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% 20.9.2011
Present: Mr.Arjun Mittra and Mr.Saurabh Bajaj, Advocate for the petitioner.
Mr.Rohit Mahk, Advocate for the respondent.
+CM(M) No.355/2011
*
The impugned order is the order dated 25.01.2011 by virtue of which the permission sought by the defendant to file his written statement belatedly had been rejected. Written statement had admittedly been filed on 20.7.2010 which was beyond the statutory period contained in Order 8 Rule 1 of the Code of the Civil
Procedure. The impugned order had accordingly struck off the defence of the defendant and not taken the written statement of the defendant on record. On the last date predecessor of this
Court had ordered that the written statement of the defendant be taken on record subject to the defendant paying Rs.4000/- as cost to the plaintiff; this was a conditional order; i.e. if the plaintiff was willing to accept the cost of Rs.4000/- the written statement was to be taken on record. The plaintiff has appeared pursuant to the summons issued upon him. He contends that he is not willing to accept the cost. The impugned order suffers from no infirmity.
Learned counsel for the respondent/plaintiff placed reliance upon a
% 20.9.2011
Present: Mr.Arjun Mittra and Mr.Saurabh Bajaj, Advocate for the petitioner.
Mr.Rohit Mahk, Advocate for the respondent.
+CM(M) No.355/2011
*
The impugned order is the order dated 25.01.2011 by virtue of which the permission sought by the defendant to file his written statement belatedly had been rejected. Written statement had admittedly been filed on 20.7.2010 which was beyond the statutory period contained in Order 8 Rule 1 of the Code of the Civil
Procedure. The impugned order had accordingly struck off the defence of the defendant and not taken the written statement of the defendant on record. On the last date predecessor of this
Court had ordered that the written statement of the defendant be taken on record subject to the defendant paying Rs.4000/- as cost to the plaintiff; this was a conditional order; i.e. if the plaintiff was willing to accept the cost of Rs.4000/- the written statement was to be taken on record. The plaintiff has appeared pursuant to the summons issued upon him. He contends that he is not willing to accept the cost. The impugned order suffers from no infirmity.
Learned counsel for the respondent/plaintiff placed reliance upon a
JUDGMENT
reported in 177(2011) DLT 499 Sardar Ballabhbhai Patel
Smarak Trust Vs. Samarth Nanaia . Contention is that discretion
2011:DHC:19473 should not be exercised in favour of a person who has not come clean to the court without disclosing the true facts.
There is no dispute that even after expiry of 90 days, the court in its discretion may, extend time for filing written statement.
Contention of the defendant is that on 20.7.2010 the written statement in fact had been ordered to be taken on record and the court had also recorded that advance copy of the written statement be furnished to the plaintiff who may file replication before next date. Thereafter, after four months an objection was taken by the plaintiff that the written statement having not been filed within stipulated period it should be taken off the record; pursuant to which the order dated 25.01.2011 had been passed.
The present suit is a suit for declaration and cancellation of documents. A valuable right would in fact be lost to the litigant if his defence is not permitted to be taken on record. Keeping in view the overall scenario, the impugned order is set aside; subject to cost of Rs.l0,000/- the written statement already filed on
20.7.2010 be taken on record. Cost be paid within a period of two weeks. Replication be filed after payment of co^t in two weeks.
Petition is disposed of.
INDERMEET KAUR, J.
SEPTEMBER 20, 2011 nandan
2011:DHC:19473
Smarak Trust Vs. Samarth Nanaia . Contention is that discretion
2011:DHC:19473 should not be exercised in favour of a person who has not come clean to the court without disclosing the true facts.
There is no dispute that even after expiry of 90 days, the court in its discretion may, extend time for filing written statement.
Contention of the defendant is that on 20.7.2010 the written statement in fact had been ordered to be taken on record and the court had also recorded that advance copy of the written statement be furnished to the plaintiff who may file replication before next date. Thereafter, after four months an objection was taken by the plaintiff that the written statement having not been filed within stipulated period it should be taken off the record; pursuant to which the order dated 25.01.2011 had been passed.
The present suit is a suit for declaration and cancellation of documents. A valuable right would in fact be lost to the litigant if his defence is not permitted to be taken on record. Keeping in view the overall scenario, the impugned order is set aside; subject to cost of Rs.l0,000/- the written statement already filed on
20.7.2010 be taken on record. Cost be paid within a period of two weeks. Replication be filed after payment of co^t in two weeks.
Petition is disposed of.
INDERMEET KAUR, J.
SEPTEMBER 20, 2011 nandan
2011:DHC:19473