Prithvi Singh v. Azadpur Agriculture Produce Market Committee

1. This is a petition under Article 227 of the Constitution of India impugning the order of the trial court dated 02.7.2014 which has allowed the filing of the written statement by condoning the delay.

2. Firstly, I would like to observe that certain orders are made appealable in Code of Civil Procedure, 1908 (CPC) and certain orders are not made appealable. Once the orders are not appealable, the object of law is that such orders should not be appealed by the litigants inasmuch as such orders ordinarily do not cause prejudice. Powers under Article 227 of the 2014:DHC:4193 Constitution of India are discretionary and extraordinary powers, and the same are exercised to ensure that injustice is not caused. Procedural orders are ordinarily not interfered with under Article 227 of the Constitution of India, more so when there is effectively only an extension of time granted for filing of the written statement. No doubt, by amendment of CPC by the Amending Acts of 1999 and 2002, a total period of 30 days plus delay to be condoned upto 60 days is provided under Order VIII Rule 1 CPC, however, now it is settled law as per the various judgments of the Supreme Court that the period of filing of written statement is a directory period and not a mandatory period. No doubt, delay which is a large delay would not be condoned as a matter of routine, however, condonation of delay depends both as per the facts which are in issue i.e the valuable rights of parties involved as also the reasons given for the delay. Ordinarily, delay of just a few months can be condoned subject to payment of costs.

3. In the present case, written statement was filed by the respondent within about 7½ months of service i.e a delay of about 4½ months beyond the prescribed period of 90 days. The period of 4½ months in my opinion, in the facts of the present case where valuable rights of parties are involved with respect to entitlement of the respondent to construct on its property and give right of access as claimed by the petitioner/plaintiff, is not a large delay and smacking of malafides for the trial court to have not condoned the delay and take the written statement on record with payment of costs and hence the delay has been condoned.

4. Learned counsel for the petitioner places reliance upon a judgment of the learned Single Judge of this Court in the case of Sardar Vallabhbhai Patel Smarak Trust Vs. Samarth Nangia 177 (2011) DLT 499, however, the judgment will not apply to the facts of the present case because whether delay should be condoned is an aspect depending on the facts of each case and in view of the explanation which has been given with respect to delay that the concerned officer, M.P.Gulati who was in-charge of the case on behalf of the respondent/Azadpur Agricultural Produce Market Committee was to retire, and therefore he in his works pertaining to retirement forgot filing of the written statement and the file was misplaced, is a good ground for condonation of delay.

5. In view of the above, there is no merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 27, 2014