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2023 DIGILAW 1879 (DEL)

Honey Chandel @ Honi Pal v. Lovely Pal

2023-03-27

NAVIN CHAWLA

body2023
JUDGMENT Navin Chawla, J. (Oral) I.A. 5962/2023 & O.A. 31/2023 1. The above application, being I.A. 5962/2023, has been filed seeking condonation of 175 days delay in filing the above appeal, being O.A. 31/2023, which in turn challenges the order dated 07.09.2022 passed by the learned Joint Registrar (Judicial), closing the right of the defendant nos.1 and 2/applicants/appellants herein to file their written statement. 2. In the appeal, it is contended that the suit itself is not properly instituted inasmuch as the plaintiffs have not affixed the ad valorem Court Fee. It is further contended that the parties, being brothers and sisters, were trying to amicably resolve their disputes and for this reason, there was a delay in filing of the written statement. 3. It is further contended that the defendant no.2 is not well and it was he who was to instruct the counsel for preparing the written statement. He was in depression and got his leg fractured due to a road accident. 4. I am not impressed with the submissions made by the learned counsel for the defendant nos.1 and 2/appellants/applicants. 5. As far as the submission of non affixation of proper Court Fee on the plaint is concerned, the same cannot extend the period prescribed for filing of the written statement. 6. As far as the plea of parties exploring possibility of settlement is concerned, I again find this plea to be an afterthought. The summons in the suit was served on the defendant nos.1 and 2 on 30.10.2021. Till the passing of the impugned order, that is, 07.09.2022, the written statement had not been filed by the said defendants. The plea that some settlement talks were going on between the parties is not only strongly refuted by the learned counsel for the plaintiffs and by the defendant no.3 but is also refuted by the own documents of the defendants, that is, copies of the police complaints dated 17.07.2022 and 20.07.2022 filed by the appellants/applicants with the present appeal/application. If the appellants/applicants were filing police complaints against the plaintiffs, surely the parties were not negotiating for a settlement. Further, if police complaints can be filed, there is no reason why the applicants/appellants would not file their written statement at least after filing the police complaints. 7. If the appellants/applicants were filing police complaints against the plaintiffs, surely the parties were not negotiating for a settlement. Further, if police complaints can be filed, there is no reason why the applicants/appellants would not file their written statement at least after filing the police complaints. 7. The plea of the defendant nos.1 and 2 that the defendant no.2 was the one who was to instruct the counsel and due to his ill-heath, the written statement could not be filed, is also not acceptable as the medical documents filed in support of such plea are of a date post the passing of the impugned order. 8. There is also a delay of 175 days in filing of the appeal itself. This shows that the defendant nos.1 and 2 have been more than lax in defending the present suit. 9. The learned counsel for the defendant nos.1 and 2 has placed reliance on the judgment of this Court in Dr. Sukhdev Singh Gambhir v. Amrit Pal Singh & Ors. , 2003 SCC OnLine Del 430:, to contend that in a suit for partition concerning the family members, endeavour should be made for the parties to arrive at an amicable settlement and, therefore, the delay in filing the written statement deserves to be condoned. However, in my opinion the said judgment also cannot come to the aid of the applicant/appellants. As noted hereinabove, from the conduct of the defendant nos.1 and 2 itself, it is evident that no effort of arriving at a settlement was being made by them. The said judgment would, therefore, not be applicable to the facts of the present case. 10. Accordingly, the application seeking condonation of delay in filing of the appeal and even the appeal itself on merit, are dismissed.