Delhi District Court
Smt. Vinod Gupta vs Mr. Sukhbir Saran Aggarwal on 3 September, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQ)
RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI
RCT No. 178/2018
1. Smt. VINOD GUPTA
W/o LATE QIMAT RAI GUPTA
R/o 1, RAJ NARAIN MARG,
DELHI
2. Mr. SURJIT KUMAR GUPTA
S/o LATE SHRI VED PRAKASH GUPTA
R/o 78-A, NEW FRIENDS COLONY,
NEW DELHI.
.... APPELLANTS
vs
1. Mr. SUKHBIR SARAN AGGARWAL
S/o LATE HARI RAM AGGARWAL
R/o C-8/16, MODEL TOWN, DELHI 110009
2. Mr. SURINDER GUPTA
S/o LATE LAKSHMAN DASS GUPTA
SHOP No. 1826, GROUND FLOOR
BHAGIRATH PALACE, DELHI
.... RESPONDENTS
Date of filing : 20.02.2018
First date before this court : 04.06.2019
Arguments concluded on :24.08.2020
Date of Decision :03.09.2020
Appearance : Shri Rajesh Harnal, counsel for appellants
Shri S.D. Ansari, counsel for respondents
RCT No.178/2018
Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 1 of 13 pages
JUDGMENT
1. By way of this appeal brought under Section 38 of the Delhi Rent Control Act, the appellants tenants have assailed order dated 03.12.2018 of the learned Additional Rent Controller whereby application of the present respondent no.1 under Order VIII Rule 1 CPC was allowed and the defence brought on record by way of written statement of appellants was struck off, posting the matter for arguments on application under Order VII Rule 11 CPC. On notice of this appeal issued by my learned predecessor, only respondent no.1, the contesting respondent entered appearance through counsel and opposed the appeal.
2. I heard learned counsel for both sides through video conferencing on account of Covid-19 lockdown and examined the trial court record as well as written arguments filed on behalf of appellants.
3. Briefly stated, circumstances, leading to the present appeal are as follows.
3.1 By way of order dated 09.03.2015, the learned Additional Rent Controller ex parte allowed the eviction petition of the present respondent no.1 and in execution of the said ex parte eviction order, from the appellants possession of the tenanted premises was obtained by respondent no.1.
3.2 An application filed by the appellants under Order IX Rule 13 CPC was allowed by the learned Additional Rent Controller vide order dated 27.08.2015, observing that the order dated 15.12.2014 for substituted service of notice had been obtained by misleading the court, so all further proceedings were liable to be set aside. The learned Additional Rent Controller further observed that since the RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 2 of 13 pages eviction petitioner had intentionally misled the court for obtaining ex parte judgment and in obtaining possession of the tenanted premises, the eviction petitioner should not be granted any leniency to enjoy the tenanted premises. By way of the said order dated 27.08.2015, the learned Additional Rent Controller also directed the present appellants to file written statement.
3.3 Within 18 days of the said order dated 27.08.2015, the appellants filed an application under Order VII Rule 11 CPC for rejection of the eviction petition. 3.4 Thereafter, in the month of October 2015, the present respondent no. 1 challenged order dated 27.08.2015 of the learned Additional Rent Controller by way of an appeal before this Rent Control Tribunal and my learned predecessor summoned the trial court record.
3.5 Although the trial court record had been summoned by my learned predecessor, as a matter of abundant precaution, appellants filed written statement on 24.11.2015 despite pendency of their application under Order VII Rule 11 CPC. 3.6 On 30.08.2016, respondent no. 1 filed an application dated 27.08.2016 under Order VIII Rule 1 CPC, falsely stating that the written statement had not been filed till then. The trial court record being with this Rent Control Tribunal in appeal, the learned Additional Rent Controller kept the application under Order VIII Rule 1 CPC pending consideration.
3.7 On 03.11.2018, the appeal filed by the present respondent no.1 was dismissed by my learned predecessor, reaffirming that the present respondent no.1 had played fraud on the court. Thereafter, the trial court record was sent back to the learned Additional Rent Controller.
