Ritesh Ranjan, S/o Sri Dinesh Sharma vs Shubham Construction Pvt. Ltd

Gautam Kumar Choudhary, J

The contesting defendant is before this Court against the order dated 02.07.2024 passed in Original Suit No. 291/2022, whereby and whereunder, he has been debarred from filing the written statement.

The plaintiff filed the suit on 06.06.2022, inter alia, impleading the defendant for a decree that there did not exist any legally enforceable agreement to sell in between the plaintiff and defendant no. 1 with respect to Schedule-A of the property. A further prayer has been made for declaring sale deed executed in 2015 executed under the provisions of Jharkhand Apartment Flat Ownership Act, 2011 to be null and void.

The dispute in nutshell is between the petitioner who is the purchaser of Flat No. 601, Raj Palace Apartment, North of Tagore Hill and the builder who is the plaintiff in the case.

The petitioner/defendant appeared before the Trial Court on 08.02.2023 and the copy of the plaint was served to him on 15.03.2023. The Trial Court debarred the petitioner from filing his written statement on 20.07.2023 as it was beyond 90 days from the date of service of notice on him in the suit. The petitioner filed a recall petition on 18.09.2023 which was disposed of by order dated 10.01.2024 with a direction to file his written statement within two dates along with a cost of Rs.1800/-. Despite the indulgence of the Court, since the written statement was not filed, on 02.07.2024 the impugned order has been passed and the written statement, filed on the said date, was not accepted.

It is submitted by learned counsel for the petitioner that Order VIII Rule 1 of CPC is not mandatory but directory in nature as settled by the Hon’ble Apex Court in (2005) 4 SCC 480 (Kailash Vs. Nanhku & Ors.) and (2005) 6 SCC 344 (Salem Advocate Bar Association Vs. Union of India). It is argued that the trial has not commenced, therefore, delay, if any, will not prejudice the plaintiff. Further, after extension of time was allowed for filing written statement, but the same could not been filed, because the power of attorney holder (Dinesh Sharma) due to his age-related cardiac ailment kidney disease etc. was shifted to Mumbai for treatment and was under complete bedrest and after he recovered only then the written statement could be filed. At present, the petitioner resides in Germany and he will be seriously prejudiced on being debarred from filing the written statement.

Learned counsel for the opposite parties has defended the impugned order and submitted that in all there is delay of more than 550 days from the date of appearance of the defendant before the Trial Court in filing the written statement. Despite extension of time being granted by the Trial Court, still it could not be filed, thereby the trial has been delayed by almost three years.

It is also submitted that the trial has commenced and the examination in chief on affidavit on behalf of the plaintiff on 18.09.2023 but the cross examination has not commenced on behalf of the defendant as a result, trial has been delayed deliberately.

Having considered the submissions advanced on behalf of both sides, I find force in the argument on behalf of the petitioner that the provision under Order VIII Rule 1 of CPC is not mandatory in nature and is simply directory. If the defendant is able to show reasonable ground which prevented it to file the written statement, then it can certainly be a ground for condoning the delay, subject to payment of cost. There are two factors which have not been disputed. One is that the petitioner is residing in Germany and the case is being prosecuted here by the power of attorney holder who is the father aged 65 year. It has been contended on behalf of the petitioner that the father was suffering from age related illness for which the written statement could not be filed with all promptness.

Under the circumstance, the impugned order is set aside and the petition for allowing the written statement of the defendant is allowed, subject to payment of cost of Rs.10,000/- to be deposited to the plaintiff.

This Civil Misc. Petition is disposed of. Pending I.A., if any, also stands disposed of.