Delhi High Court
Union Of India & Ors. vs Shanti Gurung & Ors. on 5 March, 2014
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order Reserved on: 5 th February, 2014
Order Pronounced on: 5 th March, 2014
+ OA 146/2013 in CS(OS) 610/2012
U NION O F INDIA & ORS . ..... P LA IN TIFFS
Through: Mr. A. S. Chandioke,
Senior Advocate with Ms.
Yamini Khurana , Advocate
versus
S HANTI GURUNG & ORS . ..... D EFENDAN TS
Through: Mr. Mohit Choudhary with
Ms. Jayshree Satpute, Ms.
Damini Chawla and Ms.
Pragya Singh, Advocates
for Defendant No. 1
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJEEV SACHDEVA, J.
OA No.146/2013
1. The Plaintiffs have filed the Chamber Appeal impugning the order dated 06.09.2013 of the Joint Registrar. The Joint Registrar by the order of 06.09.2013 allowed the application of the Defendant ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 1 of 18 No. 1 for condonation of delay of 129 days in filing the Written Statement. The Joint Registrar by the impugned order has held that though the Defendant could have filed the Written Statement within reasonable time after service but consumption of some time in communication overseas cannot be ruled out. He has further held that the Defendant No. 1 cannot claim that the entire delay has been occasioned on account of loss in transaction or for want of instructions/details and as such, some amount of neglect is attributable to the Defendant. He has, however, held that in the larger interest, considering the nature of lis, the stakes involved and the stage of proceedings, the prejudice caused to the Plaintiff could be compensated in terms of the costs. The delay has accordingly been condoned and the Written Statement has been directed to be taken on record. The Plaintiffs have impugned the condonation of delay and taking on record of the Written Statement.
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2. The contention of the Plaintiff is that the facts of the present case are so glaring that even if the provisions of Order 8 rule 1 of the Code of Civil Procedure were to be liberally construed, the Defendant No. 1 is not entitled to condonation of delay in filing the Written Statement and for exercise of discretion in her favour. As per the Plaintiffs the Written Statement filed is defective and is no Written Statement in the eyes of law and the application seeking condonation of delay cannot be construed as an application filed by or on behalf of the said Defendant.
3. The Plaintiff filed the present suit for declaration and injunction against three Defendants. For the purposes of condonation of delay, the merits of the case of the Plaintiffs is not germane, what is relevant is the service of the summons and the filing of the Written Statement and the purported application seeking condonation of delay by the Defendant No. 1.
4. Summons in the suit were directed to be issued on ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 3 of 18 14.03.2012. On 03.05.2012, an advocate entered appearance on behalf of the Defendant No. 1 and sought time to file the Written Statement. The Court permitted the Written Statement to be filed within six weeks. The matter thereafter was listed on 22.05.2012, 18.07.2012, 30.07.2012, 07.08.2012 and 27.08.2012, when the advocate for the Defendant No. 1 appeared. However, no Written Statement was filed. On failure of the Defendant No. 1 to file the Written Statement, the Plaintiffs on 08.08.2012, filed IA No.15833/2012 (under Order VIII Rule 10 CPC). As the advocate for the Plaintiffs could not trace out the said application, a fresh application being IA 16905/2012 (under Order VIII Rule 10 CPC) was filed on 05.09.2012.
5. Consequent to the filing of the application under Order VIII Rule 10 by the Plaintiffs, an application being IA 20039/2012 (under Order VII Rules 10 & 11) was filed on behalf of the Defendant No. 1. An application ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 4 of 18 being IA 20042/2012 (under Order XXXIX Rule 4) dated 30.10.2012 on behalf of the Defendant No. 1 was also filed on 31.10.2012. The Written Statement dated 30.10.2012 was filed on 31.10.2012. Since the Written Statement was beyond time, an application being IA 8937/2013 dated 11.04.2013 was filed on behalf of the Defendant No. 1 seeking condonation of delay of 129 days in filing the Written Statement. The Plaintiffs objected to the condonation of delay.
6. The Joint Registrar by the impugned order noticed that the Defendant No. 1 had sought condonation of delay in filing the Written Statement on the ground that the Defendant No. 1 was currently residing in New York and it required substantive time for getting details/instruction s and, in view of the fact that the Written Statement and affidavit sent to her advocate from US A were lost in transaction. She had to get another affidavit signed and attested for filing the Written Statement.
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7. Counsel for the Plaintiffs contended before the Joint Registrar that the application seeking condonation of delay was filed after 300 days. As per the plaintiffs the date on which the application seeking condonation of delay was filed would be the date on which the Written Statement would be deemed to be filed and thus the delay would not be 129 days but around 300 days. It was further contended that no document had been filed to substantiate that the Written Statement was ever sought to be filed earlier and was lost in post. The Joint Registrar, as noticed above, though attributing some neglect to the Defendant No. 1, has condoned the delay.
