Delhi District Court
Suit No. 114/ vs In His Application on 31 July, 2013
Suit No. 114/11.
Vijay
Vs Rohtash
31.07.2013.
Present: None.
This application is being filed by the defendant u/o VIII rule 1
CPC r.w.s. 151 CPC for the grant of leave to file written statement belatedly.
The relevant facts for the disposal of the present application are as
under:
The summons of the suit were directed upon the defendant on
22.09.2011 and the next date of hearing was fixed for 25.11.11. On 25.11.11,
defendant had appeared, filed his vakalatnama and sought time to file written
statement. Accordingly, case was adjourned for filing of written statement,
however, the same (written statement) had to be filed within 30 days and the
next date of hearing, however, was fixed for 08.02.2012. On the said date when
the defendant had appeared it was stated by his counsel that written statement
was not ready and further one week's time was sought. My ld. predecessor
declined this request and opportunity to file written statement was closed. It is
pertinent to note that it was stated that no cogent reasons were assigned and no
Suit No. 114/11. 1/ 6
Vijay v. Rohtash.
exceptional circumstances have been shown. Matter was posted for PE. The
present application was filed on 13.07.2012 by the defendant i.e. on the next
date of hearing. It would also be apposite to note that in the case in hand plaint
was received on 28.02.2011. The matter continued for misc. purposes as
plaintiff had moved an application for suing as an indigent person. Ultimately,
on 25.05.11, my ld. predecessor was pleased to observe that the plaintiff does
not come within the definition of indigent person and court fees was called
which was submitted by the plaintiff and on 22.09.2011 summons were directed
for 25.11.2011. Thus, that is the factual history of the background facts.
In his application, it has been asserted that summons were served
for 25.11.2011 and were issued on 16.11.2011. The written statement could not
be filed within 30 days as the ld. counsel for the defendant was busy in the
elections of the Bar counsel which were held on 25.01.2012 and later on
01.02.2012 in Tis Hazari Courts as the cousin brother of the counsel for the
defendant Sh. R N Vats was contesting the elections and he was associated with
him.
On the contrary, ld. counsel for the plaintiff has filed reply and
argued on the application and urged that the delay in filing of the written
statement is beyond the stipulated period of 30 days and no cogent reasons have
Suit No. 114/11. 2/ 6
Vijay v. Rohtash.
been explained and therefore, the present application should not be allowed.
Heard either side.
It is important to note here that Order VIII Rule 1 CPC states that
the defendant shall file the written statement within 30 days from the date of
service of summons and if he fails to do so then according to the proviso he
shall file the same on any such date as may be specified by the court for the
reasons specified in writing but should not be filed later than 90 days from the
date of service of summons. Hon'ble Supreme Court in Salem Advocate Bar
Association, Tamil Nadu v. Union of India cited in 2005 (6) SCC 344 stated
that the word 'shall' used in Order VIII rule 1 CPC is ordinarily mandatory
nature of the provision of having regard to the context in which it is used the
same is to be given a directory construction.
In construing the provision of Order VIII rule 1 CPC support can
also be drawn from Order VIII rule 10 CPC which categorically provides that if
the written statement is not filed within 30 days/ stipulated period/ time fixed by
the court, the court in its discretion can either pronounce judgment or can pass
any other order which it deems fit.
The expression 'pass any other order which it deems fit' is to be
Suit No. 114/11. 3/ 6
Vijay v. Rohtash.
given a very wide amplitude meaning thereby that the court can also grant a
further extension of the time period to the defendant to file the written statement
if exceptional circumstances are shown by him for the delay in filing of written
statement.
Having said so, it is further important to note that extension of
time for filing of written statement should not be granted in a routine manner
but can be granted only in exceptional cases.
Perusal of the record reveals that summons were issued to the
defendant on 16.11.2011 and he was directed to appear before the court on
25.11.2011 on which date he submitted that he shall file the written statement
within 30 days. Now, the time of 30 days from 25.11.2011 expired on
25.12.2011. Written statement was filed on 21.02.2012 thus, the written
statement came to be filed on 21.02.2012 i.e. within 88 days from the receipt of
summons by the defendant. The explanation offered by the ld. counsel for the
defendant was that he was busy with the elections of Bar as his brother was
contesting the elections appears to be plausible and can not be termed as a
malafide one. Obviously, the defendant had on the next date of hearing itself
informed to the court about the need of an adjournment and also on account of
the fact that elections were just contemporaneous thereto he could not prepare
Suit No. 114/11. 4/ 6
Vijay v. Rohtash.
the written statement. It is also to be noted that the order which was passed for
closing the opportunity to file written statement and defence was not struck off.
These two terms have to be given a different meaning on account of the fact that
once the defence is struck off which obviously is a penal provision and which
may also warrant a judgment u/o VIII rule 10 CPC necessarily should be
preceded by an opportunity to show cause or the harsher or stricter order is only
passed when the circumstances so warrant that otherwise it would amount to
either abuse of process of the court or may cause injustice to the opposite party.
Even under order XV (a) of CPC or even under DRC Act in so far as section 15
(7) is concerned, the opportunity to show cause is inbuilt/ judicially recognized.
Necessarily, the order of closing the opportunity to file written statement has to
be construed as an order which can be set aside under the inherent powers/ by
showing circumstances which warrant exercise of said discretion. In the case in
hand, the suit had travelled for 78 months at the stage of inquiry itself and later
on the opportunity to file written statement was declined before the 90 days
period and only one week's time was sought for filing the written statement and
lastly, the W.S. is on record compels me to accept the contention of the
defendant and recall the order dated 08.02.2012.
Having regard to the facts and circumstances, the present
Suit No. 114/11. 5/ 6
Vijay v. Rohtash.
application is allowed and the written statement filed by the defendant is taken
on record subject to costs of Rs 1,000/ to be paid by the defendant to the
plaintiff. Application u/o VIII rule 1 CPC accordingly stands disposed off.
Pleadings of the parties are complete. Admission/ denial of documents
not pressed for. From the pleadings of the parties following issues are framed:
1.Whether the plaintiff is entitled to a decree of possession, as prayed for?
(OPP)
2. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? (OPP)
3. Whether the suit of the plaintiff is without any cause of action? (OPD)
4. Whether the plaintiff has no locus standi to file the present suit? (OPD)
5. Relief.
No other issue arises or is pressed for. Advance copy of the affidavit be supplied to the opposite party 10 days prior to the next date of hearing. List of witnesses be filed within 15 days from today. Put up for entire PE on 16.11.2013.
(SUMIT DASS) ACJcumARC (North West) Rohini Courts, Delhi/31.07.2013. Suit No. 114/11. 6/ 6 Vijay v. Rohtash.