguments were heard in part by Ld. Predecessor Court on 16.07.2013 and 03.10.2012 but on 13.11.2013, the Ld. Predecessor Court directed the plaintiff to correct the Verification Clause and Cause-title of the Plaint and adjourned the matter for 13.01.2014 for arguments. In compliance to the said order, the plaintiff filed the Amended Plaint on 28.11.2013, amending therein the Verification Clause and Cause-title. In original Plaint, M/s. Cottex Dyeing (a Proprietary Concern) was made defendant through its proprietor Harsh Chadha, but on Court's direction, Amended Plaint was filed by making Harsh Chadha as defendant and further by doing correction in the Verification Clause. Thus, vide this Amended Plaint, the plaintiff had not carried out any amendment with respect to the merits of the case. Only two formal amendments were carried out at the direction of the Court for curing irregularity. The defendant's right to file Written Statement was closed long time back and his application for setting aside that order was also dismissed. Thus, the question for giving defendant another opportunity to file Written Statement did not arise at all. It appears as a result of sheer inadvertence that the Ld. Predecessor Court vide order dated 13.01.2014 had adjourned the matter for 18.02.2014 for filing Written Statement to the amended Plaint. At the time of passing the said order, nobody was present from plaintiff's side to apprise the Court that the defendant's opportunity to file Written Statement was already closed long time back. On the said day when the counsel for plaintiff appeared later on, he had apprised the Court

about the same which is recorded in the ordersheet itself. Since no amendment has been carried out on the merits of the case, so no question of giving defendant opportunity to file Written Statement to amended Plaint arises. Even from the ordersheet dated 13.11.2013, it is clear that Ld. Predecessor Court was not at all going to give defendant opportunity to file Written Statement to amended Plaint as after giving direction to plaintiff to correct the Verification Clause and Cause-title, the Court had adjourned the matter for arguments (not for Written Statement ) because already part final arguments were heard in this case. Thus, it is only due to sheer inadvertence that vide order dated 13.01.2014, the matter was adjourned in routine manner for Written Statement to amended plaint as nobody had apprised the Court at the time either about the fact that the defendant's opportunity to file Written Statement was already closed or about the fact that no amendment on merits of the case was carried out in amended Plaint. Hence, the contention of counsel for defendant that the present application has become infructuous or non-maintainable, is rejected."

7 (i). Learned counsel for the petitioner argued two points. First is

that amendment if allowed will relate back to the original date of the plaint

and therefore petitioner should be allowed to file the written statement.

Secondly, it is argued that there is an inherent right to file an amended

written statement once there is an amendment to the plaint.

(ii). Both the arguments urged on behalf of the petitioner are

misconceived because in ordinary circumstances when plaint is amended

obviously an amended written statement can be filed, however, in the

present case, defence was already struck off and an application to recall that

order striking of defence was also dismissed. Only technical corrections

were directed to be made by the respondent/plaintiff at the stage of final

arguments and which obviously does not give a right to the

petitioner/defendant whose defence has been struck off to file the written

statement.

8. Dismissed.

SEPTEMBER 05, 2014                           VALMIKI J. MEHTA, J.
ib