Order 12

Order Details: COPY OF ORDER
Pdf Text: Civil Suit No. 221 Of 2024
Satish Kumar Vs. Ashwani Kumar Anr.
10.02.2026. At 04:45 PM
Present: None.
ORDER
1. Vide this common order, I shall dispose of two applications
filed by defendant nos. 1 and 2 i.e. one application under Order VIII
Rule 1 read with Sections 148 and 151 of the Civil Procedure Code,
1908
(hereinafter referred to as “CPC”) seeking recall of order
dated 28.09.2024 whereby their right to file written statement was
closed, and permission to place written statement on record; and
another application under Section 5 of the Limitation Act, 1963
seeking condonation of delay in filing written statement.
2. Arguments were heard at length on behalf of parties.
3. Ld. Counsel for defendants contended that the defendants are
aged persons suffering from serious ailments. Defendant no. 1 is an
ex-serviceman who has undergone multiple heart surgeries, while
defendant no. 2 suffers from kidney disease and requires dialysis
thrice a week.
4. He further contended that after receiving summons,
defendants engaged a counsel who failed to appear before the
Court, compelling defendant no. 1 to appear in person. The lapse
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was attributable to negligence of earlier counsel, and defendants
should not be penalized for the same.
5. He further contended that the defendants had taken a friendly
loan of Rs. 55,00,000/- from plaintiffs for the marriage of their
daughter, secured by an agreement and deposit of property
documents. Defendants have already repaid Rs. 31,57,500/- in cash
instalments, leaving only Rs. 23,42,500/- outstanding. Moreover,
the plaintiffs refused to issue receipts, withheld property
documents, and threatened them, thereby acting with mala fide
intent. At the end, it was prayed that the order dated 28.09.2024 be
recalled, delay may be condoned, and written statement may also be
taken on record to enable proper adjudication of the dispute.
6.
Per contra, Ld. Counsel for plaintiffs vehemently opposed the
aforesaid applications and contended that defendants were duly
served with summons in April/May 2024, appeared on 10.07.2024,
and were supplied with complete paper book. Despite repeated
opportunities, defendants failed to file written statement within the
statutory period of 30 days or even within the extended period of 90
days.
7. He further contended that the order dated 28.09.2024 striking
off defence was passed under Order VIII Rule 10 CPC, which can
only be assailed before the Hon’ble High Court. The present
application under Sections 148 and 151 CPC is not maintainable.
8. He further contended that the defendant no. 1 is himself a
lawyer, has been appearing regularly, and even admitted liability on
03.06.2025 by seeking to pay the amount in six instalments before
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the Court. The subsequent application filed on 18.09.2025 claiming
repayment of the entire loan is contradictory and mala fide.
9. He further contended that the negligence of earlier counsel
and medical ailments cannot justify delay of nearly one year, and
that the present applications are filed only to delay proceedings.
10. I have given my thoughtful consideration to the rival
contentions made by the parties and carefully perused the entire
material available on record.
11. Before proceedings further, it is imperative to mention herein
that Order VIII Rule 1 CPC prescribes filing of written statement
within 30 days of service of summons, extendable up to 90 days
with sufficient cause.
12. In the present case, defendants were duly served, appeared
before the Court, and were supplied with complete paper book.
Despite repeated opportunities, they failed to file written statement
within the statutory period.
13. The application under Section 5 of the Limitation Act, 1963
is misconceived. The time limit for filing written statement is
governed specifically by Order VIII Rule 1 CPC, and Section 5 of
the Limitation Act, 1963; does not apply. Accordingly, the
application under Section 5 of the Limitation Act is dismissed as
not maintainable and disposed of.
14. As regards the application under Order VIII Rule 1 read with
Sections 148 and 151 CPC, it is true that defendants have failed to
show convincing reasons for delay. Mere illness and negligence of
counsel cannot justify such prolonged inaction, particularly when
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defendant no. 1 is himself a lawyer and was appearing regularly.
Their contradictory conduct further weakens their case.
15. However, at the same time, it is a settled principle of law that
“procedure is the handmaid of justice” and that the procedural laws
are meant to facilitate and not to obstruct the cause of justice.
Likewise, substantive rights should not be defeated on technical
grounds. Denial of an opportunity to file written statement,
especially where rights are to be finally adjudicated, can result in
serious miscarriage of justice and violation of the principles of
natural justice. The object of the rules of procedure is to secure the
ends of justice and not to thwart them. When substantial justice and
technical considerations are pitted against each other, the cause of
substantial justice deserves to be preferred. The Hon’ble Apex
Court has consistently held that unless mala-fide intent or gross
negligence is evident, courts should lean towards deciding cases on
merits rather than shutting out defence on technicalities.
16. In the instant case, though defendants’ conduct is far from
diligent, outright denial of opportunity to file written statement
would result in irreparable prejudice. The suit is at initial stage and
issues are yet to be framed. The balance of convenience lies in
allowing defendants to contest, albeit subject to heavy costs to
compensate plaintiffs for delay and inconvenience.
17. In light of the aforesaid discussion and findings, the
application under Order VIII Rule 1 read with Sections 148 and 151
CPC is hereby allowed, subject to imposition of heavy costs of Rs.
35,000/- upon defendants no. 1 and 2. Out of this, Rs.20,000/- shall
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be paid to the plaintiffs on or before the next date of hearing, and
15,000/- shall be deposited with the Shahdara Bar Association.
Defendants shall place proof of deposit on record on or before the
NDOH.
18. Accordingly, the order dated 28.09.2024 whereby right to file
written statement by defendants were closed, is hereby recalled.
Delay in filing written statement is condoned, and written statement
of defendants no. 1 and 2 shall be taken on record, subject to
payment of aforesaid costs.
19. Replication, if any be filed within four weeks with an
advance copy to opposite party.
20. Parties are also directed to file affidavits of A/D of
documents and proposed issues within four weeks with an advance
copy to each other.
21. To come up for payment of cost, replication, A/D of
documents and framing of issues on 29.04.2026.
(Gaurav)
District Judge-01/ SHD
KKD/Delhi/10.02.2026
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