Interim Order 9

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS SCJ187/24
Balraj Rana And Ors Vs. Om Prakash And Ors
ORDER
17.05.2025
1. Vide this Order, I shall decide application under Order VIII Rule 1 CPC
read with section 151 CPC filed on behalf of Defendants no. 8-
10,17,20-23,26-29, herein after called ‘applicants’.
2. It is stated on behalf of the applicants that the applicants were served
in the month of March, 2024. Thereafter, since the applicants did not
possess complete documents, certified copy of certain documents were
applied for. It is also submitted that on 27.04.2024, Ms Aanchal
appeared in the matter as a proxy counsel, who was not appointed by
any of the applicants and the present counsel was engaged thereafter,
who appeared before the court on 23.09.2024. It is further contended
that certified copy of Khasra Girdawari was received only on
25.10.2024. It is further submitted that there are total 31 defendants in
the present case, who are relatives of each other and therefore, WS
could not be filed within stipulated time.
3. Per contra, it is submitted on behalf of the non-applicants/ Plaintiffs
that by way of application under Order VIII Rule 1 CPC, the applicant
is trying to seek recall of order dated 25.07.2024, whereby the right to
file WS was closed, which is not permissible. It is further submitted
that as per the documents annexed with the WS, it is clear that
application to obtain certified copy was filed on 25.10.2024, and the
same were received on the same day. It is further submitted that the
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application is meritless, and deserves to be outrightly dismissed with
costs.
4. Arguments heard. Record perused.
5. Firstly, the court will deal with the plea of the non-applicants/ Plaintiffs
that the present application is not maintainable as by way of the present
application under Order VIII Rule 1 CPC, the applicant is seeking
recall of order dated 25.07.2024. It is a settled law that merely because
wrong provision is mentioned in the application, it does not bar the
court to grant appropriate relief as long as the court is empowered to
grant such relief. The said view is fortified by the judgment of Hon’ble
Apex Court in the case titled as Pruthvirajsinh N Jadeja(D) By Lrs. v
Jayeshkumar Chhakaddasm Shah.1 It is not the argument that the court
does not possess such power, but only contention is that the application
is filed under wrong provision of law. Thus, in view of the settled law,
the contention of the non-applicants, in the opinion of the court, is of no
consequence and is dismissed.
6. Now, coming to the submissions of the applicants. As per the record,
the applicants were duly served on 19.03.2024, and the WS was filed
on 07.12.2024. Thus, there is a delay of almost 8 months in filing of
WS.
7. It is contended by the applicants that a counsel namely Ms. Aanchal
had appeared without authorization and appeared without any
instruction. The same is of no consequence as the applicants were duly
served on 19.03.2024 and were fully aware of the pendency of the
1 [2019 (9) SCC 533],
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present proceedings. The present contention appears to this court to be
totally frivolous as time to file written statement starts from the date of
appearance, and even if the contention that someone without
authorization appeared on behalf of the defendants is taken to be true, it
is of no aid to the applicants as it does not extend the stipulated time to
file WS.
8. It is further submitted on behalf of the applicants that delay was caused
as time was taken in obtaining certified copy and arranging other
documents. It was further argued that since defendants/ applicants are
relatives and there are multiple applicants, thus, written statement could
not be filed in time. Per contra, it was submitted on behalf of the non-
applicants that the same is a dilatory tactic and it clear from the WS and
documents annexed therewith that application to obtain certified copy
was filed on 25.10.2024. During the course of arguments Ld. Counsel
for applicants/ plaintiffs Sh. Sunil Chauhan was asked as to how the
date of application to obtain certified copies was ascertained, however,
he failed to state the same.
9. The law with respect to applications for condonation of delay in filing
WS is laid down in ample of judgments. It is a settled law that where
there is a cogent reason put forth for the delay, the court shall take a
liberal approach and shall condone the delay, and where the delay could
be compensated in costs, appropriate costs shall be imposed upon the
defendant in order to compensate the plaintiff. Furthermore, a matter
shall be decided on merits and not shun out on technicalities. Reliance
in this regard can be made to the judgment of the Hon’ble Supreme
Court of India titled as Kailash v. Nankhu2.
2 2005 (4) SCC 480
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10.Since, in the present case, there are a large number of defendants, out of
which 12 defendants are applicants in the present application, in the
opinion of the court, it would have required time to co-ordinate and
compile the facts, and further, a large number of documentation has
been relied upon, which is time taking and cumbersome, therefore,
delay is condoned. However, a cost of Rs. 12,000/- is imposed upon the
applicants for causing delay in the matter, payable to the Plaintiffs.
11. Application is accordingly disposed of.
(ANKITA BHATIA)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/17.05.2025
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