Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 13 CS SCJ 131/23
LALITA PANDEY Vs. SHWETA PANDEY
06.07.2023
Present: Sh. Utsav Pandey, Ld. Counsel for plaintiff.
Ms. Suman Satyal, Ld. Counsel for defendant.
WS filed along with application for condonation of delay
by the Defendant. Further, an Application u/O VII R 11 CPC has also
been filed by the Defendant. Copy of the same has been supplied to the
opposite side.
At this stage, an Application u/O VIII R 10 CPC has been
filed on behalf of the plaintiff. Copy of the same has been supplied to
the opposite side.
Submissions heard on application for condonation of delay
in filing of the WS. Ld. Counsel for the Defendant has stated that since
the complete set of documents was not supplied to the Defendant and
coupled with the fact that other cases are also ongoing between the
Defendant and son of the Plaintiff, WS could not be filed within time.
The application has been vehemently opposed by Ld. Counsel for the
plaintiff.
The law as regards condonation of delay in filing of the WS
is no longer res integra. Order VIII R 1 CPC directs the Defendant to
file the WS within a period of 30 days from the date of service of
summons, which may be extended upto a period of 90 days for reasons
to be recorded in writing. The question as to whether the written
statement can be taken on record beyond the period of 90 days has been
taken up and decided by Hon’ble Apex Court in Kailash Vs. Nankhu
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CS SCJ 131/23
LALITA PANDEY Vs. SHWETA PANDEY
Appeal (Civil) 7000/2004, DOD 06.04.2005 wherein the Hon’ble Apex
Court held that in except certain exceptional circumstances and for
reasons to be recorded in writing, the written statement filed beyond the
period of 90 days can be taken on record. However, the extension of
time can only be allowed if the circumstances occasioning the delay
were exceptional and beyond the control of the Defendant and the same
would cause grave injustice if the time was not extended.
Applying the aforesaid ratio to the facts of the present case,
the Defendant was duly served on 20.02.2023, as reflected in order sheet
dated 04.03.2023. Hence, the WS ought to have been filed by
22.03.2023. The said period, in consonance with the proviso of Order
VIII R 1 CPC could have been extended upto 22.05.2023. WS has been
filed today after a delay of almost 135 days from the date of service of
summons. The reason furnished by the Defendant was that the Plaintiff
had not supplied the complete set of documents to the Defendant as well
as the fact that other litigation was ongoing between the son of the
Plaintiff and the Defendant. As regards the first reason that the
documents were not furnished by the Plaintiff to the Defendant, the
same is mutually contradictory to the conduct of the Defendant whereby
she has filed the WS today. If the documents had indeed not been
furnished and the same has been used as a reason for not filing of the
WS, it does not appeal to reason that the WS gets subsequently filed
without such furnishing of documents. In the alternative, if the WS has
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CS SCJ 131/23
LALITA PANDEY Vs. SHWETA PANDEY
been filed after the supply of documents by the Plaintiff, the Defendant
has failed to mention the date of supply of the documents by the
Plaintiff. Hence, the first reason furnished by the Defendant does not
deserve to be accepted. As regards the second reason regarding other
pending litigation, the same also deserves to be rejected because by no
stretch of imagination, the pendency of other litigation prejudices the
filing of written statement in a separate litigation between the parties.
Hence, in light of the aforesaid discussion and reasons, the
Defendant has failed to show the existence of exceptional circumstances
warranting the condonation of delay in filing of the present WS.
Accordingly, the application at hand is rejected and the WS of the
Defendant is not taken on record.
Put up the matter for filing of reply to application u/O VII R
11 CPC by the Plaintiff / arguments on application u/O XXXIX R 1 and
2 CPC / PE on 31.08.2023.
Interim orders, if any, to continue till NDOH.
(PRITU RAJ)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/06.07.2023
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