Suresh Khanna v. OP Suri Memorial Education Society

1. By virtue of this application, the Defendant seeks extension of time for filing the written statement. It is urged by the Defendant that the Plaintiff had been awarded construction contract where-under the Defendant had made a payment of Rs. 2,82,00,000/-. However, the work awarded to the extent of Rs.20,80,800/- had not been completed by the Plaintiff in terms of the contract and thus, the Plaintiff had been paid a sum over Rs.51,00,000/- in excess of the amount actually payable to him.

2. It is averred that as against the claim of Rs.1,54,41,500/- made by the Plaintiff, in fact the Defendant was entitled to refund of Rs.51,91,959/- It is urged by the Defendant that immediately on service of the 2015:DHC:103 summons upon the Defendant, the Defendant assigned the case to its lawyer who assured to represent the Defendant on the date of hearing which was 11.07.2014. The original file of the case was also handed over to the counsel.

3. It is averred that however, when the Defendant contacted its counsel, it was informed that the counsel was not keeping good health and therefore, adjournment shall be sought on 11.07.2014 to file the written statement. It is the case of the Defendant that after attending the date on 11.07.2014, the counsel informed that the next date of hearing is 15.09.2014. Thereafter, the Defendant repeatedly tried to contact the counsel and it was informed that the Defendant’s counsel was not keeping good health and ultimately on 08.09.2014, it was informed that the counsel has been unfortunately diagnosed with cancer and had to undergo a very lengthy treatment in Max Super Speciality Hospital, Delhi. Hence, the files were taken back from the counsel and that is why on 11.09.2014, the Defendant immediately engaged a new counsel on that very day, who went through the file and prepared the written statement which was finally filed on 16.09.2014. The Defendant/applicant therefore, seeks condonation of delay of 95 days in filing the written statement.

4. The application is opposed by the Plaintiff by way of filing a written reply. It is stated that the Defendant was served with the summons of the suit on 12.03.2014. The Defendant was required to file the written statement by 11.04.2014. However, the Defendant failed to file the written statement even within the maximum period of 90 days provided under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (the CPC). The written statement was filed only on 15.09.2014 is after a delay of about five months from the initial date of 11.04.2014 and after 95 days of the expiry of the period of 90 days. It is urged that the story put forth by the Defendant is false and fabricated and a lame excuse has been put by the Defendant seeking extension of time in filing the written statement.

5. It is well settled that normally the time limit as granted under Order VIII Rule 1 CPC has to be adhered to by the Defendant for filing the written statement. However, at the same time it is no longer res intergra that the time limit as stated in the rule is only directory and in appropriate cases, the Defendant can be permitted to file the written statement beyond the period of 30 days/90 days as the case may be. The question for consideration is whether the Defendant has been able to make out a case so as to grant it indulgence of extension of time.

6. The learned counsel for the Defendant/applicant has urged that the earlier learned counsel for the Defendant (Ms. Ruchi Mahajan, Advocate) who was initially engaged by the Defendant was unfortunately diagnosed with cancer. The Defendant, therefore, had to engage another counsel immediately upon coming to know of this fact on 11.09.2014 and the written statement was filed within a period of four days of the knowledge that the original counsel has not been able to do the needful because of serious ailment.

7. The learned counsel for the Plaintiff has referred to the order dated 11.07.2014 passed by the learned Joint Registrar to urge that on 11.07.2014, it was not disclosed that the counsel was suffering from any ailment and thus, the story of the counsel’s sickness is unfounded. Moreover, it is urged that the counsel’s diagnoses to the effect that she was suffering from cancer came to be known only on 02.09.2014. By that time, the period of 30 days and even the period of 90 days to file the written statement was over. The learned counsel for the Plaintiff has relied upon Jai Gopal Goyal & Anr. v. Bishen Dayal Goyal, (2007) 5 AD Delhi 690 and Mr. Vijay Gopal Jindal v. Shree Infrastructure Finance Pvt. Ltd. & Ors., CS(OS) No.1575/2008 to contend that the applicant is not entitled to extension of time.

8. In Jai Gopal Goyal (supra), it was held that although an innocent litigant must not be allowed to suffer due to fault of his counsel, at the same time, the negligent litigant should not be permitted to take shelter under so called fault of the Advocate.

9. Similarly, in Vijay Gopal Jindal (supra), the learned Single Judge found that the Defendant’s plea of misplacing the file by the counsel for the Defendant due to shifting of office was not established and it was further queried as to why the written statement was not filed between November, 2008 till 21.01.2009 when the file had been traced.

10. In my view, the instant case cannot be compared with Jai Gopal Goyal and Vijay Gopal Jindal. It is not in dispute that the Defendant had engaged Ms. Ruchi Mahajan, Advocate. The order dated 21.04.2014 shows that service report was not on record. When the matter came up before the Joint Registrar on 11.07.2014, it was noticed that the Defendant was served on 12.03.2014. The counsel for the Defendant (Ms. Ruchi Mahajan, Advocate) sought time to file the written statement when it was informed that the period of 90 days had already expired.

11. It is true that in the order dated 11.07.2014, the ground for seeking adjournment, that is, illness of the counsel is not mentioned, yet the illness of the counsel stands established as as per the investigation report dated 03.09.2014 (the MRI was done on 02.09.2014), there was strong suspicion of cancerous growth in the right breast of the counsel which was established by order dated 11.09.2014. It can, therefore, be presumed that the Defendant’s erstwhile counsel was suffering from the disease much earlier than 02.09.2014 when she got contrast MRI conducted for the affected area. The fact that this disease or the cause for adjournment was not disclosed at the time of passing the order by the Joint Registrar on 11.07.2014 will not be very material. In any case, in view of the documentary evidence placed on record, it cannot be said that the illness of the counsel was a make believe story,

12. In view of this, this court condones the delay in filing the written statement.

13. The application is accordingly allowed. CS(OS) 563/2014

14. The written statement filed by the Defendant is ordered to be taken on record. Let replication to the written statement be filed by the Plaintiff within four weeks.

15. List before the Joint Registrar for completion of pleadings and admission/denial of the documents on 02.03.2015.