Delhi High Court
Vishal @ Goldi vs Sanjay Kumar on 13 October, 2022
$~80 (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 530/2019 and CM 15644/2019 (stay)
VISHAL @ GOLDI ..... Petitioner
Through: Mr. Pradeep Sharma, Adv.
alongwith petitioner in person
versus
SANJAY KUMAR ..... Respondent
Through: Mr. Satyanarayan and Mr.
Arun, Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 13.10.2022
1. This petition under Article 227 of the Constitution of India
assails the order dated 18th March 2017, passed by the learned Civil
Judge in CS 61825/2016 (Sanjay Kumar v. Vishal @ Goldi), and
order dated 14th December 2018, whereby an application of the
petitioner seeking review of the order dated 18th March 2017 was
dismissed.
2. The order dated 18th March 2017 rejects an application filed by
the petitioner, as the defendant in CS 61825/2016 ("the suit",
hereinafter), for condonation of the delay in filing the written
statement in response to the suit instituted by the respondent.
3. As the order dated 18th March 2017 notes, summons, in the suit,
were served on the petitioner on 19th October 2016. The period of 30
days, within which, as per Order VIII Rule 1 of the Code of Civil
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Procedure, 1908 (CPC), written statement could be filed, would,
therefore, expire on or around 19th November 2016. The written
statement came to be filed on 3rd January 2017, approximately a
month and half after the expiry of the said period, but well within the
maximum condonable period of 90 days stipulated in that regard by
Order VIII Rule 1.
4. The application under Order VIII Rule 1 of the CPC, seeking
condonation of delay, also notes the fact that, from 26th December
2016 to 1st January 2017, Courts were closed.
5. The ground urged in the application seeking condonation of
delay in filing the written statement was that the maternal
grandmother of the petitioner was unwell, and that the petitioner had
to accompany his mother to his village in Punjab where his maternal
grandmother was staying. The application sought to urge that, owing
to the illness of the maternal grandmother of the petitioner, he could
not return in time to file the written statement.
6. The impugned order dated 18th March 2017 rejects the
contention, thus:
"A perusal of file reveals that the defendant was served on
19.10.2016 and the written statement has been filed by the
defendant only on 03.01.2017 i.e. after the period of about
3 months. The ground taken by way of the present
application is that he had gone to Amritsar as his maternal
grand mother was not well. A perusal of the present
application reveals that nowhere it has been mentioned as
to on which date the defendant went to Punjab, what was
the illness of his grand mother and when did he return
back from Punjab. Accordingly, I am of the considered
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opinion that no sufficient cause has been shown by the
defendant vide the present application to condone the
delay in filing the written statement. Hence, the present
application is dismissed."
7. The delay in filing the written statement cannot be said to be
inordinate. The suit was an ordinary suit, and not a commercial suit.
Applications for condonation of delay in filing pleadings, in non-
commercial suits, are required to be dealt with leniently, with a view
to ensure that the parties are not prejudiced in prosecuting their
respective cases. It goes without saying that, if the written statement
of the petitioner is not permitted to be taken on record, it would
amount to completely foreclosing the petitioner's right to defend
himself against CS 61825/2016 instituted by the respondent against
him. Adjudicating of any adversarial lis, without allowing full
opportunity to both sides to contest their respective stands, does
disservice to the cause of justice. While ensuring that any
lackadaisical or recalcitrant attitude is discouraged, the Court has to
bear in mind the fact that, at the end of justice, its duty is to subserve
the cause of justice.
8. The delay in question being only of around less than a month
and a half and given the ground taken by the petitioner for
condonation of delay, I am of the opinion that the learned Civil Judge
has been unduly harsh in rejecting the petitioner's application.
9. Mr. Satyanarayan, learned Counsel for the respondent sought to
contend that, against the order dated 18th March 2017, an earlier
petition under Article 227 of the Constitution of India had been
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preferred by the petitioner, which was dismissed for non-prosecution.
He also seeks to point out that, against the order dated 18 th March
2017, the petitioner had moved an application seeking review of the
said order, which came to be dismissed by the order dated 14 th
December 2018, which is also impugned in the present case.
10. As I am of the opinion that the order dated 18 th March 2017 is
itself unjustified, I do not deem it necessary to enter into these aspects
of the matter.
11. Accordingly, the impugned order dated 18th March 2017 is
quashed and set aside. The application of the petitioner under Order
VIII Rule 1 of the CPC, which was dismissed by the said order
accordingly stands allowed. The written statement filed by the
petitioner on 3rd January 2017 is directed to be taken on record in the
suit, which shall thereafter proceed in accordance with law.
12. The petition is accordingly allowed with no order as to costs.
Miscellaneous application is also disposed of.
13. The costs deposited by the petitioner are directed to be released
to the respondent along with any interest accrued thereon, on the
respondent approaching the Registry in that regard.
C. HARI SHANKAR, J
OCTOBER 13, 2022
rb
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Signing Date:14.10.2022
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