M/S Superus Guesthouse Hospitalities Pvt. Ltd. & Anr. v. Varghese George

1. This petition filed under Article 227 of the Constitution of India impugns the order dated 02.05.2023 passed by Additional District Judge-01, Patiala House Court, New Delhi in Civil Suit no. 6712020 titled as Varghese George v. M/S Superus Guesthouse Hospitalities Pvt Ltd (‘Trial Court’), whereby the Trial Court has dismissed the Petitioner’s application under Order IX Rule 7 Code of Civil Procedure (‘CPC’) for setting aside the order dated 02.11.2022 along with the application filed under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the written statement.

1.1. The Trial Court vide order dated 02.11.2022, closed the right of the Petitioners to file a written statement, since the Petitioners had failed to file the written statement.

1.2. The Petitioners are defendants and the Respondent is the plaintiff in the civil suit file for recovery of money.

2. The learned counsel for the Respondent has entered appearance on advance service. He states that the Petitioners have not shown any just cause for their non-appearance before the Trial Court despite due receipt of summons and the delay in filing the written statement.

2.1. He states that the Trial Court at paragraph 10 of the impugned order accurately sets out the negligence exhibited by the Petitioners herein in conducting the trial. Paragraph 10 of the impugned order reads as under:

2.2. He states that though the Petitioners were proceeded ex-parte on 02.11.2022, the Petitioners elected to file the application under Order IX Rule 7 CPC and the written statement after a further delay of 146 days only on 29.04.2023.

2.3. He states on 03.03.2023, the Petitioners herein had entered appearance through a new lawyer who filed his vakalatnama, however, even on the said date no appropriate application was filed for setting aside of the order dated 02.11.2022. He states in fact the legal costs of Rs. 5,000/- imposed vide order dated 03.03.2023 have not been paid till date.

2.4. He states that the Respondent herein has examined two witnesses i.e., PW-1 and PW-2 on 02.11.2022 and 17.01.2023 respectively. He states that the matter is now listed on 23.08.2023 for addressing final arguments. He states that Respondent is an employee and has instituted this civil suit for recovery of an amount of Rs. 4,20,000/- plus interest, which is due to him.

2.5. He states that however, to expedite the final adjudication, the impugned order may be set aside subject to the Petitioners being put to strict terms that they will not seek any further adjournments in the matter and are directed to pay compensatory costs to the Respondent for the delay caused in the trial.

3. In reply, learned counsel for the Petitioners states on instructions that Petitioners are willing to pay legal costs to the Respondents and give an undertaking to this Court that no adjournment will be sought before the Trial Court on any date of hearing. He states that the Petitioners will duly cooperate with the Trial Court and they will ensure that they are duly represented by the counsel and no adjournment will be sought on the ground of the unavailability of the counsel.

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

5. In the opinion of this Court the impugned order dated 02.05.2023 passed by the Trial Court does not suffer from any infirmity and is correct in facts.

6. In the facts of this case, it would be appropriate to refer to the case of Randhir Singh v. Urvashi Suri passed by the learned Single Judge of this Court in CM (M) 717/2023 dated 04.05.2023 where 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, the learned Single Judge 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: