Suresh Khanna vs Op Suri Memorial Education ...
2015 Latest Caselaw 89 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Pronounced on:8th January, 2015
+       CS(OS) 563/2014

        SURESH KHANNA                                              ..... Plaintiff
                    Through:                Mr. Bhupsh Narula, Advocate

                                versus

        OP SURI MEMORIAL EDUCATION SOCIETY           ....Defendant
                     Through: Mr. Uchit Bhandari, Advocate

        CORAM:
        HON'BLE MR. JUSTICE G.P. MITTAL

IA NO. 18727/2014 (O.VIII r/w. Section 151 CPC) in CS (OS) 563/2014

1.

By virtue of this application, the Defendant seeks extension of time for

filing the written statement. It is urged by the Defendant that the

Plaintiff had been awarded construction contract where-under the

Defendant had made a payment of Rs. 2,82,00,000/-. However, the

work awarded to the extent of Rs.20,80,800/- had not been completed

by the Plaintiff in terms of the contract and thus, the Plaintiff had been

paid a sum over Rs.51,00,000/- in excess of the amount actually

payable to him.

2. It is averred that as against the claim of Rs.1,54,41,500/- made by the

Plaintiff, in fact the Defendant was entitled to refund of Rs.51,91,959/-

It is urged by the Defendant that immediately on service of the

summons upon the Defendant, the Defendant assigned the case to its

lawyer who assured to represent the Defendant on the date of hearing

which was 11.07.2014. The original file of the case was also handed

over to the counsel.

3. It is averred that however, when the Defendant contacted its counsel,

it was informed that the counsel was not keeping good health and

therefore, adjournment shall be sought on 11.07.2014 to file the

written statement. It is the case of the Defendant that after attending

the date on 11.07.2014, the counsel informed that the next date of

hearing is 15.09.2014. Thereafter, the Defendant repeatedly tried to

contact the counsel and it was informed that the Defendant's counsel

was not keeping good health and ultimately on 08.09.2014, it was

informed that the counsel has been unfortunately diagnosed with

cancer and had to undergo a very lengthy treatment in Max Super

Speciality Hospital, Delhi. Hence, the files were taken back from the

counsel and that is why on 11.09.2014, the Defendant immediately

engaged a new counsel on that very day, who went through the file

and prepared the written statement which was finally filed on

16.09.2014. The Defendant/applicant therefore, seeks condonation of

delay of 95 days in filing the written statement.

4. The application is opposed by the Plaintiff by way of filing a written

reply. It is stated that the Defendant was served with the summons of

the suit on 12.03.2014. The Defendant was required to file the written

statement by 11.04.2014. However, the Defendant failed to file the

written statement even within the maximum period of 90 days

provided under Order VIII Rule 1 of the Code of Civil Procedure,

1908 (the CPC). The written statement was filed only on 15.09.2014 is

after a delay of about five months from the initial date of 11.04.2014

and after 95 days of the expiry of the period of 90 days. It is urged that

the story put forth by the Defendant is false and fabricated and a lame

excuse has been put by the Defendant seeking extension of time in

filing the written statement.

5. It is well settled that normally the time limit as granted under Order

VIII Rule 1 CPC has to be adhered to by the Defendant for filing the

written statement. However, at the same time it is no longer res

intergra that the time limit as stated in the rule is only directory and in

appropriate cases, the Defendant can be permitted to file the written

statement beyond the period of 30 days/90 days as the case may be.

The question for consideration is whether the Defendant has been able

to make out a case so as to grant it indulgence of extension of time.

6. The learned counsel for the Defendant/applicant has urged that the

earlier learned counsel for the Defendant (Ms. Ruchi Mahajan,

Advocate) who was initially engaged by the Defendant was

unfortunately diagnosed with cancer. The Defendant, therefore, had to

engage another counsel immediately upon coming to know of this fact

on 11.09.2014 and the written statement was filed within a period of

four days of the knowledge that the original counsel has not been able

to do the needful because of serious ailment.

7. The learned counsel for the Plaintiff has referred to the order dated

11.07.2014 passed by the learned Joint Registrar to urge that on

11.07.2014, it was not disclosed that the counsel was suffering from

any ailment and thus, the story of the counsel's sickness is unfounded.

Moreover, it is urged that the counsel's diagnoses to the effect that she

was suffering from cancer came to be known only on 02.09.2014. By

that time, the period of 30 days and even the period of 90 days to file

the written statement was over. The learned counsel for the Plaintiff

has relied upon Jai Gopal Goyal & Anr. v. Bishen Dayal Goyal,

(2007) 5 AD Delhi 690 and Mr. Vijay Gopal Jindal v. Shree

Infrastructure Finance Pvt. Ltd. & Ors., CS(OS) No.1575/2008 to

contend that the applicant is not entitled to extension of time.

8. In Jai Gopal Goyal (supra), it was held that although an innocent

litigant must not be allowed to suffer due to fault of his counsel, at the

same time, the negligent litigant should not be permitted to take

shelter under so called fault of the Advocate.

9. Similarly, in Vijay Gopal Jindal (supra), the learned Single Judge

found that the Defendant's plea of misplacing the file by the counsel

for the Defendant due to shifting of office was not established and it

was further queried as to why the written statement was not filed

between November, 2008 till 21.01.2009 when the file had been

traced.

10. In my view, the instant case cannot be compared with Jai Gopal

Goyal and Vijay Gopal Jindal. It is not in dispute that the Defendant

had engaged Ms. Ruchi Mahajan, Advocate. The order dated

21.04.2014 shows that service report was not on record. When the

matter came up before the Joint Registrar on 11.07.2014, it was

noticed that the Defendant was served on 12.03.2014. The counsel for

the Defendant (Ms. Ruchi Mahajan, Advocate) sought time to file the

written statement when it was informed that the period of 90 days had

already expired.

11. It is true that in the order dated 11.07.2014, the ground for seeking

adjournment, that is, illness of the counsel is not mentioned, yet the

illness of the counsel stands established as as per the investigation

report dated 03.09.2014 (the MRI was done on 02.09.2014), there was

strong suspicion of cancerous growth in the right breast of the counsel

which was established by order dated 11.09.2014. It can, therefore, be

presumed that the Defendant's erstwhile counsel was suffering from

the disease much earlier than 02.09.2014 when she got contrast MRI

conducted for the affected area. The fact that this disease or the cause

for adjournment was not disclosed at the time of passing the order by

the Joint Registrar on 11.07.2014 will not be very material. In any

case, in view of the documentary evidence placed on record, it cannot

be said that the illness of the counsel was a make believe story,

12. In view of this, this court condones the delay in filing the written

statement.

13. The application is accordingly allowed.

CS(OS) 563/2014

14. The written statement filed by the Defendant is ordered to be taken on

record. Let replication to the written statement be filed by the Plaintiff

within four weeks.

15. List before the Joint Registrar for completion of pleadings and

admission/denial of the documents on 02.03.2015.

(G.P. MITTAL) JUDGE JANUARY08, 2015 vk