Abhishek Grover v. Pushpa Grover

1. This petition filed under Article 227 of Constitution of India impugns order dated 04.02.2023, passed by the ADJ-09, Central District, Tis Hazari Courts, Delhi (‘Trial Court’) in civil suit no. 1015/2021, inter alia, dismissing the application filed by the Petitioner under Order VIII rule 1 of Code of Civil Procedure (‘CPC’).

1.1. The Petitioner is the defendant and the Respondent is the plaintiff in the civil suit.

1.2. The civil suit has been filed by the Respondent against the Petitioner for mandatory injunction qua property No. T-551, shop/godown no. 14, first floor, Prakash Market, Nabi Karim, Paharganj, New Delhi – 110055 (‘suit property’) and mesne profits of Rs.[1] lakh per month.

1.3. The Petitioner herein is admittedly in possession of the subject property, which is a commercial premises.

2. The summons in the suit were duly served and the complete paper book was supplied to the Petitioner, on 28.05.2022. Therefore, the statutory period for filing the written statement is reckoned from 28.05.2022. However, since the Petitioner failed to file the written statement, his right to file written statement was closed on 26.09.2022.

2.1. The Petitioner thereafter, inter alia, filed an application under Order VIII Rule 10 of CPC on 29.11.2022 seeking extension of time by 180 days to file the written statement.

2.2. The said application under Order VIII Rule 10 of CPC has been dismissed by the Trial Court vide impugned order dated 04.02.2023. The operative part of the impugned order of the Trial Court reads as under: “Another application u/o 8 rule 10 CPC dated 29.11.2022 moved on behalf of defendant seeking permission to file written statement with condonation of delay of 180 days. In this case, on 28.05.2022, counsel for the. defendant appeared and sought complete paper book. Complete paper book was supplied in PDF format and it was observed that limitation to file pleadings started from 28.05.2022. No written statement was filed and on 26.09.2022 right of defendant to file written statement was closed and matter was listed for PE. Thereafter, counsel for defendant kept on appearing on subsequent dates but no application was filed. By way of this application defendant wants to seek condonation of delay in filing the written statement. The ground taken in the application is that no complete paper book of “amended plaint” was given to the defendant/counsel of the defendant and due to that reason written statement was not filed. Even the defendant suffered from viral fever and could not get the written statement prepared. No medical prescription filed with the application. No cogent reason given by the counsel for the defendant as to why he had not inspected the file regarding the paper book or moved any application that appropriate paper book was not supplied. So, in these circumstances, no plausible reason has been put forward by the defendant for condoning the delay. Accordingly, the application is dismissed.”

3. Learned counsel for the Petitioner states that the Petitioner herein did not file his written statement as he was defending proceedings before the District Magistrate in separate proceedings initiated by Respondent under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘Act of 2007’). He states that the Petitioner herein had suffered eviction order with respect to the suit property in the said proceedings. He states that the Petitioner succeeded in the appeal before the District Magistrate on 23.02.2023; the eviction order has been set aside and for this reason there was a delay in filing the written statement. He states that while the eviction order was in operation, the Petitioner believed that the present proceedings seeking the same relief of possession was duplication.

3.1. He states that the Petitioner undertakes to cooperate in the expeditious disposal of the suit and not seek any adjournment before the Trial Court.

3.2. He states that the written statement of the Petitioner was drafted and signed on 28.11.2022 itself; however, the same was not taken on record with the application filed under Order VIII Rule 10 of CPC.

4. In reply, the learned counsel for Respondent states that the plea now raised by the counsel for the Petitioner finds no mention in the application filed under Order VIII Rule 10 of CPC and is, therefore, an afterthought. He states that the Respondent has led its evidence. He states that the Petitioner failed to cross examine the witnesses and the evidence stands concluded. He states that the matter is now at the stage of the final arguments. He states that the Petitioner has delayed the suit proceedings and opportunity, if any, be granted to him subject to payment of costs and on strict terms.

5. This Court has considered the submissions of the parties and perused the record.

6. The Petitioner has placed before this Court the original of the written statement signed and affirmed by him on 28.11.2022. A copy of the said written statement has been provided to the counsel for the Respondent during the course of the hearing.

7. The suit pertains to possession of the suit property and mesne profits. The parties are related to each other being parent and child. The Coordinate Bench of this Court in Randhir Singh v. Urvashi Suri, 2023 SCC OnLine Del 2644, after taking note of the judgments of the Supreme Court and this Court and while considering the issue of closing the right of the defendant to file written statement has held that the effort of the Court is always that disputes should ordinarily be decided on merits. The relevant portion of the said judgment reads as under: