Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS SCJ 435/23
VIKAS AGGARWAL Vs. MADESHWARI
12.09.2024
Present : Plaintiff in person with counsel Sh. Amit Talwar.
Defendant in person with counsel Sh. Manav Bhartia and
Sh. Kuber Kapoor.
(1) WS along with an application under section 5 Limitation Act
seeking condonation of delay of 130 days in filing WS and another
application under section 151 CPC seeking recall of order dated
16.12.2023 whereby the defence of the defendant was struck off was
filed by the defendant on LDOH.
(2) Reply to the said application has been filed by ld counsel for the
plaintiff today.
(3) Arguments on the application heard.
(4) It is the submissions of the defendant that said Ms. Ranya @
Rainyer who submitted herself to be the sister in law of the defendant to
the process server is actually the daughter of one Sh Manikkam who is
in possession of the suit property while the defendant herslef is residing
at the separate residence on rent. It is further submitted that the said Ms.
Ranya informed the defendant of the summons only on 07.08.2023 i.e.
two days before the date of appearance that was 09.08.2023. It is
submitted that the defendant herein is illiterate and is suffering from
depression and anxiety and also have no understanding of law. It is
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submitted that she was also admitted for five days in Aruna Asif Ali
Hospital in the month of September, 20123. It is further submitted in
the month of October, 2023, the defendant applied for loan from the
concerned bank which is yet to be provided. It is therefore submitted
that the delay on part of the defendant in filing the WS is neither
intentional nor deliberate. The counsel for the defendant has relied upon
the judgment of Hon’ble Supreme Court in Kailash vs. Nanhku & Ors.,
(2005) 4 SCC 480 and Bharat Kalra vs. Raj Kishan Chabra, 2022 SCC
Online SC 513, in support of his submissions.
(5) Per contra, it is submitted by ld counsel for the plaintiff that the
application of the defendant is without any merit and the defendant is
only trying to delay the proceedings of the present case since she is
conveniently enjoying the possession of the suit property without
paying the agreed rent.
(6) Perusal of record reveals that defendant was served through one
Ms. Ranya who is stated to be the sister in law of the defendant on
02.06.2023 and the WS has been filed by the defendant only on
15.04.2024 i.e. after almost 10 months of the service of the summons.
(7) Now even if the submissions of the defendant that the said Ms.
Ranya is not the sister in law of the defendant is assumed to be true,
record reveals that the defendant appeared in person on 09.08.2023 and
she was well apprised of the present matter as well as her right to avail
a counsel from legal aid, if applicable. The defendant was then granted
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extended time of 30 days to file the WS. However, the defendant failed
to do so even till 15.04.2024.
(8) Now while the defendant has tried to explain the delay with the
submission that the defendant was suffering from various medical
conditions (supported by medical documents) and that she was also
hospitalized for the brief period and that she attempted to secure certain
documents from the concerned back which are yet to be provided, this
court is of the view that the circumstances so submitted by the
defendant are insufficient to explain the delay of almost 10 months in
filing the WS. The submissions made do not sufficiently explain as to
how the defendant was prohibited from filing the WS within the
prescribed period of limitation.
(9) In such circumstances, the present appreciation is disposed of as
dismissed being non meritorious.
(10) Now to come up for PE on 18.12.2024.
(Amardeep Kaur)
ACJ/ARC (North-West)
Rohini Courts, Delhi/12.09.2024
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