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HIGH COURT OF DELHI
JUDGMENT
SHRI. KETAN DWIVEDI ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. Vidit Garg, Advocate
For the Respondent : Mr. Sudeep Singh, Mr. Akul Mehandru and Mr. Amit Malik, Advocates.
[ The proceeding has been conducted through Hybrid mode ]
1. Exemption is allowed, subject to all just exceptions. CM APPL. 9995/2023 (for exemption)
2. Application stands disposed of.
3. Petitioner challenges the order dated 18.01.2023 passed in CS NO. 216/2020 titled as “Ketan Dwivedi vs. Ashok Pratap Singh”, whereby the learned Trial Court has taken on record the written statement filed by the respondent/ defendant beyond the stipulated period of 120 days.
4. Learned counsel appearing for the petitioner/ plaintiff submits that the sanctity attached to the timelines mentioned under Order 8 Rule 1 of CPC, 1908 in respect of even ordinary suits has to be adhered to strictly and cannot be violated under any condition whatsoever.
5. Learned counsel submits that the exercise of jurisdiction by the Civil Court under Section 148 of the CPC itself is circumscribed to the maximum period of 30 days and definitely not beyond that. Learned counsel submits that having regard to the fact that the learned Trial Court has permitted the written statement of the respondent/ defendant to be taken after condoning a delay on 102 days in filing the written statement itself is contrary to the provisions under Section 148 of CPC,
1908.
6. Learned counsel further submits that the time period itself is wrongly calculated and according to him, it should have been 133 days.
7. Learned counsel relies upon the judgment of the Supreme Court in R.N.Jadi and Brothers and Ors. vs. Subhashchadra in Civil Appeal No. 2925/2007 rendered on 10.07.2007, whereby the attention of the Court was drawn to para no. 21 to submit that the Supreme Court had categorically taken into consideration the fact that enormous delay in disposals of the trials was being caused due to the inordinate delay in filing the written statements on behalf of the defendants.
8. Learned counsel submits that being anxious of such delays being caused, the Supreme Court had directed that the power of extension of time granted to the Court under Section 148 of the CPC was curtailed by the outer limit of 30 days from the date originally fixed was granted.
9. Thus, on the basis of the aforesaid facts as well as the judgment rendered by the Supreme Court in the case of R.N. Jadi (supra), learned counsel submits that the written statement should not and ought not to have been taken on record and prays that the same be taken off record and cost imposed for the delay in trial that has been caused due to the delay in filing of the written statement.
10. Per contra, learned counsel appearing for the respondent/ defendant submits that the written statement, no doubt, was filed with a delay of 102 days, however, by an application under Order 8 Rule 1 of CPC, 1908, the respondent/ defendant had given a justifiable and reasonable cause as to why the written statement was not filed within the stipulated period.
11. Learned counsel drew the attention of this Court to the application under Order 8 Rule 1 of CPC, 1908 placed at page 20 of the present petition to submit that since the dispute raised by the petitioner/ plaintiff was in respect of title and so as to enable him to defend his own case, he had to obtain the titled documents from one Mr. G.S. Jhalini, who was supposed to be the co-owner of the property and was at that point in time almost 90 years old.
12. Learned counsel submits that since Mr. Jhalini was very old and was not maintaining proper health and could not make himself readily available for comments, the delay had occurred.
13. Learned counsel submits that the delay had occurred due to the aforesaid reason and the delay cause was unintentional and not deliberate.
14. Learned counsel submits that the written statement can be filed and taken on record by the Court even beyond the period stipulated in the Order 8 Rule 1 of the CPC for sufficient causes which can be shown by a party.
15. Learned counsel submits that the impugned order did in fact taken in to account the version of the respondent/ defendant in respect of the said Mr. Jhalini and on that account condoned the delay and taken the written statement on record, subject to a cost of Rs. 2,000/-
16. This Court has considered the rival submissions of the parties and has perused the entire record including the impugned order. This Court has considered the submissions made by the learned counsel based on the judgment of the Supreme Court in R.N.Jadi (supra) and has tested the same against the facts obtaining in the present case.
17. In the present case, the respondent was served on 07.09.2022, however, learned counsel for the respondent/ defendant objects to the same and submits that he was served on 09.09.2022.
18. In view of the facts which are obtaining in the present case, it is hardly relevant as to when the respondent/ defendant was served inasmuch as, it is admitted that there was definitely a delay in filing the written statement.
19. This Court has considered the fact that the respondent for the purposes of his defence, required to obtain and file on record, the title documents and other comments from the co-owner, namely, Sh. G.S. Jhalini, and the fact that the defendant himself is 81 years of age, it was not possible for the defendant at such advance age in life to obtain the required documents as well as other advice from Mr. Jhalini.
20. It has been informed by the learned counsel appearing for the respondent/ defendant that Mr. Jhalini is even older than the defendant and keeping in regard the said fact, the learned Trial Court appears to have exercise the jurisdiction correctly and in accordance with law and in order to do substantial justice.
21. This Court has also considered the judgment of Supreme Court in R.N. Jadi (supra), whereby the Supreme Court has directed that the delay ought not to be condoned in a routine manner and definitely the period beyond 90 days of the extended period, ought not to be condoned at all. However, there are many judgments rendered by the Supreme Court subsequently which have followed Salem Advocate Bar Association.
22. The Supreme Court in the judgments of Salem Advocate Bar Association, T.N vs. Union of India, reported in (2005) 6 SCC 344, Kailash vs. Nanhku and Ors, reported in (2005) 4 SCC 480 and in as recent as Bharat Kalra vs. Raj Kishan Chabra reported in 2022 SCC Online SC 613 has condoned delay even beyond the stipulated period of 120 days in all and has laid down the ratio that the written statements can be taken beyond that stipulated period so as to enable the parties to litigate on merits rather than on technicalities. It is trite that the disputes ought to be resolved on merits rather than on technicalities.
23. In a recent case, the learned Division Bench of this Court in Jamaluddin vs. Nawabuddin and Ors. in FAO(OS) 149/2022 reported as Neutral Citation Number - 2023/DHC/001211 rendered on 15.02.2023 has considered the judgments of the Supreme Court in Kailash vs. Nankhu (supra), Salem Advocate Bar Association (supra) as well as Bharat Kalra (supra) rendered by the Supreme Court and had permitted the filing of the written statement even beyond the stipulated period.
24. The judgments as handed over by the parties are taken on record.
25. Having regard to the catena of judgments, this Court is of the opinion and keeping in view the facts of the present case, by way of the impugned order, the learned Trial Court has not committed any material irregularity, illegality or judicial impropriety in taking the written statements of the respondent/ defendant on record.
26. In terms of the judgment rendered by the learned Division Bench of this Count in the case of Jamaluddin (supra), compensatory costs has been directed to be paid to compensate the plaintiff having regard to the delay in filing of the written statement. Though, the learned Trial Court has imposed a cost of Rs. 2,000/-, yet this Court is of the opinion that the cost as imposed is on the lower side. Further cost of Rs. 10,000 in the circumstances would suffice.
27. Petition of the petitioner is partly allowed on the aspect of compensatory cost. The respondent/ defendant shall pay to the petitioner/ plaintiff a further sum of Rs. 10,000/- as compensatory costs in terms of the aforesaid judgments.
28. With the aforesaid directions, the petition is disposed of.
TUSHAR RAO GEDELA, J MARCH 1, 2023