3.8 On 03.12.2018, taking up the application under Order VIII Rule 1 CPC for the first time, the learned Additional Rent Controller allowed the same and struck RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 3 of 13 pages off the defence of the appellant even without giving opportunity to the appellants to file reply to the said application.
4. Hence the present appeal.
5. During arguments, learned counsel for both sides took me through the above matrix with the help of trial court record.
5.1 Learned counsel for appellants argued that the impugned order striking off defence is liable to be set aside as the same was not passed in accordance with law. It was argued that since by the time the application under Order VIII Rule 1 CPC was filed, the written statement was already on record, so defence ought not to have been struck off. It was further argued that even notice of that application under Order VIII Rule 1 CPC was not issued to the appellants, thereby they were deprived of a fair opportunity of being heard. Learned counsel for appellants also argued that since the written statement was filed on 89th day of the order setting aside ex parte eviction order, the defence ought not to have been struck off. Learned counsel for appellants also argued that even the delay in filing the written statement was fully explainable in the sense that application of the appellants under Order VII Rule 11 CPC was already pending and the trial court record having summoned by the learned Additional Rent Controller, no prejudice was caused to respondent no.1 as regards trial of the eviction petition.
5.2 On the other hand, learned counsel for respondent no.1 contended that pendency of an application under Order VII Rule 11 CPC does not bar filing of the written statement and since admittedly the written statement was not filed within the statutory period of 30 days, the defence was rightly struck off. It was also argued by learned counsel for respondent no.1 that the appellants having filed the written RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 4 of 13 pages statement on 89th day of the directions to file the same, ought to have also filed an application for condonation of delay which was not done, so the defence was rightly struck off. It was further argued by learned counsel for respondent no.1 that even in this appeal, the appellants did not claim that they had sought delay condonation but were denied the same.
5.3 Both sides referred to certain judicial precedents in support of their respective cases. Learned counsel for appellant placed reliance on the judgments in the cases of Kailash vs Nanhku & Ors, AIR 2005 SC 2441; Salem Advocate Bar Association vs Union Of India, AIR 2003 SCC 189; Zolba vs Keshao And Ors, AIR 2008 SC 2099; Maharaji Educational Trust And vs Punjab & Sind Bank & Anr., in CS No. 1339/2005 order dated 12.01.2006; R.K. Roja vs U.S. Rayudu, AIR 2016 SC 3282; Laxmi Narayan Sharma vs Smt.Rajshree Khandelwal, 2017(1) WLN 229(Raj.); and Desh Raj vs Bal Kishan, AIR 2020 SC 621. Learned counsel for respondents placed reliance on the judgment of Hon'ble Supreme Court in the case of M/s S.C.G Contracts India Pvt. Ltd. vs A.S. Chamankar Infrastructure Pvt. Ltd., Civil Appeal No. 1638/2019 decided by the Hon'ble Supreme Court on 12.02.2019.
6. At this stage, it would be apposite to briefly traverse through the legal position as regards the timelines to file the written statement and striking off the defence in case of delay or default in filing the same.
6.1 The provision under Order VIII Rule 1 CPC stipulates a 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 such other day, as may be specified by the court for the reasons to be recorded in writing, but that shall not be later than RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 5 of 13 pages 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 lay down that the defendant coming with the written statement after 90 days has to set up rare and exceptional circumstances explaining the delay. Rule 1 of Order VIII CPC has to be read with Rule 10 of Order VIII 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 thinks fit. The scope of provisions under Order VIII Rules 1 & 10 CPC came up for consideration before the Hon'ble Supreme Court and the High Courts across the country in a plethora of disputes.
6.2 In the case of Salem Advocate Bar Association (supra), the Hon'ble Delhi High Court 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 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 legislation, the same can be construed as directory. Since Order VIII Rule 1&10 CPC, being the rules of procedure, are meant to advance the cause of justice and not to defeat it, a construction of these rules which promotes justice and prevents miscarriage has to be preferred. 6.3 In the case of Kailash (supra), the Hon'ble Supreme Court interpreted the provision under Order VIII CPC thus:
"27. 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 RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 6 of 13 pages 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 which is a basic element of justice cannot be permitted to be buried.
....