8. Learned senior Counsel for the Plaintiff has, in addition to the above facts, submitted that the Written Statement filed by the Defendant No. 1 is defective and is not a Written Statement in the eyes of law. He has further contended that even the application seeking condonation of delay cannot be treated as an ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 6 of 18 application filed either by or on behalf of the Defendant No. 1 as the same is neithe r signed by the Defendant No. 1 nor supported by an affidavit of the Defendant No. 1. He has further contended that the reasons for the delay pleaded on behalf of the Defendant No. 1 in the said application by the executant of the application are hearsay and cannot be taken as ground s sufficient for condoning the delay.
9. The Written Statement was neither filed within the stipulated period nor within the time permitted by the Court vide order dated 03.05.2012 i.e. within six weeks.
10. Perusal of the Written Statement filed on behalf of the Defendant No. 1 shows that the Written Statement is neither signed by the Defendant No. 1 n or on behalf of the Defendant No. 1 by any authorised person. The said place for signature of the Defendant is blank. The Written Statement is signed only by the advocate for the Defendant No. 1 and by hand it mentions the place ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 7 of 18 and the date as "New Delhi dated 30.10.2012 ". Admittedly, the Defendant No. 1 was not in New Delhi on 30.10.2012. The Written Statement also does not contain any verification.
11. The affidavit in support of the Written Statement is dated 30.09.2013 (i.e. one month before the date of the signing of the Written Statement) . The affidavit states that the present Written Statement has been drafted by the advocate of the Defendant No. 1 under her instructions and the contents of the same are true and correct to the "best of her knowledge and belief". Paragraphs D & E of the affidavit refer to "present application". The affidavit do es not mention which part of the Written Statement is true to the knowledge of the deponent and which part of the Written Statement is based on information received and believed to be correct. The date mentioned on the Written Statement by hand is 30.10.2012 at New Delhi and the affidavit is verified at Woodside, New York on 30.09.2012. This ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 8 of 18 shows that the affidavit was executed prior to the Written Statement. The Written Statement dated 30.10.2012 was filed in the Registry on 31.10.2012. Copy of the Written Statement was delivered to the Plaintiffs on 30.10.2012. So, it is apparent that the Written Statement which is dated 30.10.2012 and is signed only by the advocate at New Delhi was not sent to the Defendant No. 1 for signatures or verification. The affidavit which bears the stamp of a notary public does not bear any endorsement that any oath is administered to the deponent and any affirmation is made by the Deponent. The affidavit also does not bear any date when the notary public had signed it, though, it may be presumed that the date which is written on the affidavit i.e. 30.09.2012 is the date on which the affidavit is signed by the deponent and attested by the notary public.
12. Now coming to the application seeking condonation of delay. i.e. I.A. 8937/2013 and I.A. 20039/2012 (under ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 9 of 18 Order VII Rules 10 & 11 CPC) and I.A. 20042/2012 (under Order XXXIX Rule 4 CP C). The three applications are dated 30.10.2012 and the affidavits are dated 30.09.2012.
13. The application i.e. IA 8937/2013 (application seeking condonation of delay) has neither been signed by the Defendant No. 1 nor supported by an affidavit of the Defendant No. 1. The application is signed only by the advocate for the Defendant No. 1 and the place for signatures of the Defendant No. 1 is blank. Personal affidavit of the advocate for the Defendant No. 1 has been filed in support of the application. In the verification of the affidavit, it is mentioned that the application is verified at Woodsland, New York, e ven though the address of the deponent i.e. advocate for the Defendant No. 1 is shown as that of Delhi and the affidavit is attested by an Oath Commissioner at Delhi. The reasons for delay are stated as under:- "3. The Defendant No. 1 was granted 6
===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 10 of 18 weeks time to file W.S. on 3.5.2012. The Defendant No. 1 is currently residing in New York. Looking at several issued involved in the present suit, it took substantial time to get detailed instructions from the Defendant No. 1. for the W.S.
4. Also, the Defendant No. 1 has posted the duly signed and attested affidavit for W.S. to her counsel from U.S. which got lost in the post. She had to get another affidavit signed and attest for filing the present W.S."
14. The reason seeking condonation of delay stated in the application is that it took substantial time to get detailed instructions from the Defendant No. 1 for the Written Statement and that the Defendant No. 1 had posted the duly, signed and attested affidavit for Written Statement to her counsel from US which got lost in the post and, accordingly, she got another affidavit signed and attested for filing the Written ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 11 of 18 Statement.
15. The facts stated in the paragraphs 3 & 4 that the Defendant No. 1 is presently residing in the U.S. and that the affidavit was attested and posted from the U.S. by the Defendant No. 1 and that it got lost in the transit are the facts that can only be in the personal knowledge of the Defendant No. 1. The person who has signed the application and affirmed the affidavit in support of the application would not have personal knowledge of the se facts.
