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2019 DIGILAW 1286 (HP)

Raj Kishore Gupta v. Suresh Kumar

2019-09-02

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioners have challenged order, dated 05.04.2019 (Annexure P-13), passed by the Court of learned Civil Judge, Court No. 3, Shimla in CMA Nos. 9004832/18 and 9004892 filed in Civil Suit No. 339-1 of 2018, vide which, inter alia, the learned Court below has granted time to the plaintiff to file written statement to the Counter-claim preferred by the petitioners. 2. Brief facts necessary for the adjudication of present petition are that a suit has been filed by plaintiff-Suresh Kumar (respondent No. 1 in this petition) for permanent perpetual prohibitory injunction for restraining the defendants from interfering in any manner in the peaceful possession of the plaintiff over the suit property. The defendants impleaded in the said suit are petitioners as also proforma respondent No. 2 herein. Alongwith their written statement, the petitioners herein also preferred a Counter-claim. Plaintiff filed an application for rejection of the Counter-claim under Order VII, Rule 11 & Order 8 Rule 6 (C) read with Section 151 of the Code of Civil Procedure. This application was rejected by the Court of learned Civil Judge, Court No. 3, Shimla vide order, dated 16.08.2018. 3. Feeling aggrieved, plaintiff filed a Civil Revision No. 188/2018, titled Suresh Kumar Vs. Deepak Sood and others before this Court. This petition was dismissed by Hon'ble Co-ordinate Bench of this Court vide judgment, dated 26.11.2018. After dismissal of said petition, the plaintiff filed an application under Order VIII, Rule 1 read with Section 148 and 151 of the Code of Civil Procedure before the learned Court below for extension of time for filing written statement to the Counter-claim filed on behalf of defendants No. 2 and 3. Before this, an application was also filed under Order VIII, Rule 1 of the Code of Civil Procedure by the Counter-claimants for striking off the defence of the Non-counter claimant/plaintiff. Vide impugned order, whereas the application filed by the plaintiff for extension of time to file written statement to the Counter claim has been allowed, the application filed by the counter claimants for striking off the defence of non-counter claimant/plaintiff, has been dismissed. 4. Mr. Vide impugned order, whereas the application filed by the plaintiff for extension of time to file written statement to the Counter claim has been allowed, the application filed by the counter claimants for striking off the defence of non-counter claimant/plaintiff, has been dismissed. 4. Mr. Sumit Sood, learned counsel for the petitioners has argued that the impugned order is not sustainable in law, as the learned Court while allowing the application filed by the plaintiff for extension of time to file written statement to the Counter-claim, erred in not appreciating that the Court could not have granted any extension of time in terms of the provisions of Order VIII, Rule 1 of the Code of Civil Procedure, as also the law laid down by the Hon'ble Supreme Court in M/s SCG Contracts India Pvt. Ltd. Vs. K. S. Chamankar Infrastructure Pvt. Ltd. & Ors., Civil Appeal No. 1638 of 2019, decided on February 12, 2019, in which, Hon'ble Supreme Court has held that under the amended provisions of the Code of Civil Procedure, mere filing of an application under Order VII, Rule 11 of the Code of Civil Procedure would not extend the time to file written statement beyond the statutory period 120 days. 5. I have heard learned counsel for the parties and have also gone through the impugned order as well as other documents appended therewith. 6. Before proceeding further, it is clarified that though in the grounds of petition, challenge is also there to the order passed by the learned Court below on an application filed under Order VI, Rule 17 of the Code of Civil Procedure by the plaintiff, which was also allowed vide order, dated 05.04.2019, however, no arguments were addressed on this issue by learned counsel for the petitioners. 7. It is a matter of record that written statement to the plaint was filed by the petitioners before the learned Court below on 10.05.2018 and alongwith the written statement, they also preferred a Counter-claim. It is also a matter of record that whereas no written statement to the Counter-claim was filed by the plaintiff, yet he preferred an application under Order VII Rule 11 & Order VIII Rule 6 (C) read with Section 151 of the Code of Civil Procedure for rejection of the Counter- claim. It is also a matter of record that whereas no written statement to the Counter-claim was filed by the plaintiff, yet he preferred an application under Order VII Rule 11 & Order VIII Rule 6 (C) read with Section 151 of the Code of Civil Procedure for rejection of the Counter- claim. After dismissal of the said application by the learned Civil Court, plaintiff preferred a Civil Revision before this Court, which was dismissed by this Court on 26.11.2018. It is thereafter that he filed an application for extension of time for filing written statement to the Counter-claim, which was allowed by the learned Court below. 8. Order VIII, Rule 1 of the Code of Civil Procedure provides that the defendant shall within thirty days from the date of service of summons on him, present a written statement of his defence, provided that where defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 9. Hon'ble Supreme Court in M/s SCG Contracts India Pvt. Ltd. (supra) was dealing with the situation where an application under Order VII, Rule 11 for rejection of the plaint was filed by the defendants and no written statement to the plaint was preferred. The suit was being adjudicated under the provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and Hon'ble Supreme Court in this judgment was dealing with the amendments to the Code of Civil Procedure, 1908 by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. 10. In the present case, the suit between the parties, which is pending before the learned Trial Court, is not being adjudicated under the provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. Therefore, the judgment of the Hon'ble Supreme Court (supra) cited by learned counsel for the petitioners is not at all applicable to the facts of this case. 11. Therefore, the judgment of the Hon'ble Supreme Court (supra) cited by learned counsel for the petitioners is not at all applicable to the facts of this case. 11. Even otherwise, in the present case, the extension of time, which has been granted by the learned Trial Court in favour of respondent No. 1/plaintiff is with regard to filing of written statement to the Counter-claim. Rule (6-A) of Order VIII of the Code of Civil Procedure deals with the Counter-claim by defendant. Sub-clause (3) of Rule (6-A) of Order VIII of the Code stipulates that the plaintiff shall be at liberty to file a written statement in answer to the Counter-claim of the defendant within such period, as may be fixed by the Court. 12. In this background, according to me, perhaps there was no need for the plaintiff to have had filed an application for extension of time to file written statement to the Counter-claim. Besides this, the Civil Revision which was filed by the plaintiff against rejection of his application under Order VII, Rule 11 and Order VIII, Rule 6(C) read with Section 151 of the Code of Civil Procedure was decided by this Court on 26.11.2018 and he approached the learned Court below for extension of time for filing the written statement to the Counter-claim in less than a fortnight of the said petition having been dismissed by the Court. Therefore also, it cannot be said that the plaintiff was unnecessarily avoiding filing of the written statement to the Counter-claim. In these circumstances, in my considered view, learned Trial Court has correctly allowed the plaintiff to file written statement to the Counter-claim by extending time, as the same, but obvious, would help the Court in adjudication of the dispute between the parties. 13. This Court further concurs with the findings returned by the learned Trial Court that non-compliance with any procedural requirement should not come in the way of the Courts in dispensing justice. Therefore, as this Court finds no infirmity with the impugned order, dated 05.04.2019 (Annexure P-13), passed by the Court of learned Civil Judge, Court No. 3, Shimla CMA Nos. 9004832/18 and 9004892 filed in Civil Suit No. 339-1 of 2018 and further as this Court finds no merit in the petition, the same is dismissed, so also pending miscellaneous applications, if any.