Anisha Jain vs H.T. Media Solution

Rajneesh Kumar Gupta, J

This hearing has been conducted through hybrid mode.

The present petition has been filed on behalf of the petitioner/ defendant under Article 227 of the Constitution of India, 1950 read with Section 151 of Code of Civil Procedure, 1908, assailing the order dated 19th July, 2022 and 14th February, 2023 passed by the learned Trial Court in case bearing No. CS (COMM) 284/2022.

At the outset, learned Counsel for the petitioner submits that he is pressing the present petition only in respect of the impugned order dated 19th July, 2022, whereby the defence of the petitioner has been struck off.

Heard. Record perused.

Learned Counsel for the respondent/plaintiff has filed copies of the order sheets of the trial court and the same are taken on record.

Learned Counsel for  the petitioner has argued that the learned  trial court  has  passed  the  impugned  order  dated  19th July,  2022  on  the  basis  of surmises and conjectures. It is contended that as the petitioner was not supplied  with  a  copy  of  the  plaint  along  with  the  annexures  and  therefore, petitioner was unable to file the written statement within a stipulated time.

Per contra, learned Counsel for the respondent has argued that there is no  infirmity  in  the  impugned  order  and  the  present  petition  has  been  filed only to delay the trial proceedings. Accordingly, it is prayed that the petition be dismissed.

Order dated 28th April, 2022 of the trial court reads as under:

“Present: Sh. Nitin Raj, Ld. Counsel for Plaintiff. None for Defendant.

As per report of Process Server, defendant was served by e-mail on 23.03.2022.

Parties are to file pleadings as per order dated 15.03.2022.

Fixed 27.05.2022 for further proceedings.”

Order dated 27th May, 2022, of the trial court reads as under:

“Present: Sh. Ankur Yadav, Ld. Junior Advocate for Plaintiff.

None for Defendant.

Defendant was served by e-mail on 23.03.2022. Parties were to file pleadings as per order dated

15.03.2022.

No written statement filed by defendant till date. Fixed 19.07.2022 for further proceedings.”

Impugned Order dated 19th July, 2022, reads as under:

“Present: Sh. Nitin Raj, Ld. Counsel for Plaintiff.

Sh. Vijay Kumar, Ld. Counsel for Defendant has filed his vakalatnama.

Heard. Perused.

Defendant was served by e-mail on 23.03.2022. Parties were to file pleadings as per order dated

15.03.2022.

No written statement has been filed by defendant till date.

No application has been filed on behalf of defendant for seeking  extension  of  30  days  time  period  for  filing  the written statement.

Defence of defendant is struck off.

Fixed 22.08.2022 for plaintiff evidence.”

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 bringing in their wake certain amendments to the Code of Civil Procedure.

In Order 8 Rule 1, a new proviso was substituted as follows:

“Provided that where the defendant fails to file the written  statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court  shall  not allow the  written  statement  to  be taken on record.”

It is evident from the record that the petitioner has been served on 23rd March, 2022. Despite service, no one appeared on behalf of the petitioner on 28th April, 2022 and 27th May, 2022. On 19th July, 2022, when Counsel for the petitioner has appeared, no plea was taken by him before the learned trial court regarding non-supply of the plaint and annexures. The said plea as taken by the petitioner is an afterthought as it has been taken only after the defence was struck off.

The petitioner has not filed the written statement within a period of 30 days as provided under the aforesaid order i.e., Order 8 Rule 1. The petitioner has not filed any application and has also not made any request to the trial court seeking extension of time in filing the written statement. Accordingly, this Court does not find any infirmity in the impugned order dated 19th July, 2022 which has been passed in accordance with law, and the same is upheld. The  present  petition is  disposed  of  as  being  devoid of  any merits.  Pending application (s), if any, also stand disposed of.