Delhi District Court
Shri Brij Mohan Sehgal vs Mrs. Disha Gupta on 21 August, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQ)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCT No. 38/2020
Shri BRIJ MOHAN SEHGAL
S/o GIAN CHAND
E-8, KAMLA NAGAR
DELHI
.... APPELLANT
VERSUS
1. Mrs. DISHA GUPTA
W/o SANJAY GUPTA
R/o BU-135, PITAMPURA,
DELHI 110034
2. Mrs. RAJ KUMARI GUPTA
W/o LATE D.K. GUPTA
R/o 11/5A, SECOND FLOOR,
SHAKTI NAGAR, DELHI 110007
3. Shri ALOK GUPTA
S/o LATE D.K. GUPTA
R/o 11/5A, SECOND FLOOR,
SHAKTI NAGAR, DELHI 110007
.... RESPONDENTS
Date of filing : 20.02.2018
First date before this court : 17.03.2020
Arguments concluded on : 21.08.2021
Date of Decision : 21.08.2021
Appearance : Shri Vidur, counsel for appellant
Shri Satish Kumar, counsel for respondents
RCT No.38/2020
Brij Mohan Sehgal vs Disha Gupta & Ors. Page 1 of 14 pages
GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA
Date: 2021.08.21 12:24:07 +05'30'
JUDGMENT
1. Appellant tenant has brought this appeal under Section 38 of the Delhi Rent Control Act to assail orders dated 16.01.2020 and 25.02.2020 of the learned Additional Rent Controller, passed in the eviction proceedings. On service of notice, respondents entered appearance through counsel. I heard learned counsel for both sides and examined the trial court record.
2. Vide order dated 16.01.2020, impugned in the present appeal, the learned Additional Rent Controller held that since the written statement was filed by the present appellant beyond time prescribed by law and that too, without any application seeking condonation of delay, the written statement could not be taken on record, so the defence was struck off. Subsequently, the appellant filed an application under Order VIII Rule 1 CPC seeking condonation of delay in filing the written statement, which application was dismissed vide order dated 25.02.2020, impugned in the present appeal.
3. During final arguments, learned counsel for appellant contended that both impugned orders are liable to be set aside because the written statement was filed within statutory period of 90 days after service of summons. It was argued by learned counsel for appellant that on 16.01.2020, the learned trial court ought to have condoned delay in filing the written statement even on oral request and there was RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 2 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:23:46 +05'30' no need for the appellant to file a written application in that regard. In support of his contention, learned counsel for appellant placed reliance on a judgment of the Hon'ble Delhi High Court in the case of Dr. Sukhdev Singh Gambhir vs Shri Amrit Pal Singh And Ors., AIR 2003 Delhi 280. Additionally, learned counsel for appellant also referred to one of my earlier judgments on this aspect, rendered in the case of Smt. Vinod Gupta vs Mr. Sukhbir Saran Aggarwal, RCT No.178/18 decided on 03.09.2020. It was also argued by learned counsel for appellant that since on account of covid pandemic till date no evidence has been led, if the written statement is taken on record, no prejudice would be caused to the present respondent. Learned counsel for appellant explained that the written statement could not be filed within 30 days of service of notice of the eviction proceedings because negotiations were going on between the parties as the present respondents no. 2 and 3 had earlier entered into agreement to sell their respective share in the larger premises (of which the demised premises are a part) and had taken substantial amount of money from prospective buyers but later had to return the said money.
4. On the other hand, learned counsel for respondents argued that both impugned orders are only procedural orders and the same are not amenable to appellate scrutiny under Section 38 of the Delhi Rent Control Act because after 1988 amendment to Section 38 of the Act, an appeal is maintainable only on a question of law. It was also argued that so far as order dated 16.01.2020 is concerned, the appeal is time barred. Learned counsel for respondent argued that RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 3 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:23:15 +05'30' without a formal application seeking condonation of delay, discretion to enlarge time to file written statement cannot be extended by the court.
5. In rebuttal arguments, learned counsel for appellant submitted that the question of law involved in this appeal is as to whether delay in filing the written statement could be condoned on oral request or not. It was also argued that even the impugned order admits that on merits, the appellant has a good case to succeed.
6. At the very outset, it is clarified that the judgment of this court rendered in the case of Smt. Vinod (supra) referred to by learned counsel for appellant cannot operate as a binding judicial precedent. But the said judgment has been examined by me keeping in mind that consistency and uniformity of decision making must exist in the decisions of every court.
7. According to the trial court record, notice of the eviction proceedings was served on the present appellant and his co-respondent of those proceedings on 15.10.2019, but the appellant's co-respondent opted not to contest the eviction proceedings and has not been appearing before the trial court, while the appellant filed his written statement on 06.01.2020.
