Shri Bhagat Singh vs Shri Hari Kishan

J.M. Malik, J.—Heard counsel for the parties. The suit was filed before the trial court by the plaintiff/respondent on 16th February, 2006. It was adjourned to 25th February, 2006 for the service of petitioner/defendant No. 1. The Court vide its order dated 25th February, 2006 for the service of petitioner/defendant No. 1. The Court vide its order dated 25th February, 2006 directed defendant No. 1 to file the written statement and listed the matter for 20th July, 2006. Learned counsel for the plaintiff/respondent moved an application for the early hearing which was dismissed on 21st April, 2006. However, it was further ordered that the defendant shall file written statement within the period of limitation as provided by the CPC.

The period prescribed by law for filing the written statement got expired on 25th May, 2006. Hence there was a total delay of about 54-55 days. Therefore, counsel for the petitioner moved an application for the condonation of delay. However, the same was dismissed by the trial court vide impugned order dated 30.07.2007. It was held that the defendant has failed to give any justification for such delay and therefore defendant No. 1 was not permitted to file the written statement.

Learned counsel for the petitioner submits that he was under the impression that he is to file the written statement on 20th July, 2006, date already fixed by trial court.

Counsel for the respondent on the other hand points out that even if the period of limitation is computed from 21st April, 2006 even in that eventuality there is some delay. The period of 90 days expired on 19th July, 2006. Hence there was delay of only 1 day. Counsel for the respondent vehemently argued that the order passed by the trial court does not suffer from any illegality or infirmity.

For the following reasons, I do not find myself amenable to the arguments advanced by the learned counsel for the respondent. I am of the considered view that since the period was granted by the Court itself, for that reason it is the sufficient ground for the condonation of delay. The litigant should not suffer for the mistake on the part of the Court. At the same time the court corrected its stand vide order dated 21st April, 2006. Had the petitioner been vigilant he should have filed the written statement within the leeway prescribed by law. The inaction on the part of the petitioner cannot be ignored.

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , the following observations were made. The provision providing for maximum period of 90 days for filing written statement is not mandatory and the court is not altogether powerless to extend the time even in the exceptionally hard cases. The rules of procedure are made to advance the cause of Justice and not to defeat it, construction of the rule or procedure which promotes justice and prevents miscarriage had to be preferred, the rules and procedure are handmaid of justice and not its mistress. The court, however, made it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature had fixed the upper time limit of 90 days. The direction of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.

In a recent authority reported in R.N. Jadi and Brothers and Others Vs. Subhashchandra, , the delay of two days in filing the written statement was condoned by the Hon''ble Supreme Court. Again, the Court itself had fixed the date for filing of written statement which was beyond the prescribed period. It was held:-

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit - an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt the general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey and Others Vs. Tarapada Dey and Others, , Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, , Mohammed Gazi Vs. State of M.P. and Others, and Mr. Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar and Others, .

The matter can be looked at from another angle. Undisputedly, the trial Court had granted time upto 8.6.2004 which undisputedly fell beyond 90 days. There is no dispute that the written statement was filed on 8.6.2004.

In the light of the above discussion, I condone the delay, permit defendant No. 1 to file written statement before the trial court subject to payment of Rs. 10,000/-, as costs, out of which 50% be deposited with the Delhi High Court Mediation and Conciliation Centre, UCO Bank Account 48852, within two weeks and balance 50% amount be paid to the respondent. The written statement already filed shall be duly taken note of by the trial court.

The petition stands disposed of in terms aforesaid.

Parties are directed to appear before the trial court on the date fixed.

A copy of this order be sent to the trial court. Copies of order be also given Dasti to the counsel for the parties.

CM No. 12523/2007

No further orders are required to be passed in this application in view of the disposal of the petition.

The application stands disposed of.

CM No. 12524/2007

Allowed, subject to all just exceptions.