Delhi High Court
Kirti vs Tata Power Delhi Distribution ... on 16 November, 2023
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 16.11.2023
+ FAO (COMM) 79/2023 & CM APPL. 15459/2023
KIRTI ..... Appellant
versus
TATA POWER DELHI DISTRIBUTION LIMITED ..... Respondent
Advocates who appeared in this case:
For the Petitioner: Mr. Vivek Kumar, Advocate
For the Respondent: Mr. Manish Srivastava, Mr. Moksh Arora and Mr.
Santosh Ramdurg, Advocates
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL. 15458/2023 (exemption)
Allowed, subject to all just exceptions.
CM APPL. 15460/2023 (condonation of delay) & CM APPL.
15461/2023 (condonation of delay)
For the reasons stated in the applications, the applications are
allowed.
The applications are disposed of.
FAO (COMM) 79/2023
Signature Not Verified
Digitally Signed
By:RASHIM KAPOOR
Signing Date:20.11.2023
16:51:59
1. Appellant impugns order dated 29.07.2022 whereby an
application filed by the appellant under Order 7 Rule 11 of the CPC
has been dismissed and simultaneously the defence of the appellant
has been struck off holding the written statement to be beyond time.
2. Learned trial court has dismissed the application under Order 7
Rule 11 of the CPC holding that there was no patent lacuna in the
plaint or anything contained in the plaint which may suggest that it is
without any cause of action against the defendant.
3. The concerned court also found that the written statement was
filed beyond the statutory period of 120 days and as such the defence
of the appellant was struck off.
4. The contention of learned counsel for the appellant with regard
to the application under Order 7 Rule 11 of the CPC is purely on the
merits of defence of the appellant. It is settled position of law that at
the time of consideration of an application under Order 7 Rule 11 of
the CPC, the defence or the plausible defence of the defendant is not
to be considered and the plaint as a whole has to be examined to
ascertain as to whether the plaint discloses a cause of action or not.
5. In the facts and circumstances of the case, it cannot be said that
the plaint does not disclose a cause of action and consequently, we
find no infirmity in the order of the trial court rejecting the application
under Order 7 Rule 11 CPC.
6. In view of the above, the appeal, in so far as, it impugns order
Signature Not Verified
Digitally Signed
By:RASHIM KAPOOR
Signing Date:20.11.2023
16:51:59
dated 29.07.2022 rejecting the application under Order 7 Rule 11 CPC
is concerned, does not have any merit.
7. With regard to the delay in filing the written statement, it is
noticed that on 25.09.20219 respondent/plaintiff had sought time to
file on record the original file of the concerned consumer number.
Subsequently on 31.01.2020, it was clarified by learned counsel that
the documents were already part of the record.
8. Learned counsel for the appellant contends that appellant was
prosecuting her application under Order 7 Rule 11 CPC and as such
there was some delay in filing the written statement.
9. Learned counsel for the respondent submits that in view of
expeditious disposal of the Suit, he has no objection in case the
written statement is taken on record subject to terms.
10. In view of the above, the written statement filed by the
appellant is taken on record subject to payment of cost of Rs.
20,000/-. The appeal is accordingly disposed of in the above terms.
The cost be paid on the next before the trial court.
SANJEEV SACHDEVA, J
MANOJ JAIN, J
NOVEMBER 16, 2023
'rs'
Signature Not Verified
Digitally Signed
By:RASHIM KAPOOR
Signing Date:20.11.2023
16:51:59
