Delhi Wakf Board v. Vijay Kumar Saini & Ors.

1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 13.2.2014 which has dismissed the two applications which were filed by the petitioner/defendant. One application was under Order 8 Rule 1 CPC to file the written statement by recalling the earlier order closing the right to file written statement. The second application was under Order 7 Rule 11 CPC. In spite of the fact that the two appeals should have been filed against two orders and not one consolidated appeal, I am yet in the interest of justice entertaining this petition. 2014:DHC:3217

2. The petitioner is the defendant in the trial court. The right of the petitioner to file written statement was closed way back vide order dated 3.5.2008 because in spite of repeated opportunities the petitioner-defendant did not file the written statement. That order had become final. Once that order became final, the subject application which has been dismissed by the impugned order, moved after about five years again seeking to file the written statement, was hence clearly misconceived, and therefore has been rightly dismissed by the trial court. 3(i) So far as the second application under Order 7 Rule 11 CPC is concerned, if this application is allowed to be entertained, then it would mean that effectively issue which should have been taken up in the written statement, and which written statement has not been allowed to be filed, will be allowed to be entertained by means of an application. The application under Order 7 Rule 11 CPC was also therefore totally misconceived because no written statement exists, issues of the written statement cannot be allowed to be urged by filing of applications and which would mean doing indirectly what cannot be done directly. Besides, the issue which was raised in the application under Order 7 Rule 11 CPC filed by the petitioner-defendant, has been concluded against the petitioner right up to this Court, and which is noted in internal page 3, para 2 of the order.

(ii) Though counsel for the petitioner urges that the earlier judgment in RSA No.126/2009 does not decide the issue raised in the application under Order 7 Rule 11 CPC, even if that be so, once the written statement is not on record, defences which ought to have been taken up in the written statement cannot be allowed to be entertained by means of filing of an interim application by the defendant/petitioner.

4. 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. JULY 11, 2014 VALMIKI J. MEHTA, J. ib