Ashok Kumar Malhotra vs Additional District Judge, Chandra Kishore alias Chandra Mohan and Ram Kishore and Others

Narendra Kumar Jain, J.—Heard learned Counsel for the parties.

Plaintiff-respondent filed a suit for eviction and arrears of rent in respect of rented premises against the defendant-petitioner wherein summon of the suit was served upon the defendant on 30.04.2003 and he put his appearance on 24.05.2003, but written-statement was not filed by him in spite of number of opportunities granted to him. The matter was fixed before the trial court on 05.06.2004 and he filed another application to grant him an opportunity to file the written-statement, which was dismissed by the trial court on 05.06.2004. Thereafter the defendant-petitioner filed his written-statement along-with the application on 05.07.2004 to take the same on the record. The said application was dismissed by the trial court on 13.09.2004. Being aggrieved with the same, the present writ petition has been preferred on behalf of the defendant-petitioner with a prayer to set-aside the impugned orders dated 05.06.2004 and 13.09.2004 passed by the trial court and to take his written-statement on the record.

The learned Counsel for the petitioner contended that on 04.06.2004 the application filed by the petitioner under Order 11 Rule 18 of the CPC was dismissed and thereafter only one day''s time was granted to him to file written-statement, which cannot be said to be sufficient time, therefore, he moved an application 05.06.2004 to grant reasonable time to file the written-statement but the same was wrongly dismissed by the trial court on 05.06.2004. He contended that he filed the written statement in the trial court along-with the application on 05.07.2004 which should have been taken on the record by the trial court. He further contended that so far as the delay in proceeding is concerned, the opposite party could have been compensated by way of costs.

The learned Counsel for the plaintiff-respondent contended that the suit was filed on 04.01.2003 and the defendant was served with a summon of plaint way back on 30.04.2003. He put his appearance on 24.05.2003 and the matter was fixed for filing the written-statement, and since then he avoided filing of the written-statement. He also contended that as per the amended provisions of the Code of Civil Procedure, it was a duty of the defendant to file the written-statement within a period of 90 days, but even after grant of time he did not file the written statement and only for the purpose of delaying the matter he moved the application under Order 11 Rule 18 of the CPC, which was dismissed on 04.06.2004, but still the trial court granted one more opportunity to file the written-statement by the next date, but the same was not filed and another application was moved for grant of time, which was rightly dismissed by the trial court. He further contended that the order dated 13.09.2004 is self-speaking and it will show that the trial court has rightly rejected the application of the petitioner, therefore, the writ petition may be dismissed.

I have considered the submissions of learned Counsel for the parties and examined the impugned orders dated 05.06.2004 and 13.09.2004 (Annexure-4 and 6).

The petitioner is a defendant-tenant and he is facing proceedings in a suit for eviction and arrears of rent, filed by the plaintiff-respondent, therefore, he is delaying the eviction proceedings for one reason or the other. The counsel for the petitioner does not dispute that he was served with a summon of the suit way back on 30.04.2003 and he did not file his written-statement within a period of 90 days. He also does not dispute that on 04.06.2004, while rejecting his application under Order 11 Rule 18 of the CPC, one more opportunity was granted to him to file written-statement by next date but it was not filed and he moved an application for grant of time, which was dismissed on 05.06.2004. The trial court, vide its order dated 13.09.2004, has considered the facts and circumstances of the present case including the provisions of the CPC (Amendment) Act, 2002, which came into force with effect from 01.07.2002. There is no dispute in between both the parties that the defendant did not file written-statement within a period of 90 days. He was granted time on 04.06.2004 but the defendant did not file written-statement on the next date also and only on 05.07.2004 he filed the written-statement along-with an application.

After considering the submissions of learned Counsel for both the parties as well as the impugned orders, I find that the trial court has rightly rejected the application filed by the petitioner vide impugned orders dated 05.06.2004 and 13.09.2004, but, in the interest of justice, I think it fit and proper to direct the trial court to take on the record the written statement filed by the petitioner on 05.07.2004 on payment of costs of Rs. 4,000/-.

Consequently, the writ petition is allowed. The trial court is directed that the written-statement filed by the defendant-petitioner on 05.07.2004 may be taken on the record and the case may now proceed further in accordance with the law. The defendant-petitioner will pay a sum of Rupees four thousand as costs to the plaintiff-respondent within a period of one month.

It is made clear that in case the amount of costs, as awarded, is not paid within the stipulated period, as mentioned above, then the written-statement of the defendant will not be taken on the record.

The matter has already been delayed, therefore, the learned Counsel for the plaintiff-respondent contended that the trial court may be directed to expedite the hearing of the suit. The prayer appears to be reasonable. The trial court is directed to expedite the hearing of the suit and will make effort to complete the trial of the suit preferably within a period of one year.

There will be no order as to costs so far as this writ petition is concerned.