Order 9

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. RAMESH KUMAR-II,
ADDITIONAL DISTRICT JUDGE-01, SHAHDARA
DISTRICT, KARKARDOOMA COURTS,
DELHI
CS No.542/2023
In the matter of:-
Smt. Rita Tiwari
..........Plaintiff
Versus
Smt. Santosh Sharma & Ors.
…....Defendants
30.03.2024
ORDER
Vide this order, I shall dispose of the application of
defendant under Section 151 of CPC for recalilng the order
dated 21.11.2023 and for taking on record the written statement
and also to condone the delay in filing the written statement.
The plaintiff has filed reply to the present application
denying all the assertions made therein and has prayed for
dismissal of the said application.
Arguments on this application were heard on behalf of
both the parties.
During the course of arguments, ld. Counsel for defendant
submitted that the process/summon of the captioned suit was
received by the defendants on 05.10.2023 in which the date of
hearing was written as 07.10.2023 and accordingly the
defendants engaged their counsel Sh. Deepak Kumar, Advocate
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who filed his Vakalatnama on that date fixed i.e. 07.10.2023 and
matter was adjourned for 21.11.2023, however due to some
personal exigencies, the earlier counsel could not be able to
defend/proceed with the case and he informed the defendants on
18.11.2023. Ld. Counsel for defendants further submitted that
accordingly the defendants finding no other way engaged the
present counsel only 21.11.2023. Ld. Counsel for defendants
further submitted that the present counsel after getting the
Vakaltnama signed from the defendants filed the same on the
same day and also sought time to file the written statement within
a week as he has been engaged on the same day and it requires
some time to go through the cas file but the same has been
declined by this court rather close the right to file the written
statement and matter has been adjourned for PE on 19.12.2023.
Ld. Counsel for defendants further submitted that the defendants
have no intention not to follow the due procedure of law rather
they are duty bound to do so but the written sttement could not be
filed within 30 days due to the reason as explained above which
is beyond their control. Ld. Counsel for defendants further
submitted that even otherwise the defendant no.1 is a widow
senior citizen lady having multiple old aged diseases and she
remains ill and it is the defendant no.2 who is looking after her
old aged mother. After making abovesaid submissions ld.
Counsel for defendants requested to recall the order dated
21.11.2023.
Per contra, ld. Counsel for plaintiff vehemently opposed
the present application, submitting that the present application is
not maintainable in view of the law laid down by the Hon’ble
Apex Court laying down guideline that to expedite the hearing,
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the written statement will be filed within the stipulated period
and no concession will be granted to the litigant to make the
mocery, to the judicial proceedings and system delaying and
prolonging the expedite disposal of the cases. Ld. Counsel for
plaintiff further submitted that there is no any plausible reason
and explanation preferred by the defendants, rather, the irrational
and chicanery reason has been given by the defendants which is
totally ostentation, thus the application is devoid of merits and
liable to be rejected. Ld. Counsel for plaintiff further submitted
that the order dated 21.11.2023 is reasoned order passed by this
court and as such, the application having no reason accepatable
and sustainable in the eyes of law, is liable to be rejected with
exemplary cost. Ld. Counsel for plaintiff further submitted that
the application is not supported with the documents to
corroborate and ascertain the facts contended in the application
be assumed to be correct and as such in the absence of any
supporting documents, the application appears on its face to be
bogus and frivolous and thus, liable to be rejected. Ld. Counsel
for plaintiff further submitted that the application has not filed by
the defendants under the appropriate provision of law, further the
leave of the court has not been sought in advance by the
defendants for extension of the time to file the written statement
as such, in the absence of leave of the court, the written statement
cannot be taken on record. After making aforesaid submissions,
ld. Counsel for plaintiff requested to dismiss the application of
the defendants with heavy costs.
I have considered the submissions made on behalf of the
parties.
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A perusal of record shows that the defendants were served
with summons of the suit on 05.10.2023. The defendants had to
file WS within 30 days from the date of service. However, they
did not file written statement within stipulated period and
ultimately opportunity of filing WS by the defendants was closed
vide order dated 21.11.2023.
In the present case the defendants took the stand that on
21.11.2023, they engaged new counsel as their previous counsel
informed them on 18.11.2023 that he could not be able to
defend/proceed with the case due to personal exigencies. This
court is of the view that engagement of a new counsel does not
extend the time to file the WS. Even otherwise the contention of
the defendants do not appear to be bonafide or plausible, since
the previous counsel informed the said fact to the defendants on
18.11.2023, whereas time to file WS has already been elapsed on
04.11.2023.
There is no other plausible reason explained by the
defendants to allow the present application. The defendants have
also not filed their WS so far to show their bonafide. Therefore,
there is no merits in the application of the defendants and same
deserves dismissal outrightly. However, this court is the opinion
that it would always be in the interest of justice if the matter is
decided on merits instead of technicalities and delay can be
condoned subject to cost.
Therefore, in view of the above discussion, the present
application of the defendants is hereby allowed, however subject
to cost of Rs.25,000/-, out of which Rs.10,000/- be deposited
with Shahdara Bar Association, KKD Court, Delhi and rest of
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Rs.15,000/- be paid to the plaintiff. Accordingly, order dated
21.11.2023 against the defendants is hereby set aside.
Defendants are directed to file WS within 15 days from
today with advance copy to opposite party.
Defendants are directed to place on record original receipt
of depositing the cost of Rs.10,000/- with Shahdara Bar
Association on or before next date of hearing. It is made clear
that defendants shall not take any exemption of cost of
Rs.25,000/- in income tax.
Application of the defendants u/s 151 CPC stands disposed
off accordingly.
(Typed to the dictation directly, corrected and
pronounced in open court on 30.03.2024).
(RAMESH KUMAR-II)
ADDL. DISTRICT JUDGE-01
SHAHDARA DISTRICT
KARKARDOOMA COURTS
DELHI
CS No.542/2023 5
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