Delhi Development Authority v. Sunita Mehrota & Ors.

1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 3.8.2012 which has allowed the application filed by the plaintiff no.4/respondentno.4 for setting aside the earlier order of the trial court dated 1.2.2010 by which the written statement filed by the petitioner/defendant no.1 was taken on record. Therefore, by the impugned order the written statement filed by the petitioner/defendant no.1 was struck off the record. 2014:DHC:3908

2. The order dated 1.2.2010 reads as under:- “Amended written statement on behalf of the DDA filed. Copy supplied. MCD is given last opportunity to file written statement with direction to supply advance copy to plaintiff. Now to come up for replication/admission/denial of documents/framing of issues for 05.03.10.”

3. A reading of this order shows that there was no objection raised by the plaintiff no.4/respondent no.4 to taking of the written statement on record. Therefore, once no objection is taken as regards the filing and taking on record the written statement thereafter on second thoughts an application cannot be filed for setting aside of the order which allowed the written statement to be taken on record and further directing filing of replication.

4. I may note that no doubt there has been delay of 11 months in filing of the written statement by the DDA, however, it is now well settled law that Code of Civil Produce, 1908 (CPC) is a handmaid of justice and unless very grave prejudice is caused to the other side, and which prejudice cannot be compensated by costs, appropriate orders can be passed to allow a party to rectify the mistake. In the present case, I note that the written statement which has been filed pursuant to the order dated 1.2.2010 is only the amended written statement and the original written statement of the petitioner/defendant no.1/DDA is already on record and which is another reason why the impugned order of the trial court dated 3.8.2012 is unjustified in that it directed recalling of the order dated 1.2.2010.

5. In view of the above, the impugned order of the trial court dated 3.8.2010 is set aside. The order dated 1.2.2010 will stand restored. For the delay in filing of the amended written statement by the petitioner/defendant no.1, it will be liable to pay a sum of Rs.5000/- as costs to the plaintiff no.4/respondent no.4, and which costs shall be paid before the trial court on the next date of hearing.

6. Petition is allowed and disposed of in terms of the aforesaid observations, leaving the parties to bear their own costs.

AUGUST 14, 2014 VALMIKI J. MEHTA, J. ib