Delhi High Court
Awdesh Chand Jauhari & Anr vs Sarika Jauhari & Anr on 15 September, 2017
$~32.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1015/2017, CM No.33652/2017 (for stay) and CM
No.33654/2017 (for condonation of 10 days delay in re-filing).
AWDESH CHAND JAUHARI & ANR ..... Petitioners
Through: Mr. S.P. Gairola, Adv.
versus
SARIKA JAUHARI & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 15.09.2017
CM No.33651/2017 (for exemption) and CM No.33653/2017 (exemption
from filing complete Trial Court record).
1. Allowed, subject to just exceptions.
2. The applications stand disposed of.
CM(M) No.1015/2017, CM No.33652/2017 (for stay) and CM
No.33654/2017 (for condonation of 10 days delay in re-filing).
3. This petition under Article 227 of the Constitution of India impugns
the orders (dated 11th July, 2016 and 13th April, 2017 in CS No.445/16 of the
Court of Additional District Judge - 03 (North-West), Rohini Courts, Delhi)
closing the right of the two petitioners to file written statement and
dismissing the application of the petitioners under Section 5 of the
Limitation Act, 1963 for condonation of delay in filing written statement.
4. The undisputed position is (i) that the petitioners / defendants no.1&2
were served with the summons of the suit on 9th June, 2016 for date of
hearing of 11th July, 2016; (ii) that the petitioners / defendants no.1&2
appeared before the Court on 11th July, 2016 but neither filed written
statement nor any application for extension of time for filing written
statement; resultantly opportunity to file written statement was closed; and,
(iii) the petitioners / defendants no.1&2, after another seven months, on 16th
February, 2017, filed written statement along with the application under
Section 5 of the Limitation Act, 1963 for condonation of delay in filing
written statement; the learned Additional District Judge has in the aforesaid
circumstances refused to condone the delay or take the written statement on
record.
5. The counsel for the petitioners / defendants no.1&2 contends that the
compromise talks were taking place between the petitioners / defendants
no.1&2 on the one hand and the respondent no.1 / plaintiff, who is the sister
of the petitioners, on the other hand.
6. Such grounds cannot be allowed to be taken to defeat the provisions
introduced in the Code of Civil Procedure, 1908 (CPC) by amendment of the
year 2002, with the intent to avoid delays, in disposal of suits, at the stage of
filing of written statement. Though the said provisions have been held to be
directory and not mandatory but even if they be directory, the same cannot
be a reason for ignoring the provisions on any excuse being given.
7. Nothing prevented the petitioners / defendants no.1&2 from, even if
compromise talks were underway, either applying to the Court for extension
of time for filing written statement or from filing the written statement
without prejudice to their rights and contentions in the negotiations, so that
in the event of negotiations not fructifying, the suit could proceed
expeditiously.
8. I have in the order dated 2nd August, 2017 in CM(M) No.813/2017
titled Leena Devi Vs. Sushil Aggarwal held that it is owing to the Courts
continuing to grant indulgence inspite of such amendments to CPC, that the
litigants and the members of the Bar have not given due weightage thereto
and continue to delay filing of the written statement in the hope that in the
name of "interest of justice" the same will be taken on record, whenever
filed. Time has come to change the said impression / perception which
seems to have gone around and to send a clear and strong message that the
said provisions, introduced in the CPC by amendment, have to be abided by.
Else, the legislative effort of expediting disposal of suits would go waste.
9. I may also notice that not only was there a delay on the part of the
petitioners / defendants no.1&2 in filing the written statement but there is
delay also in the order dated 11th July, 2016, challenge whereto has been
brought after more than one year. This petition, insofar as concerning the
challenge thereto, is liable to be dismissed for laches, acquiescence and
waiver. Even after being aggrieved from the order dated 13th April, 2017, the
petitioners / defendants did not show any hurry and have filed this petition
after nearly five months. From such conduct, it is clear that the endeavour of
the petitioners / defendants is to delay at each and every stage.
10. There is no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 15, 2017
„pp‟..