46. ....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 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) 6.4 In the case of Zolba (supra), the written statement was not filed within time prescribed by law under bona fide impression that written statement has to be filed after the disposal of appeal pending in the District Court against injunction order, and also because records of the case were with the District Court lawyer, 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 and in view of our observations made herein above, we now look into the averments made in the application for condoning the delay in filing the written RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 7 of 13 pages statement. In the application, it has been stated that on instruction of his counsel in the trial court, the written statement was not filed within the period of limitation as the appellant was under bona fide belief that the written statement shall be filed after the decision of the appeal by the District Court. The written statement was, however, filed and the records of the case were called from his lawyer who has been conducting his case in the appeal pending before the District Court. The facts disclose that the misc. appeal has been filed against an order of injunction before the District Court Chandrapur whereas the suit is pending before the Civil Judge, Junior Division, Nagbhid. Since the appeal was pending, the records of the appellant were then lying with the lawyer at Chandrapur. Therefore, the file was not available with the lawyer of the appellant at Nagbhid and therefore, the written statement could not be filed within the period of limitation. Such being the position, in our view, the facts stated would constitute sufficient cause for condoning the delay in filing the written statement and it has to be taken that the non-availability of records at Nagbhid had prevented the appellant from filing the written statement within the period of limitation which in our view was an exceptional case constituting sufficient cause for condoning the delay in filing the written statement....." (emphasis supplied)
7. In the present case, as mentioned above, admittedly, the written statement was not filed by the appellants within 30 days of order dated 27.08.2015, when ex parte eviction order was set aside and the appellants were directed to file written statement. But also admittedly, the written statement was filed within 90 days of the said order dated 27.08.2015. That being so, what has to be examined by this court is whether the appellants have been able to establish sufficient cause for not having filed by the written statement within 30 days of 27.08.2015. The appellants having filed the written statement within 90 days of 27.08.2015 do not have to set up rare and exceptional circumstances which led to the delay.
8. According to the appellants, written statement was not filed within 30 days because they preferred an application under Order VII Rule 11 CPC for RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 8 of 13 pages rejection of the eviction petition. The said application under Order VII Rule 11 CPC was admittedly filed within 18 days of order dated 27.08.2015, so it does not appear to have been filed simply to protract the proceedings. Appellants explained that within 18 days of setting aside of the ex parte eviction order, they filed an application under Order VII Rule 11 CPC, and claimed that during pendency of their application under Order VII Rule 11 CPC, they could not be compelled to file written statement, more so, when the application under Order VII Rule 11 CPC remained pending till the date of the impugned order.
9. It is no longer res integra that at any stage of the suit, the defendant can seek rejection of plaint under Order VII Rule 11 CPC, strictly confining himself to the plaint contents. In contrast, by way of written statement, the defendant gets an opportunity to challenge the truthfulness of the plaint contents and to plead his own factual matrix. That being so, where the case set up by the plaintiff, even if assumed to be through truthful pleadings, is not maintainable, no purpose would be served by compelling the defendant to plead his factual matrix through written statement. Therefore, failure to file written statement within 30 days of service of summons under bona fide impression that the written statement has to be filed after disposal of plaint rejection application cannot be trashed as a subterfuge explaining the delay, especially where the written statement is filed within 90 days of service of summons. Most importantly, even the application under Order VII Rule 11 CPC in the present case was filed well within the statutory period of 30 days.
10. In the case of R.K.Roja (supra), the Hon'ble Supreme Court specifically held that once an application is filed under Order VII Rule 11 CPC, the court has to dispose of the same before proceeding with the trial, and that the RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 9 of 13 pages defendant is entitled to file an application for rejection of plaint before filing his written statement; and that in case, the application under Order VII Rule 11 CPC is rejected, the defendant is entitled to file his written statement thereafter.