RCT No.38/2020Brij Mohan Sehgal vs Disha Gupta & Ors. Page 4 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:20:58 +05'30'
8. At this stage, it would be apposite to briefly traverse through the legal position as regards timeline to file written statement and consequences of delay or default in filing the same.
9. The provisions under Order VIII Rule 1 CPC stipulate right of the defendant to file written statement within 30 days of service of summons, but where the defendant fails to file written statement within the said period of 30 days, the written statement can be allowed to be filed on any such other day, as may be specified by the court for the reasons to be recorded in writing, but shall not be later than 90 days from the date of service of summons. As regards scope of filing the written statement after expiry of 90 days from the date of service of summons, the judicial pronouncements discussed hereafter lay down that the defendant coming with the delayed written statement after 90 days has to set up rare and exceptional circumstances explaining the delay. Order VIII Rule 1 CPC has to be read with Order VIII Rule 10 CPC which lays down that where any party from whom a written statement is required under Rule 1 fails to present the same within time permitted or fixed by the Court, the court shall pronounce judgment against him or make such order in relation to the suit as it think fit.
10. In the case of Salem Advocate Bar Association vs Union Of India, AIR 2003 SCC 189, it was held that the use of the word 'shall' in Order VIII Rule 1 CPC by itself does not conclusively establish that the provision is mandatory and not directory. It was held that although the use RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 5 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:20:36 +05'30' of the word 'shall' is ordinarily indicative of mandatory nature of the provision, but having regard to the context in which it is used or having regard to the intention of the legislature, the same can be construed as directory. Since Order VIII Rule 1 and 10 CPC being rules of procedure are meant to advance the cause of justice and not to defeat it, a construction of the rules which promotes justice and prevents miscarriage has to be preferred.
11. In the case of Kailash vs Nanhku & Ors, AIR 2005 SC 2441, the Hon'ble Supreme Court held thus :
" Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 6 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:20:14 +05'30' which is a basic element of justice cannot be permitted to be buried.
.....
Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him, he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.
....
The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non- compliance. The provision being in the domain of the Procedural Law, it has to be held directory RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 7 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:19:52 +05'30' and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away." (emphasis supplied)
12. In the case of Zolba vs Keshao And Ors, AIR 2008 SC 2099, the written statement was not filed within time prescribed by law under bonafide impression that the same has to be filed after disposal of an appeal pending in the District Court against injunction order, and also because records of the case were with the District Court lawyers who had filed that appeal. The Hon'ble Supreme Court held thus :
"8. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 of CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. Keeping this principle as laid down by this court in the case of Salem Advocate Bar Association (supra) in mind ....." (emphasis supplied) RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 8 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:19:32 +05'30'
13. In the case of Dr. Sukhdev Singh (supra), one of the factors taken into consideration by the Hon'ble Delhi High Court while condoning the delay in filing the written statement was thus :
"5. .... Even otherwise, the mandate under Section 89 effort ought to be made to settle the matter. Secondly, the defendant had already filed the written statement in the suit in District Court. Hence it could not be the situation that the defendant was delaying the case, but on account of the attempts at settlement written statement was not filed. .....
6. Reference may be made to the observations of the Supreme Court in Topline Shoes Ltd. vs. Corporation Bank, AIR 2002 SC 2487 wherein while dealing with the time limit prescribed for filing reply under Section 13(2)(a) of Consumer Protection Act 1986, the Court held as under :
"The intention to provide a time frame to file reply, is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision however, as framed, does not indicate that it is mandatory in nature, in case the extended time exceeds 15 days, no penal consequences are prescribed therefore. The period of extension of time "not exceeding 15 days" does not prescribe any kind of period of limitation. The provision appears to be directory in nature, which the consumer forums are ordinarily supposed to apply, in the proceedings before them. It cannot be said that in no event, whatsoever, the reply of the respondent could be taken on record beyond the period of 45 days. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of "desirability" in strong terms. But it falls short of creating of any RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 9 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:19:01 +05'30' kind of substantive right in favor of the complainant by reason of which the respondent may be debarred from placing his version in defense in any circumstances whatsoever. It is for the forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind principles of natural justice as well. The Forum may refuse to extent time beyond 15 days, in view of S. 13(1)(a) of the Act but exceeding the period of 15 days of extension, would not cause any fatal illegality in the other."
