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Himachal Pradesh High Court · body

2020 DIGILAW 406 (HP)

Mohan Lal v. Prem Chand

2020-07-07

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has assailed order dated 27.11.2019, passed by the Court of learned Civil Judge, Court No.-II, Una, H.P. in CMA No. 2474 of 2019, vide which, an application filed by the petitioner for permission to file the written statement stands dismissed. 2. Brief facts necessary for the adjudication of the present petition are as under: Respondent No. 1 herein has filed a suit against the present petitioner as well as proforma respondent No. 2, which is pending adjudication in the Court of learned Civil Judge, Court No.-II, Una. For the purpose of placing on record his written statement, the petitioner herein filed alongwith the written statement an application under Section 151 of the Code of Civil Procedure praying for permission to file the written statement. 3. The application was opposed by the plaintiff before the learned Court below, inter alia, on the ground that the service stood effected upon defendant No. 1, i.e., the present petitioner on 10.05.2018, whereas the application stood filed by him on 11.10.2018, which was not within the stipulated mandatory provisions as per the requirement of Order 8, Rule 1 of the Code of Civil Procedure. It was further the stand taken by the plaintiff in the reply filed to the application that the contention of the applicant in the application that the written statement was within the stipulated period of 90 days, was incorrect. 4. Vide impugned order, the application so filed by the present petitioner has been dismissed. While dismissing the application, it has been held by the learned Trial Court that the applicant claimed that he wanted to file the written statement within the stipulated period of 90 days, however, perusal of summons which stood served upon him demonstrated that he was duly served on 11.05.2018 and thereafter, he had put in appearance before the Court for the first time on 27.08.2018 through Counsel. On 11.10.2018, the application stood filed and it was not clear as to from which date, the applicant was counting the period of limitation. Learned Trial Court further held that the application stood filed two months later and, that too, with the prayer that the applicant intended to file the written statement within the stipulated period, whereas no prayer whatsoever for extension of time or for condonation of delay stood made in the application. Learned Trial Court further held that the application stood filed two months later and, that too, with the prayer that the applicant intended to file the written statement within the stipulated period, whereas no prayer whatsoever for extension of time or for condonation of delay stood made in the application. On these grounds, learned Trial Court held that the application was not maintainable and accordingly, the same stood dismissed by the learned Trial Court. 5. Feeling aggrieved, the petitioner has filed this petition. 6. Learned Senior Counsel for the petitioner has argued that the order passed by the learned Trial Court is not legally sustainable as the Court has failed to appreciate that as from the date when the petitioner appeared before the Court, i.e., the date which was fixed by the learned Trial Court for the appearance of parties, the application was filed within the statutory period. He further submitted that even otherwise, a hyper technical approach was adopted by the learned Trial Court without appreciating that it is always in the interest of justice in case an endeavour is made to decide the case on merit. On these basis, he submitted that the order passed by the learned Trial Court be set aside and the written statement which stood appended by the applicant alongwith the application filed under Section 151 of the Code of Civil Procedure be ordered to be taken on record. 7. Learned counsel for the contesting respondent has argued that there is no infirmity in the order which has been passed by the learned Trial Court, because as from the date when the summons stood served upon the present petitioner, it was incumbent upon him to have had filed the written statement within the statutory period. He further argued that the application which stood filed under Section 151 of the Code of Civil Procedure was cryptic and vague. Nothing was mentioned in the application as to why the written statement could not be filed by the petitioner within the prescribed period. He further argued that the application which stood filed under Section 151 of the Code of Civil Procedure was cryptic and vague. Nothing was mentioned in the application as to why the written statement could not be filed by the petitioner within the prescribed period. He further argued that the observations contained in the impugned order, as have been made by the learned Court below that there was no request made for extension of time were clearly borne out from the contents of the application, as it was not the case of the applicant in the application that for some bonafide reason he was not able to file the written statement in time, therefore, reasonable extension be granted. Learned counsel for respondent No. 1 has also relied upon para Nos. 20 and 21 of the judgment passed by the Hon'ble Supreme Court in Desh Raj Vs. Balkishan (D) through proposed LR Ms. Rohini, 2020 (1) Supreme 409 , in which Hon'ble Supreme Court has held as under: 20. Routine condonation and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical processes. 21. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech (supra). 8. I have heard learned counsel for the parties and have also gone through the documents appended with the petition. 9. What has happened in this case is that the notice stood served upon the present petitioner in the Civil Suit on 11.05.2018 informing him that the matter was listed for his appearance before the learned Trial Court on 27.08.2018. On the said date, the petitioner appeared before the learned Court below through counsel and a Memo of Appearance was also filed by learned counsel on behalf of the petitioner. On the said date, the petitioner appeared before the learned Court below through counsel and a Memo of Appearance was also filed by learned counsel on behalf of the petitioner. On 27.08.2018, learned Trial Court passed the following order: Be listed for filing POA and filing WS on 01.11.2018 subject to limitation provided in CPC. 10. In compliance to said order, when the petitioner filed his written statement before the learned Trial Court, he also filed an application under Section 151 of the Code of Civil Procedure, copy of which stands appended with the present petition as Annexure P-4, praying for permission to file the written statement within the stipulated period of 90 days. Here it is not the case where despite reasonable opportunities, the petitioner failed to file the written statement and then moved an application under Section 151 of the Code of Civil Procedure for extension of time to do so. What has happened is that in compliance to order dated 27.08.2018, vide which learned Trial Court ordered listing of the case for the purpose of filing the Power of Attorney as well as written statement on 01.11.2018, subject to limitation provided in the Code of Civil Procedure, petitioner herein filed his written statement and as a matter of abundant precaution also moved an application under Section 151 of the Code of Civil Procedure for permission to file the same within the stipulated period of 90 days. It is apparent that the reference of 90 days in the application was on account of the notion in the mind of the petitioner that it was from 27.08.2018 that the period of 90 days was to be counted. 