Lenient Approach In Condoning Delay In Filing Of Written Statement Will Frustrate Purpose Of Civil Procedure Code: Delhi High Court

The Delhi High Court has held that adopting a "lenient approach" in condoning delay in filing of Written Statements will frustrate the purpose of the Civil Procedure Code.

The Court was considering a Petition filed by the Petitioner against an order of the Trial Court whereby his Application seeking recall of order closing his right to file Written Statement and seeking condonation of delay in filing the same were dismissed.

The Bench of Justice Girish Kathpalia held, "I am unable to accept the argument of learned counsel for petitioner that for condonation of delay in filing the Written Statement the courts must take lenient view. Such an approach would make the provisions under Order VIII Rule 1 CPC completely otiose and frustrate the basic purpose behind amendment of Civil Procedure Code, carried out in the year 2002....."

The Petitioner was represented by Advocate Vijay Kinge.

Facts of the Case

In the Suit filed by the Respondent no. 1 against the Petitioner and the remaining Respondents for declaration, injunction and other reliefs, the Respondents no.2-4 were proceeded ex-parte while the Petitioner opted not to file Written Statement within time prescribed by law, so right to file Written Statement of the Petitioner was closed.

Counsel for Petitioner contended that since the Written Statement was brought within 120 days of service of summons, the Trial Court ought to have taken a lenient view and ought to have condoned the delay in filing the Written Statement. He also contended that since the Petitioner had applied for certified copies pertaining to another litigation, which record was relevant for preparing the Written Statement, the delay ought to have been condoned.

Reasoning By Court

The Court at the outset noted that it is trite that even 90 days after service of summons, the court is not powerless to condone delay in filing the Written Statement, but that has to be done only in exceptional circumstances.

"In the present case, the circumstances set up by the petitioner to explain delay beyond 90 days from service of summons in filing the Written Statement is that petitioner had to obtain certified copies of documents from another litigation, which documents would show that the plaintiff no. 1 and plaintiff no. 2 did not have good relations, so there was no question of plaintiff no. 2 appointing the plaintiff no. 1 as attorney for the suit. Those documents were at the most a piece of evidence and not the facts to be pleaded in the Written Statement. The petitioner could have pleaded only to the extent that plaintiff no. 1 was not a lawful attorney of plaintiff no. 2 for filing of the suit. Besides, nothing prevented the present petitioner from taking inspection of the documents of the other suit in order to ensure that the Written Statement was filed in time, instead of waiting for certified copies. That being so, I am in absolute agreement with the learned trial court that the exercise of obtaining certified copies of the other litigation was only a ruse. In other words, this cannot at all be taken as exceptional circumstance to explain the delay in filing the Written Statement", the Court observed.

The Petition was accordingly dismissed.

Cause Title: Sh. Kewal Krishan vs. Sh. Gulshan Kumar & Ors.

Appearances:

Petitioner- Advocate Vijay Kinge, Advocate Digvejender Sharma

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