Delhi High Court
Aklesh Kumar Mishra vs Parmod Kumar Gupta & Anr. on 23 November, 2022
Neutral Citation Number : 2022/DHC/005119
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1276/2022 & CM APPL. 50453/2022, CM APPL.
50454/2022
AKLESH KUMAR MISHRA ..... Petitioner
Through: Mr. Raj Kumar, Adv.
versus
PARMOD KUMAR GUPTA & ANR. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT(ORAL)
% 23.11.2022
1. This petition under Article 227 of the Constitution of India
assails the orders dated 8th June 2022 and 5th November 2022, passed
by the learned Civil Judge in CS 299/2021 (Parmod Kumar Gupta v.
Akhilesh Mishra). The order dated 8th June 2022 closed the right of
the petitioner, as the defendant in the suit, to file written statement and
struck off his defence. An application, by the petitioner, seeking
recall of the order was dismissed by the learned Civil Judge, vide the
second impugned order dated 5th November 2022.
2. Ordinarily, this Court is inclined to be lenient in the matter of
filing of written statement and the time provided in that regard by the
CPC. However, if the prayer of the petitioner, in this case, were to be
granted, it would amount to this Court consigning, altogether to
oblivion, the provisions of Order VIII Rule 1 of the CPC.
3. The written statement, under Order VIII Rule 1 of the CPC, is
Signature Not Verified
By:KAMLA RAWAT
Signing Date:25.11.2022
12:18:48
Neutral Citation Number : 2022/DHC/005119
required to be filed within 30 days of receipt of summons. For good
cause, the said period is extendable upto 90 days. In its judgment in
Kailash v. Nanhku1 and Rani Kusum v. Kanchan Devi2, the Supreme
Court has held that the period of 90 days is also not an outer
maximum limit and that on sufficient cause being shown, the written
statement could be taken on record even beyond the period of 90 days.
4. That said, however, it would be for the defendant to show
sufficient cause.
5. In the present case, the summons of the suit were served on the
petitioner - defendant on 22nd February 2022. The maximum period
of 90 days envisaged by Order VIII Rule 1 of the CPC, therefore,
expired on or around 21st May 2022. The order striking of the defence
of the petitioner was passed on 8th June 2022, noting that no written
statement had been filed till that date.
6. Prima facie, no exception can be taken to the said order.
7. As already noted, the petitioner filed an application seeking a
review/recall of the said order. In the said application, it stands
acknowledged that, on 23rd February 2022, the defendant appeared
before the Court, in response to the summons served on him on 22 nd
February 2022. Though Mr. Raj Kumar, learned Counsel for the
petitioner sought to contend that the petitioner was unschooled in law,
the application filed by the petitioner under Section 151 of the CPC
acknowledges that, on 23rd February 2022, the petitioner was
accompanied by learned Counsel. Ignorance of law cannot be pressed
(2005) 4 SCC 480
(2005) 6 SCC 705
Signature Not Verified
By:KAMLA RAWAT
Signing Date:25.11.2022
12:18:48
Neutral Citation Number : 2022/DHC/005119
into service by the petitioner.
8. The application further urges, somewhat surprisingly, that
learned Counsel who accompanied the petitioner on 23 rd February
2022 did not inform the petitioner that there was a period of limitation
within which the written statement was required to be filed.
9. It is on this ground that the application, which was filed as late
as on 7th July 2022, sought that the written statement be taken on
record.
10. The learned Civil Judge has rightly rejected the application.
11. Though Mr. Raj Kumar, learned Counsel for the petitioner
vehemently pleaded that the petitioner's written statement be
permitted to be taken on record subject to nominal costs, this Court
regrets that it is unable to accommodate the request. This Court has to
remain conscious of the fact that any order passed by it is likely to be
cited as a precedent in a future case. The present case is one in which
as much as five months' delay is being sought to be explained away
on the sole ground that the petitioner was unschooled in the law and
that the advocate, who accompanied him, did not apprise him of the
legal position.
12. If such an explanation could suffice as justification to take , on
record, written statement on filed much beyond even the maximum
period of 90 days envisaged by Order VIII Rule 1 of the CPC, it
would render the period of limitation prescribed by the said provision
completely otoise. An extremely unsavoury precedent would,
Signature Not Verified
By:KAMLA RAWAT
Signing Date:25.11.2022
12:18:48
Neutral Citation Number : 2022/DHC/005119
thereby, be set.
13. In that view of the matter, the Court regrets that it cannot
accommodate the petitioner's request. There is no illegality or
infirmity in the impugned orders as calls for supervisory interference
by this Court under Article 227 of the Constitution of India.
14. The petition is accordingly dismissed in limine. Miscellaneous
applications also stand disposed of.
C.HARI SHANKAR, J
NOVEMBER 23, 2022
rb
Signature Not Verified
By:KAMLA RAWAT
Signing Date:25.11.2022
12:18:48