16. Furthermore, the affidavit does not indicate that the Written Statement which is filed in this Court was ever seen and signed by the Defendant No. 1. As per the application it is only the affidavit that is signed and sent from U.S. so admittedly no Written Statement has been signed and sent by the Defendant No. 1 from the U.S. along with the affidavit. The date and manner of posting of the affidavit, when it was lost and when the Defendant No. 1 came to know that it had been lost in ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 12 of 18 post, is not mentioned . These facts cannot be in the personal knowledge of the advocate for the Defendant No. 1, who has sig ned the application in Delhi and affirmed her personal affidavit.
17. A person can file an affidavit deposing to the facts which are in the personal knowledge of the deponent (S EE B HUPINDER S INGH V ERSUS S TATE OF H ARYANA :
AIR 1968 P & H 406). Normally, it is not proper for an advocate to file an affidavit on behalf of a party. However, an advocate can certain ly file an affidavit in a proceeding in respect of facts which are within the personal knowledge of the advocate. Application containing facts within the personal knowledge of the parties, should be signed and supported by the affidavits of the parties. The application seeking condonation of delay was neither signed by the Defendant No. 1 nor supported by an affidavit of the Defendant No. 1. If there were any facts or circumstances leading to the delay in filing of the ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 13 of 18 Written Statement, which were within the personal knowledge of the advocate, the advocate could have filed the application with a supporting affidavit. However, in the present case, the facts pleaded for condonation of delay are attributable to the Defendant No. 1 and within the personal knowledge of the Defendant No. 1. So the application seeking condonation of delay could not have been signed alone by the advocate without signatures of the Defendant No. 1 and could not have been supported by an affidavit only of the advocate for the Defendant No. 1. This application is no application in the eyes of law and, accordingly, the same could not have been taken cognizance of by the Joint Registrar.
18. The Written Statement filed on behalf of the Defendant No. 1 cannot be said to be a validly signed and executed Written Statement. The Written Statement is dated 30.10.2012. It is not signed by the Defendant and does not contain any verification. It is supported ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 14 of 18 by an affidavit of the Defendant No. 1 dated 30.09.2012, which was prior to the date of Written Statement. The affidavit in support of the Written Statement has to confirm the contents of the Written Statement. If the affidavit is executed and attested prior to the preparation of the Written Statement, the affidavit cannot be taken as an affidavit in support of the Written Statement.
19. The purpose of verification is to fix responsibility on the party or person verifying and to prevent false pleadings from being recklessly filed or false allegations being recklessly made (S TA TE OF P UN JAB VERSUS I.M. LALL: ILR 1975 D ELHI 332; S APNA S INGH P ATHANIA VERSUS J AGDISH C HANDER M EHTA (1998) 75 DLT 725).
20. Since the Written Statement filed on behalf of the Defendant No. 1 is without her signatures and any verification, it is clearly defective. However the defect of signatures and verification in pleadings is an ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 15 of 18 irregularity which can be remedied. It is not fatal but is a cureable defect. Non compliance of any procedural requirement relating to a pleading should not entail automatic dismissal or rejection unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice . Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. (M UKHTIAR K AUR VERSUS GHULAB K AUR AIR 1977 P & H 257; U DAY S HANKAR TRIYAR VERSUS R AM K ALEWAR P RASAD S INGH 2006 (1) SCC 75). Further the Division Bench of Bombay High Court in the case of A LL IND IA R EPOR TER LTD , B OMBAY V ERSUS R AMCHANDRA D HONDO D A TAR AIR 1961 B OM 292 has laid down that if defects in regard to the signature, verification or presentation of plaint are cured on a day subsequent to the date of filing the suit, the date of institution of the plaint is not changed to the subsequent date.
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21. The Written Statement filed on behalf of the Defendant No. 1 is defective and the application is no application in the eyes of law. Accordingly, the chamber appeal of the Plaintiff is allowed. The order dated 06.09.2013 of the Joint Registrar is set aside and the app lication seeking condonation of delay being IA 8937/2013 is dismissed as defective .
22. The ends of justice would be served in case an opportunity is granted to the Defendant No. 1 to cure the defects in the Written Statement and to file a proper Written Statement duly signed, verified and supported by her affidavit and further an opportunity is also granted to file a proper application seeking condonation of delay giving proper details, duly signed and supported by her affidavit.
23. The Defendant No. 1 is accordingly permitted to cure the defect in the Written Statement and to file a proper application seeking condon ation of delay within a period of 8 weeks. In case an application seeking ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 17 of 18 condonation of delay is filed the same shall be considered in accordance with law.
No Costs SANJEEV SACHDEVA, J March 5, 2014 st ===================================================================== OA 146/2013 in CS (OS) 610/2012 Page 18 of 18