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2005 DIGILAW 2936 (RAJ)

Prem Kumar Bansal v. Niraj Kumar

2005-11-10

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-The petitioner has submitted this writ petition being aggrieved by the order dated 20.10.2004 (Annexure-2) whereby the learned trial Court has refused to take a belated written statement filed by the petitioner on record. 2. The petitioner is defendant in a suit for eviction filed by the Respondent Nos. 1 and 2 on 01.06.2001 pending in the Court of Civil Judge (Junior Division), Sri Ganganagar. The petitioner was served with the summons and put in appearance and despite several opportunities, failed to submit written statement and ultimately his right to submit written statement was closed on 21.07.2002. 3. The petitioner filed an application on 24.05.2004 before the trial Court with the submissions that he remained under a bona fide impression on the assurance given by his erstwhile Counsel who did not take effective steps for filing of the written statement and it was prayed that the delay may be condoned and the written statement now being filed may be taken on record. The learned trial Court, by the order dated 20.10.2004 (Annexure 2) took into consideration the application and notice the order sheet dated 24.07.2002 by which the right to file written statement was closed with reference to all the facts and circumstances of the case including the fact that 9 opportunities had already been granted including a last chance granted on 19.04.2002 and then yet another last chance was granted on costs of Rs. 50/-and yet the written statement was not filed. The learned trial Court was of opinion that the cause shown by the petitioner was not bona fide and, therefore, the application was rejected. The order dated 20.10.2004 (Annexure-2) has been challenged in this writ petition in which this Court had issued notice for final disposal on 112.2004 and further proceedings in the suit were ordered to remain stayed for eight weeks. 4. Learned Counsel for the petitioner submitted that although there had been delay in submission of the written statement but the written statement has nevertheless been submitted on record; and that the petitioner has pointed out that it was for the erstwhile Counsel not taking appropriate steps that the written statement could not be filed in time. 4. Learned Counsel for the petitioner submitted that although there had been delay in submission of the written statement but the written statement has nevertheless been submitted on record; and that the petitioner has pointed out that it was for the erstwhile Counsel not taking appropriate steps that the written statement could not be filed in time. Learned Counsel submitted that in view of the nature of litigation and it being a suit for eviction, the petitioner may be afforded an opportunity to put his defence else he would suffer serious irreparable injury. Learned Counsel for the respondent has duly supported the impugned order and has pointed out that it was not such an exceptional case where the written statement was required to be taken on record particularly when the defendant has himself avoided to file the same for more that one year despite granting of ten opportunities and then the application for taking the written statement on record was filed only after two years of closure of written statement. 5. Having heard learned Counsel for the parties and having perused the material placed on record including the application and affidavit filed by the petitioner, this Court finds that although the conduct of the petitioner in attending the suit against him cannot be appreciated and cannot be approved, the fact nevertheless remains that the petitioner did file the written statement on 24.05.2004 and pointed out the omission of his erstwhile Counsel to take appropriate steps. The petitioner has pointed out that no further proceedings have been taken in the case and only the rent has been determined. No reason has been assigned by the plaintiffs as to why the petitioner would have been interested in simply avoiding to file written statement; such avoidance would not ensure to his benefit in this litigation. 6. The Hon’ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005 (2) WLC (SC) Civil 242, after considering various provisions of the Code of Civil Procedure particularly with reference to the Amendment Acts, 1999 and 2002 has been pleased to lay down various principles while dealing with various provisions thereof . 6. The Hon’ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005 (2) WLC (SC) Civil 242, after considering various provisions of the Code of Civil Procedure particularly with reference to the Amendment Acts, 1999 and 2002 has been pleased to lay down various principles while dealing with various provisions thereof . In relation to the provisions of Order 8 Rule 1 of the Code of Civil Procedure, the Hon’ble Supreme Court has been pleased to observe that the rule in question is to advance the cause of justice and not to defeat it. Construction of rules of procedure which promotes justice and prevents it miscarriage has to be preferred. The Hon’ble Supreme Court has been pleased to hold that the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory, although the order extending time to file written statement cannot be made in routine and the time can be extended only in exceptionally hard cases. 7. When the time limit provided in Order 8 Rule 1 of the Code of Civil Procedure is taken to be directory, it is apparent at once that denial of written statement on mere mathematical calculation of 90 days is not envisaged by the legislature. 8. It is to be imbibed that rules of procedure are intended to serve the cause of justice and in the trial of civil suits, the procedure is adopted by the Court concerned so as to advance the cause of justice providing fair opportunity of presenting their case to all the parties. The Court has inherent power to do real and substantial justice for which it exists and it is always preferred to decide an issue on merits instead of driving out a party from the Court on technicalities. 9. Although the conduct of the petitioner is not totally free from blame and delay has been caused by the petitioner, however, this Court is of opinion that in the facts and circumstances of this case, which relate to a suit for eviction, in the interest of justice if the written statement already filed is taken on record and the respondent plaintiffs are compensated by way of costs, it would subserve the cause of justice. 10. 10. This writ petition is, therefore, allowed, the impugned order dated 20.10.2004 (Annexure-2) is set aside and the defendant-petitioner is allowed to submit written statement on payment of costs of Rs. 2,000/-(Rupees two thousand).