14. Thence, the legal position with regard to Order VIII Rule 1 CPC can be summarized as follows. Ordinarily, the time schedule prescribed by Order VIII Rule 1 has to be honoured and the defendant has to bring his written statement within 30 days from the date of service of summons. Where written statement is brought by the defendant after expiry of 30 days but within 90 days of service of summons, to admit or to reject the written statement is a matter of discretion of the court, which like any other discretion must be exercised judiciously. And where the written statement is brought by the defendant after expiry of 90 days from the service of summons, the written statement can be taken on record after condonation of delay only if the defendant succeeds in establishing rare and exceptional circumstances which were beyond his control and led to such delay in filing the written statement. Further, the provision under Order VIII Rule 1 CPC does not take away power of the court to enlarge time to file written statement in appropriate cases.
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15. As against the above legal matrix, the present case has to be examined. In his application under Order VIII Rule 1 CPC, the appellant stated that the present respondents no. 2 and 3 were already engaged in negotiations with the appellant pertaining to sale of their share in the larger property (of which the demised premises are a part) and the present respondents no. 2 and 3 had taken substantial money from prospective buyers which money was returned by them after four years, and further, another legal proceedings between the parties got settled before the Hon'ble High Court on 15.01.2020; and that led to delay in filing the written statement. Significantly, on behalf of the present respondents no reply to the said application under Order VIII Rule 1 CPC was filed denying that any settlement process was going on between the parties. Even during arguments before the learned trial court on 25.02.2020, the learned counsel for present respondents did not deny those settlement negotiations, though he submitted that the compromise pertained to another property which is not a subject matter of the present eviction petition. From submissions made before the learned trial court on 25.02.2020, it appears that the said compromise was pertaining to a portion adjacent to the demised premises and no partition by meets and bounds had taken place. That being so, contention of appellant that on account of those negotiations filing of written statement got delayed cannot be disbelieved. As mentioned above, the written statement having admittedly been filed within 90 days of service of notice of eviction proceedings, the court RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 11 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.08.21 12:18:17 +05'30' was not required to look for any rare or exceptional circumstances which led to the delay.
16. So far as the question of power of the court to enlarge time for filing the written statement in the absence of written application, the provision under Order VIII Rule 1 CPC being only a procedural safeguard in order to ensure that the defendant is not able to protract the proceedings, timelines has been prescribed but those timelines do not take away power of the court to enlarge time for filing written statement if reasonable explanation is advanced. Perusal of trial court record would reflect that on 11.11.2019 the learned trial court adjourned the matter to 16.01.2020 after recording that "summons" having been served on the respondent on 15.10.2019, time period of 30 days for filing the written statement had not expired. On 16.01.2020, the impugned order was passed holding that since the written statement was filed by the appellant on 06.01.2020, the same could not be taken on record. In other words, immediately after the first appearance and prior to the second date after service of notice of eviction proceedings, the written statement was filed. So, it cannot be said that the appellant was protracting the proceedings.
17. As mentioned above, it has to be kept in mind that the written statement already stood filed on 16.01.2020 when the matter was taken up by the learned trial court. In view of the wording of Order VIII Rule 10 CPC, the learned trial court could have either pronounced the judgment or could have passed such order in relation RCT No.38/2020 Brij Mohan Sehgal vs Disha Gupta & Ors. Page 12 of 14 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.08.21 12:17:51 +05'30' to the eviction proceedings as considered fit. In my view, it being a matter of exercise of discretion, keeping in mind that the written statement had already been filed, though beyond 30 days but within 90 days of service of summons, the order which learned trial court could also have made was to grant an opportunity to the present appellant to explain the delay in filing the written statement. For, it is the cardinal principle of justice that disputes should be decided on merits and not on defaults.
18. Further, according to the trial court record, after passing of the first impugned order dated 16.01.2021, the eviction proceedings were posted for recording evidence of the eviction petitioner, but till date, even tendering of the chief examination affidavit has not been done on account of multiple defaults in appearance of parties due to Covid pandemic and inability of the present respondent no.1 to produce original documents. In such circumstances, refusal of the court to take the written statement on record after condoning the delay would frustrate the ends of justice, and would therefore be improper exercise of the discretion vested in court.
19. Therefore, I am unable to uphold the impugned orders and the same are set aside. The appeal is allowed and consequently, the written statement of the appellant is taken on record.
RCT No.38/2020Brij Mohan Sehgal vs Disha Gupta & Ors. Page 13 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.08.21 12:17:32 +05'30'
20. Trial court record be sent back with a copy of this judgment and appeal file be consigned to records, leaving the parties bear their own costs.
Announced through video conferencing
due to Covid lockdown
this 21st day of August 2021
GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2021.08.21 12:17:02
+05'30'
(GIRISH KATHPALIA)
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQ)
RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI
RCT No.38/2020
Brij Mohan Sehgal vs Disha Gupta & Ors. Page 14 of 14 pages