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Showing contexts for: misplaced of file in Bharat Kalra vs Raj Kishan Chabra on 12 August, 2021Matching Fragments
7. Mr. Shrey Ashat, learned counsel for the respondent/plaintiff submitted that there was no error in the impugned order and the court could not re-appreciate facts in exercise of its powers under Article 227 of the Constitution of India. It was further submitted that the application filed by the petitioner/defendant for condonation of delay in filing the written statement to the suit and reply to the application contained only bald averments that the delay was on account of the counsel or the clerk who had misplaced the file as no affidavit of the clerk or counsel had been filed. Further, there was no explanation as to why, despite the recovery of the files on 14th March, 2020, the written statement was not filed till 20th August, 2020, even though the lockdown had been eased and filing permitted by June, 2020. It was also submitted that the learned Trial Court had rightly concluded that there was no explanation and that there was lack of bona fides in filing the application. He thus, prayed that the petition be dismissed.
16. In the present case, there was no lockdown from 1st June, 2020. What expired during the lockdown was not the limitation to file the written statement. On being served on 11th January, 2020, the petitioner/defendant had to file the written statement by 10th February, 2020. On 14th March, 2020, when the misplaced file and documents were supposedly found, a further period of 33 days had already expired. By 23rd/25th March, 2020, when the lockdown in Delhi/nationwide lockdown was announced, a total of 72/74 days had already expired. Second proviso to Order VIII Rule 1 CPC vests the court with discretion to condone delay in filing the written statement provided a total time period of 120 days from the date of service of summons had not elapsed. It is in this context that the petitioner/defendant was required to explain why he did not file the written statement immediately in June, 2020 and waited for a further period of almost three months to file the written statement. It would have been probably different had the first 30 days of limitation being available when the lockdown was enforced, as in that event, without a doubt, the limitation would have been enlarged in terms of the directions of the Supreme Court.