11. Coming to the argument of learned counsel for respondent no.1 that in the absence of an application for condonation of delay in filing the written statement, the delay could not be condoned, such argument was rejected as untenable in the case of Laxmi Narayan Sharma (supra) for the reason that proviso to Order VIII Rule 1 CPC gives ample power to the court to condone the delay and does not provide any requisite as to the moving of an application for delay condonation. The provision being directory, power of the court to condone delay in filing written statement cannot be restricted by any such hyper-technicality. Quite importantly, like in the case of Laxmi Narayan Sharma (supra), in the present case also when the learned Additional Rent Controller took the written statement of the appellants on record on 89th day after setting aside of the ex parte eviction order, there was not even a whisper of objection from respondent no.1, so the delay was impliedly condoned. That being so, the appellants ought to have been granted at least an opportunity to file reply to the application under Order VIII rule 1 CPC before striking off their defence.
12. Further, as mentioned above, the trial court record remained with this Rent Control Tribunal from October 2015 till November 2018, whereas the written statement was filed on 24.11.2015, so it certainly cannot be said that the present respondent no. 1 suffered any delay in disposal of his eviction petition on account of the written statement having not been filed within 30 days of order dated RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 10 of 13 pages 27.08.2015. That being so, the provision under Order VIII Rule 1 CPC ought not to have been invoked to strike off the defence.
13. As regards the judgment in the case of SCG Contracts (supra) relied upon by the counsel for respondent no.1, the law laid down in the said case applies only to the commercial suits on account of statutorily fixed strict timelines at all stages of the commercial suit. Besides, in the case of SCG Contracts (supra), the written statement was filed 120 days after the service of summons, whereas in the present case, the written statement was admittedly filed on 89th day of the date when the appellants were directed to file the same and that being so, in view of law discussed above, the defendant in the case of SCG Contracts (supra) was required to set up rare and exceptional circumstances, whereas the scrutiny in the present case could not be that strict, the written statement having been filed within the extendable period of 90 days under the proviso to Order VIII Rule 1 CPC.
14. In the case of Desh Raj (supra), the Hon'ble Supreme Court further examined the legal position and held thus:
"13. The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd., but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC.
14. As regard the timeline for filing of written statement in a non commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co. holds the field. Unamended Order VIII Rule 1 CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays".RCT No.178/2018
Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 11 of 13 pages
15. Submission of learned counsel for respondent no. 1 that in this appeal, the appellants did not submit that they had requested for delay condonation but were denied the same, is contrary to record. Ground (e) at page 17 of the memo of appeal specifically submits that neither any notice of application under Order VIII Rule 1 CPC was issued nor any opportunity was granted to the appellants to file reply and the oral contentions of the appellants including prayer for condonation of delay in filing the written statement were ignored and not recorded while passing the impugned order. Going a step deeper and assuming that no such prayer for delay condonation in filing the written statement was made on behalf of the appellants, the learned Additional Rent Controller ought not to have ignored the pendency of application under Order VII Rule 11 CPC and the fact that on account of trial court record having remained with the Rent Control Tribunal all that while for about 04 years, no prejudice was caused to the present respondent no. 1, so defence ought not to have been struck off. As mentioned in the judicial precedents cited above, the proviso to Order VIII Rule 1 CPC gives ample power to the court to condone the delay without there being a specific request also in that regard.
16. To summarize, the written statement was filed on 89th day of setting aside of the ex parte eviction order; on the day when the written statement was filed, trial court record was already in the Rent Control Tribunal in appeal; on the day when the written statement was filed application under Order VII Rule 11 CPC which had been filed within 18 days of setting aside of ex parte eviction order was pending; and at the time of filing of the written statement, there was no whisper of RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 12 of 13 pages objection from the side of respondent no. 1 and the written statement was taken on record. Therefore, in my considered view, it was not a fit case to strike off defence.
17. In view of above discussion, I am unable to uphold the impugned order, so the same is set aside. This appeal is allowed and defence of the appellants is restored.
18. A copy of this judgment be sent to the learned Additional Controller along with the trial court record and the appeal file be consigned.
Announced through videoconferencing due to Covid-19 lockdown on this Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA 3rd day of September, 2020 Date: 2020.09.03 11:31:59 +05'30' (GIRISH KATHPALIA) District & Sessions Judge (HQ) Rent Control Tribunal (Central) Tis Hazari Courts, Delhi. 03.09.2020 RCT No.178/2018 Vinod Gupta & Ors. vs Sukhbir Saran & Ors. Page 13 of 13 pages