Ravinandani And Others vs Raja Prem Singh
2015 Latest Caselaw 2767 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  O.A. No.4/2015 in CS(OS) No.76/2012

                                                     Date of Decision: 07.04.2015

IN THE MATTER OF
RAVINANDANI AND OTHERS                        ..... Appellants
                   Through Mr.Rohan Thawani, Advocate


                         Versus

RAJA PREM SINGH                                     ..... Respondent
                         Through Mr.Shantanu Malik, Mr.Priyank Sharma &
                         Mr.Raghav Gautam, Advocates

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

O.A. No.4/2015(by D-1 & D-2 against the order dated 6.12.2014 passed by the Joint Registrar)

1. The present Chamber Appeal has been filed by the defendants No.1

& 2 against the order dated 6.12.2014, passed by the Joint Registrar.

Vide order dated 6.12.2014, the Joint Registrar had dismissed the

application filed by the defendants, under Order VIII Rule 1 CPC for

seeking condonation of delay in filing the written statement(IA

No.19223/2013).

2. Before dealing with the submissions of the counsel for the

defendants No.1 and 2, it is considered necessary to refer to some

relevant dates for deciding the present Appeal. The present suit was

instituted on 7.1.2012 and summons were issued to the defendants on

17.1.2012. As per the order dated 17.10.2012, defendants No.1 & 2 were

deemed to be served with the summons in the suit on the basis of

pasting. Counsel for the defendants had entered appearance, before the

Joint Registrar, on 12.4.2013. However, the written statement came to

be filed by the defendants after over seven months, on 16.11.2013.

Accompanying the said written statement was an application filed by the

defendants No.1 & 2, under Order VIII Rule 1 CPC for seeking

condonation of delay of 227 days, beyond the extended period of 90 days

prescribed under the Statute.

3. The explanation offered by the counsel for the defendants No.1 & 2

for filing the belated written statement is that after her marriage, the

defendant No.1 is a permanent resident of Canada and her mother,

defendant No.2 is a permanent resident of Himachal Pradesh. He states

that it is well in the knowledge of the plaintiff, who happens to be the

uncle of the defendant No.1 and brother-in-law of the defendant No.2 that

the address of the said defendants is not the one furnished in the memo

of parties, namely, E-96, 2nd Floor, Greater Kailash Enclave, Part-I, New

Delhi. Though it is not denied that the said premises is also one of the

residential properties, owned by the defendants No.1 & 2, learned counsel

states that the plaintiff is well aware of the fact that the defendants do

not reside at the Delhi address and the said premises has remained

unoccupied for the last several years.

4. For the Court to satisfy itself about the permanent place of

residence of the defendants No.1 & 2, vide order dated 7.1.2015, counsel

for the defendants No.1 & 2 was directed to place on record photocopies

of the passport/PAN card of the defendant No.2, which order has been

complied with. A perusal of the said documents reveals that the

defendant No.2's permanent address as reflected in the Aadhar Card,

driving licence and ration card is at Shimla/ Dalhousie, but certainly not

at Delhi.

5. Learned counsel for the defendants No.1 & 2 states that the plaintiff

knew all along that the defendants are not residing at Delhi and due to

the wrong addresses furnished by him in the memo of parties, the Joint

Registrar had ordered service of the summons on his clients through

pasting, a procedure that is not adopted in ordinary course. He goes on

to state that he had entered appearance on behalf of the defendants No.1

& 2 on 12.4.2013, but the written statement could not be filed within the

prescribed period of 30 days that would have expired on 12.5.2013, or

within the extended period of 60 days, that would have expired on

12.6.2013, or for that matter, within the outer limit of 90 days, that

would have expired on 12.7.2013 for the reason that after perusing the

averments made in the plaint, the defendant No.2 had to make efforts to

contact her family members/legal advisors to establish the status of the

immovable properties situated in Delhi, of which she did not have any

knowledge. It is further submitted that the defendant No.2 took steps to

apply for certified copies of the previous rounds of litigations between the

parties in various courts situated in Himachal Pradesh which took a

much longer time than was expected. As a result, the written statement

was finally drafted and filed on 16.11.2013.

6. Though a reply in opposition to the present Chamber Appeal has

been filed by the plaintiff, learned counsel fairly states that it would only

delay the proceedings further if the appeal is dismissed as the defendants

No.1 & 2 are bound to file an appeal which will derail the suit that has

been pending at the stage of completion of pleadings for the last three

years. He however adds that having regard to the casual manner in

which the defendants have been defending the suit and keeping in mind

the delay of 227 days beyond the prescribed period of 30 days permitted

in law for filing the written statement, they may be mulcted with costs, to

compensate the plaintiff for the inordinate delay in the suit proceedings.

7. Having regard to the submission made by the counsel for the

plaintiff and after taking into consideration the explanation offered by the

counsel for the defendants No. 1 & 2 in the present Chamber Appeal, it is

deemed appropriate to allow the same. The aforesaid order is also

passed in view of the fact that the defendant No.3 had remained

unrepresented despite service have been effected on her, on 9.10.2013

and the name of the defendant No.4 has been deleted from the array of

the defendants, by a separate order passed today in IA No.23051/2014.

The effect of disallowing the Chamber Appeal would have meant that the

plaintiff's suit for seeking partition of immovable properties, owned by the

predecessor-in-interest of the parties, Rajmata Devendra Kumari, would

have gone uncontested on merits, thus resulting in grave injustice to the

defendants No.1 & 2.

8. Accordingly, the present Chamber Appeal is allowed, subject to

payment of costs of `30,000/- by the defendants No.1 & 2 to the plaintiff

through counsel, within four weeks from today. The Chamber Appeal is

disposed of.

HIMA KOHLI, J

APRIL 07, 2015 mk