Delhi High Court
Garima Goel vs Pankaj Jain on 22 January, 2018
$~ 53
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 22nd January, 2018
+ CM(M) 801/2016 & CM No. 30166/2016 (stay),
CM No. 30169/2016(delay)
GARIMA GOEL ..... Petitioner
Through: Mr. Anand K. Mishra with
Mr. Mani Karan Sharma,
Advocates.
versus
PANKAJ JAIN ..... Respondent
Through: Ms. Arti Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The proceedings from which the present petition arises, relate to
a civil suit (registered at that point of time as Suit No.97/2014),
instituted by the petitioner against the respondent seeking reliefs in the
nature of perpetual injunction and cancellation of sale deed dated
01.05.2006. The respondent herein had filed the written statement in
Febraury, 2007 in answer to the said suit. In the written statement he
had also come with a counter claim in exercise of the liberty granted
by the provision contained in Order VIII Rule 6A of the Code of Civil
Procedure, 1908 (CPC). For some inexplicable reasons, the counsel
then engaged by the petitioner chose not to file a reply to the counter-
claim while submitting a replication in answer to the written statement
submitted in reply to the plaint and instead presented an application
taking exception to the maintainability of the counter-claim, which
was noted in the proceedings dated 20.03.2007 by the Civil Judge.
2. The objection to the maintainability of the counter-claim stood
rejected by order dated 25.07.2007. Thereafter, neither the petitioner
nor his counsel, nor the presiding Judge, remembered the need for a
written statement to be submitted in answer to the conter-claim. The
case kept hanging fire on several dates on some procedural issue or the
other.
3. Eventually, in November, 2008, the respondent (the counter-
claimant) submitted an application under Order VI Rule 17 CPC
seeking liberty to amend the pleadings in the context of the counter-
claim. The said application remained pending for almost three years.
It was allowed on 14.09.2011.
4. After allowing the amendment of the counter-claim, the Civil
Judge by a short order also recorded on 14.09.2011, directed the case
to be listed for admission/denial of documents and for framing of
issues.
5. The case thereafter continued to linger. On 26.07.2012,
assumably on the instructions of the petitioner (then plaintiff of the
suit), his counsel made a statement which led to his suit for injuction
being dismissed as withdrawn. The Civil Judge noted that the
counter-claim of the respondent herein (then the defendant) had
survived. He also noted that the counter-claim had been amended by
order dated 03.10.2008. He listed the matter for 18.10.2012 for
admission/denial of documents on the counter-claim and also for
framing of issues.
6. The issues on the counter-claim were settled on 05.09.2013.
Curiously, the said order records the observation "pleadings are
complete". It appears that the Civil Judge took the plaint as originally
filed as the pleadings on behalf of the petitioner which, post the
withdrawal of the main suit and in the proceedings that were
continuing on the counter-claim - which would actually be in the
nature of a cross suit - was erroneous, in as much as the plaint could
not be treated as pleadings in answer to the counter-claim.
7. The subsequent proceedings resulted in some evidence being
led by the counter-claimant on which the right of the petitioner
(defendant in the counter-claim) came to be closed. The said orders
were subject matter of challenge before this Court in CM(M)
No.956/2015 but unsuccessfully. It is conceded that the Special Leave
Petition was preferred before the Supeme Court but with no success
qua the right of the petitioner (defendant in the counter-claim) for
cross-examination of the witness of the counter-claimant.
8. It is stated that upon change of the counsel, the neglect in filing
the written statement in answer to the counter-claim came to the fore.
The petitioner thereafter took steps primarily by filing an application
under Order VIII Rule 1 CPC which was declined by order dated
24.09.2015 which is impugned before this Court. The learned Civil
Judge, it is apparent from the impugned order, was not satisfied even
with the explanation for delay in the said move and, thus also declined
to condone the same, as was requested.
9. In view of the reasons set out in the application to such effect
(CM No. 30169/2016), delay is condoned and the application
disposed of.
10. Having regard to the chronology of events and the proceedings
noted above, there is no escape from the impression that there has
been utter neglect not only on the part of the counsel engaged by him
but also by the petitioner. At the same time, it cannot be ignored that
after amendment of the counter-claim, it was incumbent on the part of
the Civil Judge to have given a renewed opportunity to the petitioner
(the defendant in the counter-claim) to file his written statement in
answer to the said amended counter-claim. This is acknowledged
even by the Civil Judge in the impugned order.
11. As noted earlier, immediately after allowing the amendment,
the case arising out of the counter-claim was taken to the stage of
admission/denial of documents and for framing of issues. As also
noted earlier, the Civil Judge appears to have proceeded at that stage
under the wrong assumption that the pleadings had been completed.
Since written statement in answer to the counter-claim had not come
on record, the pleadings could not be treated as complete. The lapse
was also on the part of the trial court in that while allowing the
amendment of the counter-claim, the party on the other side was not
called upon to file any written statement in answer to the amended
counter-claim. It is well-settled that no party should suffer on account
of neglect by the Court.
12. In the above facts and circumstances, a case is made out for
opportunity to be given to the petitioner to file the written statement in
answer to the counter-claim. However, bearing in mind the neglect
and the consequent delay suffered by other side, such opportunity
cannot be without suitable conditions.
13. Thus, the petition is allowed. The impguend order is set aside.
The prayer in application under Order VIII Rule 1 CPC for filing the
written statement in answer to the counter-claim (amended) is granted
on costs of Rs.30,000/- (Rupees Thirty Thousand Only) which shall be
paid/tendered along with the written statement to be submitted before
the trial court within 30 days hereof.
14. Needless to add after the written statement has been filed, the
trial Judge will give an opportunity to the opposite party to file
pleadings in answer to the written statement submitted in response to
the counter-claim which, in the present state of facts would be in the
nature of replication. Further, after the pleadings are complete, the
trial Judge will hear the parties and reconsider the issues and then
proceed further in accordance with law.
15. The petition and the pending application (CM No.30166/2016)
stand disposed of in above terms.
16. Dasti under signatures of Court Master.
R.K.GAUBA, J.
JANUARY 22, 2018
srb
