Delhi High Court
Anil Kumar Goel vs Arun Kumar Goel on 2 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd August, 2017
+ CM(M) 812/2017
ANIL KUMAR GOEL ..... Petitioner
Through: Mr. Punit Jain, Adv.
Versus
ARUN KUMAR GOEL ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.27299/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM(M) 812/2017 & CM No.27300/2017 (for stay)
3. This petition under Article 227 of the Constitution of India impugns
the order dated 1st July, 2017 of the Court of District & Session Judge ,
Shahdara, Karkardooma Courts, Delhi as under:
"01.07.2017
Present: Plaintiff - by Sh. Devanshu Jain, Adv.
Defendant - by Sh. K.D. Singh, Adv. - seeks time.
Declined since WS not filed despite opportunities.
Put up for PE by 23.08.2017."
4. The order aforesaid does not disclose any reason whatsoever for
purportedly closing the right of the petitioner / defendant to file written
statement and in fact does not even close the right to file written statement
and does not strike off the defence of the petitioner / defendant and does not
give any reason in terms of Order VIII Rule 10 of the Code of Civil
Procedure, 1908 (CPC) as to why the suit was not being decreed
immediately or why the need for requiring the respondent / plaintiff to lead
CM(M) No.812/2017 Page 1 of 4
evidence was felt, as the order should in law. Reference in this regard may
be made to Balraj Taneja Vs. Sunil Madan (1999) 8 SCC 396, C.N.
Ramappa Gowda Vs. C.C. Chandregowda (Dead) by LRs (2012) 5 SCC
265 and Shantilal Gulabchand Mutha Vs. Tata Engineering and
Locomotive Company Ltd. (2013) 4 SCC 396.
5. What transpires from reading of the paper book is that i) summons of
the suit issued on 11th April, 2017 were served on the petitioner / defendant
on 19th April, 2017; ii) the petitioner / defendant appeared before the Court
on 18th May, 2017 through proxy advocate who filed vakalatnama and the
order of 18th May, 2017 is as under:
"18.05.2017
Present: Plaintiff - by Sh. R.K. Jain, Advocate
Defendant absent. By proxy Sh. Praveen Aggarwal - files V/n on
behalf of Sh. Puneet Jain. Extra Copy furnished by the Court.
Put up this matter for WS by 01.07.2017;"
iii) that the written statement was not filed and no application for
extension of time for filing written statement was also filed and which
resulted in the order dated 1st July, 2017 supra.
6. I may notice that the petitioner / defendant, even along with this
petition, has not filed any written statement.
7. The counsel for the petitioner / defendant states that one week‟s time
be given to file written statement, indicating that the written statement is still
not ready.
8. The counsel for the petitioner / defendant has argued i) that the period
of 30 days prescribed for filing the written statement is only directory; ii)
that the time of 90 days for filing the written statement had not expired and,
iii) that complete paper book was given to the petitioner / defendant only on
18th May, 2017. It is thus contended that one more opportunity be given.
CM(M) No.812/2017 Page 2 of 4
9. After this Court has indicated that I am not inclined to grant any such
indulgence, additional arguments are raised, i) that the documents are very
voluminous and written statement could not be prepared; and, ii) that talks of
settlement were going on.
10. All the said pleas taken now as an afterthought and without filing any
application for extension of time for filing written statement, cannot be
accepted at this stage.
11. This Court, in exercise of jurisdiction under Article 227 of the
Constitution of India, is to inquire, whether the order impugned is perverse
and in the facts aforesaid, the order cannot be said to be perverse. Moreover,
30 days time is sufficient to file written statement, howsoever voluminous
the documents may be. This is quite evident from the fact that the counsel
for the petitioner, being pressed to the wall, is now ready to prepare the
written statement within one week only. Similarly, the plea of complete
paper book having not been furnished is also not borne out from the order
dated 18th May, 2017. It cannot be lost sight of that Mr. Puneet Jain,
Advocate appearing today and who states that he is the advocate for the
petitioner / defendant in the suit also, did not even bother to appear on either
of the dates and on one of the dates sent proxy counsel Mr. Praveen
Aggarwal and on the next date sent another proxy counsel Mr. K.D. Singh,
only with the intent to seek adjournment.
12. The legislature, with the intent to eliminate the delays in disposal of
suits, at least at the stage of filing of the written statement, having provided
for the time period for filing thereof and the said law being 15 years old, the
advocates should have by now got used to filing of the written statement
within time. However, it appears that owing to the indulgence shown by the
CM(M) No.812/2017 Page 3 of 4
Courts, the practice of sending proxy counsels to seek adjournment without
drafting even an application, continues unabated and which results in
legislative intent being totally defeated. It is felt that unless the Courts start
enforcing the law, the purport of the amendment to Order VIII Rule 1 of the
CPC will not seep in and would remain only in the books, as is evident from
the conduct of the counsel for the petitioner / defendant in the subject suit.
13. In all cases, the latitude for filing written statement, even if there be
nothing placed before the Court to show as to why 30 days were not
sufficient, cannot be granted. The same would also be in breach of express
language of Order VIII Rule 1 of the CPC. As far back as in Prem Lata Vs.
Rajender Soni 126 (2006) DLT 168, relying on Kailash Vs. Nanhku (2005)
4 SCC 480 this Court held that extension of time, after 30 days should not be
granted in a routine manner, merely for asking. The contention of the
advocate for the petitioner that the time of 90 days is available as a matter of
right is clearly erroneous. In fact, without extension beyond 30 days being
sought and granted, the right to file written statement stood closed on expiry
of 30 days from service of summons.
14. No ground for interference with the impugned order is made out.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 02, 2017
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