11. Be that as it may, it is a matter of record that the petitioner was served in the Civil Suit only on 11.05.2018 and the application alongwith written statement was filed before the learned Trial Court on 11.10.2018. Admittedly, the written statement was not filed within the period of 90 days as from the date of service of the present petitioner, yet the same was filed by him before the learned Trial Court before the date for which the matter was ordered to be listed by it after the petitioner put in appearance before it on 27.08.2018. Admittedly, the written statement was not filed within the period of 90 days as from the date of service of the present petitioner, yet the same was filed by him before the learned Trial Court before the date for which the matter was ordered to be listed by it after the petitioner put in appearance before it on 27.08.2018. Incidentally, on 27.08.2018, learned Trial Court posted the matter for 01.11.2018 for the purpose of filing the written statement, subject to limitation provided in the Code of Civil Procedure, whereas the period of three months as from the date of service was over even as on that date itself. The delay in filing the written statement, in the facts of the present case, was not all that inordinate and the plaintiff could have been duly compensated by the learned Trial Court by allowing the written statement to be taken on record, subject to payment of cost by the petitioner. However, learned Trial Court rather than doing this, adopted a hyper-technical approach and went on to dismiss the application, which was filed under Section 151 of the Code of Civil Procedure by the petitioner herein alongwith the written statement, with the prayer to submit the written statement. As limitation is to be counted from the date summons stood served upon the defendants, the written statement was not filed within 90 days, yet in the peculiar facts of this case, the order vide which the application which was filed under Section 151 of the Code of Civil Procedure stands dismissed and the written statement has not been taken on record, inter alia, on the ground that there was no request made in the application for extension of time, is not sustainable in law. This I say for the reason that as I have already mentioned above, learned Court below erred in not appreciating that in what context the application stood filed by the applicant. Further, even if there was no request made expressly and explicitly in the application for extension of time in filing the written statement, yet the Court could have and should have had exercised discretion vested it it under Section 151 of the Code of Civil Procedure to do the needful. In the alternative, the Court could have had called upon the applicant to move an appropriate application under Section 148 of the Code of Civil Procedure.. In the alternative, the Court could have had called upon the applicant to move an appropriate application under Section 148 of the Code of Civil Procedure.. The Court bows to the observations which have been made by the Hon'ble Supreme Court in the judgment which has been relied upon by the learned counsel for the respondent, however, in the facts of this case, it cannot be said that there was inordinate delay on the part of defendant No. 1 in filing the written statement. This Court reiterates that it is the duty of the Court to make an endeavour that the matters should be decided on merit. The procedures are there to facilitate the enhancement of cause of justice and not to throttle the same. Yes, there is merit in the contention which has been so made by learned counsel for the respondent that the application filed under Section 151 of the Code of Civil Procedure for permission to file the written statement was cryptic, but then it is common knowledge as to how these applications are prepared before the learned Courts below and it would be naive on the part of this Court to believe that the application was drafted strictly in terms of the instructions imparted to learned counsel by the present petitioner. In the peculiar facts of this case, it is reiterated that it cannot be said that there was any inordinate delay in filing the written statement. Learned Court below should have had adopted an approach to advance the cause of justice by ordering the placing of written statement on record and plaintiff could have been compensated by levying cost upon the defendant No. 1. By not doing this and by dismissing the application filed under Section 151 of the Code of Civil Procedure by the petitioner herein, indeed, grave injustice has been caused to the present petitioner, by way of passing the impugned order, which is not sustainable in law. 12. In view of the observations made hereinabove, the petition is allowed. By not doing this and by dismissing the application filed under Section 151 of the Code of Civil Procedure by the petitioner herein, indeed, grave injustice has been caused to the present petitioner, by way of passing the impugned order, which is not sustainable in law. 12. In view of the observations made hereinabove, the petition is allowed. Order dated dated 27.11.2019, passed by the Court of learned Civil Judge, Court No.-II, Una, H.P. in CMA No. 2474 of 2019 filed in Civil Suit No. 27/2018 is set aside and it is ordered that the written statement which has been filed by the present petitioner, shall be taken on record, subject to payment of cost of Rs.10,000/- by the petitioner to respondent No. 1/plaintiff. It is clarified that in case by the next date of hearing, which is fixed before the learned Trial Court, cost is not paid by the petitioner to respondent No. 1, i.e., the plaintiff before the learned Trial Court, then the order passed by the learned Trial Court shall automatically revive. It is further ordered that the cost shall be paid by the petitioner to respondent No. 1 by way of a Bank Draft, which shall be drawn in the name of the plaintiff and the learned Trial court is directed that the payment of cost in no other mode shall be accepted by it to be a proof of cost having been paid. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.