Delhi High Court
Subodh Singh vs Vijay Mahajan on 13 September, 2017
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 639/2017
SUBODH SINGH ..... Petitioner
Through: Mr. Sunil Chaudhary, Adv.
Versus
VIJAY MAHAJAN ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 13.09.2017
CM No.33528/2017 (of petitioner u/S 151 CPC for stay)
1. Notice of CM(M) 639/2017 was issued vide order dated 30 th May,
2017. Though the petitioner did not take any steps for service of the
respondent but the respondent appeared on the last date of hearing when the
matter could not be taken up owing to paucity of time.
2. This application has been filed for stay of proceedings in the Trial
Court.
3. Though the counsel for the respondent does not appear but prima
facie not finding any merit in CM(M) 639/2017 itself, it is deemed
appropriate to hear the counsel for the petitioner on the main petition itself.
4. The application is disposed of.
CM(M) 639/2017 & CM No.21425/2017 (for stay)
5. This petition under Article 227 of the Constitution of India impugns
the order [dated 19th May, 2017 in CS DJ No.621175/16 of the Court of
Additional District Judge (ADJ)-14 (Central), Tis Hazari Courts, Delhi]
closing the right of the petitioner/defendant to file the written statement.
6. The petition came up first before this Court on 30 th May, 2017 when
notice thereof was ordered to be issued, though no stay of procedings in the
suit, as sought, granted.
7. The counsel for the petitioner has been heard.
8. As per the impugned order dated 19th May, 2017, the
petitioner/defendant was on 11th January, 2017 served with the summons of
the suit for 20th February, 2017. The counsel for the petitioner/defendant did
not appear before the Suit Court on 20th February, 2017, when the counsel
for the respondent/plaintiff appeared and since the petitioner/defendant was
reported to have been served the matter was passed over awaiting the
petitioner/defendant. The counsel for the petitioner/defendant appeared
thereafter at 12.30 PM, and stated that a complete set of documents had not
been supplied alongwith the plaint and he will write to the
respondent/plaintiff to obtain the same. Directing that the same be furnished
to the counsel for the petitioner/defendant against proper receipt, written
statement was ordered to be filed as per law with replication to be filed
before the next date and the suit posted to 19th May, 2017.
9. No written statement was filed till 19th May, 2017 and a new counsel
appeared for the petitioner/defendant on that date and again stated that
complete paper book had not been supplied with the summons as also
informed on 20th February, 2017.
10. The learned ADJ in the order dated 19th May, 2017 has recorded that
as per record, summons were served on the petitioner/defendant on 11th
January, 2017 "alongwith the copy". The learned ADJ in the order dated
19th May, 2017 has further recorded that though the counsel for the
petitioner/defendant on 20th February, 2017 had stated that he will write a
letter to the respondent/plaintiff to obtain copies of documents but no such
step also had been taken. Finding that more than 120 days had elapsed from
the date of service, the right to file written statement was closed.
11. The counsel for the petitioner/defendant, before this Court, has not
disputed that the summons of the suit were served on 11 th January, 2017 and
as per record, "alongwith copy". He however states that the copy was not
complete.
12. Such grounds cannot be permitted to be taken, to give a go-by to the
amendment to the Code of Civil Procedure, 1908 (CPC) of the year 2002
limiting the time for filing the written statement. If complete paper book was
not received, considering the time limit stipulated for filing the written
statement, either immediately on receipt of summons alongwith a copy of the
plaint, a letter should have been written to the counsel for the
respondent/plaintiff to supply complete paper book or to supply the missing
pages, specifying the missing pages or the Court file should have been
inspected to make up the deficiency. Not only did the petitioner/defendant or
his counsel not do any such thing but did not also appear on 20 th February,
2017, for which date the summons were returnable, at the time when the suit
was first called and when the counsel for the respondent/plaintiff appeared; if
the petitioner/defendant had appeared then, the counsel for
respondent/plaintiff could have supplied the "missing pages" there and then.
It is only subsequently that the counsel for the petitioner/defendant appeared
and unilaterly stated that complete paper book had not been received and he
would write a letter. The direction of the Court to the counsel for the
respondent/plaintiff to supply copy of the complete paper book was
conditional on the petitioner/defendant/his counsel writing a letter and
without going into the aspect, whether the complete paper book had been
served or not.
13. The petitioner/defendant/his counsel did not even write to the counsel
for the respondent/plaintiff and proceeded on the premises that they would
walk into the Court on 19th May, 2017 and repeat the request and which
would be granted at their mere asking.
14. It is to curb such practises only that CPC was amended in 2002, which
amendment does not appear to have sunk in and the litigants and the
counsels continue to proceed under the impression that since the said
provisions of CPC have been held to be directory and not mandatory, they
can ignore the amendment.
15. Though the Court can, in appropriate cases extend time for filing the
written statement but not in every case and at the mere asking. The present
is a case falling in the latter category and there is no reason whatsoever to
allow the filing of the written statement.
16. I may notice that the written statement was not filed along with this
petition also and the counsel for the petitioner/defendant today also is not
carrying the same, though states that he will file it within 24 hours. The
same demonstrates a lackadaisical conduct/attitude and an attempt to
indefinitely delay the disposal of the suit.
17. If the Courts continue to grant indulgence and allow written
statements to be filed, howsoever belatedly, the amendment of year 2002 to
CPC in this regard would remain only on the statute books, defeating the
legislative intent. Only when the Courts send a clear unequivocal signal that
what is provided in Order VIII Rule 1 of the CPC will not be deviated from,
except for reasons beyond the control of litigants/counsels, would the
legislative intent be served. Until the Courts insist and demand perfection in
the conduct of trial, will such perfection be served by the counsels.
18. There is no merit in the petition.
19. Dismissed.
20. The date of 23rd February, 2018 is cancelled.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 13, 2017
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