Delhi High Court
Baljeet Singh & Anr vs Sudesh Chhikara & Anr on 27 October, 2022
Neutral Citation Number : 2022/DHC/004529
$~9 (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 823/2019 &CM APPL. 27522/2022
BALJEET SINGH & ANR ..... Petitioners
Through: Mr. Vikas Yadav, Advocate
versus
SUDESH CHHIKARA & ANR ..... Respondents
Through: Mr. Jaipal Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 27.10.2022
1. This petition under Article 227 of the Constitution of India
assails the following order dated 27.11.2018 passed by the learned
Additional Senior Civil Judge ("the learned ASCJ') in Suit CS
455/2017 (Sudesh Chhikara vs. Baljeet Singh) to the extent the
impugned order allows the application of the respondent - plaintiff
under Order VIII Rule 1 of the Code of Civil Procedure, 1908
("CPC") and rejects the application of the petitioners - defendants
under Order VII Rule 11 CPC:
"27.11.2018
Through this common order, both the applications, one filed by
the defendants under Order 7 Rule 11 read with Section 151
CPC and another filed by the plaintiff no.l under Order 8 Rule 1
CPC shall be disposed off.
Present: Ld. Counsel for the plaintiff.
Arguments have already been heard.
It is contended by the defendants that the suit is without
any cause of action and the same is liable to be rejected, it is
also contended that there are no documents filed by the
plaintiffs in this case to support their pleadings and the same is
filed just to extract money from them.
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
17:50:20
Neutral Citation Number : 2022/DHC/004529
It is the contention of the plaintiffs and that the plot is
different from the suit property. It is also contended that the
plaintiffs are relying upon a Family Settlement and that the
husband of the plaintiff no.1 was the only son amongst six
daughters.
So far as the application under Order 8 Rule 1 CPC is
concerned, it is the plea taken by the plaintiff that the
defendants were duly served on 21.04.2017 but have filed the
written statement only on 04.08.2017 with a delay of more than
3 months. It is the plea of the defendants that they are old aged
persons and that the delay may be condoned.
Record perused.
This is a suit for declaration arid mandatory injunction
pending since April, 2017 wherein, issues are yet to be settled.
Admittedly, summons/notice issued to defendant no. 1 received
back refusal report on 21.04.2017 and the similarly, defendant
no.2 was also served on the very same day i.e. 21.04.2017.
Admittedly, written statement was filed by them only on
04.08.2017 and that too with a delay of 2 and half months.
Admittedly, no application for seeking condonation of delay
was filed by the defendants alongwith the written statement for
the reasons best known to them. It need not be mentioned that
at the time of disposal of the application under Order 7 Rule 11
CPC, only the averments of the plaint are to be seen. In these
circumstances, application filed by the defendant under Order 7
Rule 11 CPC is dismissed being devoid of merits and
application filed by the plaintiff under Order 8 Rule 1 CPC is
allowed. Consequently, the defence of the defendants is hereby
struck off.
Both the applications stand disposed off.
Be listed for Admission/Denial of documents and also for
framing of issues on 15.02.2019."
2. Insofar as the defendants' application under Order VII Rule 11
of the CPC is concerned, it is clear from a reading of the impugned
order dated 27th November 2018 that the learned ASCJ has rejected
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
17:50:20
Neutral Citation Number : 2022/DHC/004529
the application with no reason whatsoever. As such, the rejection, by
the learned ASCJ, of the petitioners' application under Order VII Rule
11 CPC is liable to be set aside, even on that score.
3. Adverting, now, to the respondents' application under Order
VIII Rule 1 CPC, the respondents had, by the said application, sought
striking off the written statement filed by the petitioner, as the
defendants in the suit, on 4th August 2017, from the record of the suit.
The impugned order allows the said application.
4. Learned counsel for the petitioners does not dispute the facts
stated in the impugned order regarding the receipt of summons in the
suit and filing of written statement. He acknowledges that summons
in the suit were received by his client on 21st April 2017 and that
written statement was filed by then only on 4th August 2017. He also
acknowledges the fact that the written statement was not accompanied
for any application of condonation of delay. He, however, submits
that as his clients were elderly people, the court, taking a sympathetic
view, allowed the written statement to be taken on record.
5. Mr. Jaipal Singh, learned counsel appearing for the respondent
- plaintiff, on the other hand, points out that the written statement was
taken on record on 4th August 2017 behind his back, after he had left
the court, for which purpose he has drawn the attention of the court to
the following order, penned by the Reader of the court on 4th August
2017:
"04.08.2017
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Digitally Signed
Signing Date:31.10.2022
17:50:20
Neutral Citation Number : 2022/DHC/004529
Ld. Presiding Officer has gone for judicial training at Delhi
Judicial Academy, Dwarka today.
Present: Counsel for plaintiff.
Defendant in person.
As per instructions of Ld. Presiding Officer, now to
come up for purpose already fixed on 27.09.2017.
(Reader)
04.08.2017
At 11:45 AM
At this stage, Counsel for defendant, a/w defendant
appeared and filed written statement on behalf of defendant and an
application u/o 7 rule 11 r/s. 151 CPC.
(Reader)
04.08.2017"
Analysis
6. The proviso to Order VIII Rule 1 CPC permits that the written
statement, which has not been filed within the period of 30 days
envisaged by the Order VIII Rule 1, to be taken filed on any other day,
within a maximum period of 90 days from the date of service of
summons, for reasons to be recorded in writing. Needless to say, the
noting dated 4th August 2017, of the Reader attached to the court to the
recording filing of the written statement, has no reasons. The
impugned order dated 27th November 2018, too, contains no reasons
for allowing the written statement be taken on record and,
consequently, allowing the respondents' application under Order VIII
Rule 1 of the CPC.
7. No doubt the impugned order records the petitioners' contention
that his clients were old and aged persons as well as his request that,
for that reason, the delay in filing the written statement should be
condoned. It does not proceed, however, to accept the said.
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
17:50:20
Neutral Citation Number : 2022/DHC/004529
8. It is acknowledged by learned counsel for the petitioner that the
written statement was filed beyond the maximum period of 90 days
envisaged by the order under Order VIII Rule 1 of the CPC though, in
view of the judgment of the Supreme Court in Rani Kusum v. Kusum
Devi1 and Kailash vs. Nanhku2, the said maximum period does not
constitute a mandatory outer limit.
9. Nonetheless, the learned ASCJ was required to provide reasons
for allowing the respondents' application under Order VIII Rule 1A
CPC. No such reasons are forthcoming in the impugned order.
10. As such, this Court is constrained to set aside the impugned
order. Both the applications i.e. the application of the petitioners under
Order VII Rule 11 of the CPC and the application of the respondents
under Order VIII Rule 1 CPC are restored. The learned ASCJ, who is
directed to consider the said applications de novo and, after hearing
both sides and following the principles of natural justice, decide the
said applications with a speaking and reasoned order.
11. The petition is allowed with no orders as to costs.
C.HARI SHANKAR, J.
OCTOBER 27, 2022
ns
(2005) 6 SCC 705
(2005) 4 SCC 480
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
17:50:20
