DESH RAJ V. BALKISHAN (D) THROUGH PROPOSED LR MS. ROHINI
(The time for filing the written statement by the appellant could not be extended)
- Bench: Hon'Ble The Justice, B.R. Gavai, Surya Kant
Facts:
The appellant and the respondent are brothers and own one floor each of ancestral property.The ground floor was possessed and owned by the respondent, whereas the first floor was in the name of the appellant.
It has been claimed that in February 2017, the respondent approached the appellant offering to purchase the first floor of the ancestral property. Subsequently, an agreement to sell was entered into between the parties for total consideration of Rs 7.5 lakhs, of which an amount of Rs 1 lakh was paid as earnest money to the appellant. This agreement was subsequently not honoured and a legal notice was served upon the appellant by the respondent on 13.04.2017, calling upon him to accept consideration and perform his part of the contract.
Claiming that the appellant was attempting to sell the suit property to third parties, the respondent later approached the Civil Court praying for a decree of specific performance of the agreement to sell dated 17.03.2017 by directing the appellant to receive the balance sale consideration and execute/register the sale deed in favour of the respondent. Additionally, the respondent sought to permanently injunct the appellant from alienating the property in favour of any third party.
Alternatively, recovery of damages of Rs 2 lakhs with pendent lite and future interest @ 18% per annum was sought by the respondent.
The appellant was served on 01.05.2017, and he appeared through counsel on 15.05.2017 wherein the Civil Court granted the appellant 30 days to file his written statement. On 17.07.2017, noting that no written statement had been filed till then, the Court granted the appellant a final opportunity of two weeks to file his written statement. On 18.09.2017, the Court observed that despite the last opportunity having been accorded more than two months ago, no written statement had been filed. Nevertheless, the Court granted another final opportunity, subject to payment of Rs 3,000 costs and the matter was posted for 11.10.2017. On this date, appellant sought multiple pass overs but his Counsel did not appear before the Court. After noticing that despite several opportunities (including one beyond the maximum period of 90 days) the appellant had failed to file any written statement or deposit costs and that the matter could not be adjourned repeatedly, the Civil Court thus closed the appellant’s opportunity of filing written statement and struck off his defence. Even on the next hearing on 03.11.2017, the appellant’s Counsel did not appear or supply a copy of the written statement to the respondent, as noted in the Trial Court’s daily order.
The aggrieved appellant approached the High Court in revision, which noted how he had been granted repeated opportunities and yet the written statement was not filed within 120 days of notice. Relying upon the order of its coordinate bench in Oku Tech Pvt Ltd v. Sangeet Agarwal and Others wherein it was held that there was no discretion with courts to extend the time for filing the written statement beyond 120 days after service of summons, the Delhi High Court summarily dismissed the petition.
Issue:
Whether the time for filing the written statement by the appellant could be extended
Contentions raised by the Appellant:
The appellant put forth his contention that the deadline of 90 days could be relaxed keeping in view the facts and circumstances of a case and argued that he himself had personally appeared on all dates of hearing and the lapse was on the part of his Counsel, due to which written statement could not be filed. The appellant claims that severe prejudice would be caused to him if the delay is not condoned for he would be left defence less in the civil suit. He accordingly seeks that this Court invoke its inherent discretion under Order VIII Rule 1 of CPC and grant one final opportunity to file his written statement.
Contentions raised by the Respondent:
The respondent contended that the appellant had multiple chances had already been granted to the appellant by the Civil Court, including opportunities beyond the maximum statutory period of 90 days as provided for filing of written statement under Order VIII Rule I of CPC. It was argued that continued failure to adhere to the multiple deadlines set by the Civil Court and violation of Court directions, was evidence of gross negligence on part of the appellant at best, and a deliberate delaying tactic and abuse of the process of law at the worst.
Judgement:
It was held by the court that the time for filing the written statement could not be extended as 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 was 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.
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