Parminder Singh vs Jagdev Singh

Dharam Chand Chaudhary, J.—The challenge herein is to the order dated 23.3.2013 passed by learned Civil Judge (Junior Division), Court No. 2, Paonta Sahib, District Sirmaur in an application under Order 9 Rule 7 CPC, registered as CMA No. 204/6 of 2012 (Civil Suit No. 4/1 of 2012), dismissing thereby the said application being time barred and also on merits. The petitioner is defendant in the main suit pending disposal in the trial Court. The respondent-plaintiff is none else, but his father. The suit has been filed for the issuance of a direction mandatory in nature to defendant to deliver vacant possession of a portion of the house constructed over land entered in khata/khatauni No. 52/99 bearing khasra Nos. 11402 to 1406 corresponding to old khasra No. 1386/1028/825 situated in Up Sampada, Badrinagar, Tehsil Paonta Sahib, District Sirmaur which allegedly was given to him after his marriage in the year 2006 for residential purpose. Such relief has been sought on the ground that on account of interference by the wife of defendant, the relation between him and the plaintiff are not cordial and his wife has registered a case u/s 12 of the Protection of Women from Domestic Violence Act, 2005 against the plaintiff. The suit is still at initial stage as despite three opportunities including the last and final on payment of Rs. 500/- as costs, the defendant has failed to file written statement and rather allowed himself to be proceeded against ex-parte on 12.4.2012. It is to set aside the said ex-parte order, the application under Order 9 Rule 7 CPC was filed by the defendant. Annexed thereto was another application u/s 5 of the Limitation Act for condonation of delay as occurred in filing the application under Order 9 Rule 7 CPC.

The delay was sought to be condoned on the ground, inter alia, that Shri Javed Khan, Advocate was representing him in the suit, who from time to time used to inform that he is putting appearance regularly in the suit. However, when on 2nd July, 2012, he enquired about the status of the suit from the counsel, the latter failed to answer satisfactorily, and as a result, he himself went to the Court and enquired about the status of his case where he came to know that he has been ordered to be proceeded against ex-parte on 12.4.2012.

In reply to the application, the plaintiff has denied the contents thereof being wrong. Learned trial Judge has, however, dismissed the application being time barred and on merits also, which has led in filing this petition before this Court on the ground, inter alia, that sufficient cause for condonation of delay is made out from the perusal of record. However, learned trial Court has failed to appreciate the same and dismissed the application in an illegal manner.

Having gone through the record and analyzing the rival submissions, it is apparent that the failure of the defendant to file written statement despite opportunities including last and final subject to payment of Rs. 500/- as costs granted for the purpose, has heavily weighed in the mind of learned trial Judge while declining the prayer for setting aside the ex-parte order. The factum of the defendant having filed application for setting aside the ex-parte order even after 21 days when he acquired the knowledge of dismissal of the suit, has also been given weightage while arriving at a conclusion that the application is time barred. I am not in agreement with the findings so recorded.

True it is that on 12.4.2012 the defendant failed to file written statement and also to put in appearance and, as such, was proceeded against ex-parte. He filed the application for setting aside the ex-parte order beyond the period of limitation. Although the record of institution of the application is not available, however, the same most probably was filed on 23rd July, 2012. If the limitation is taken from the date of knowledge, i.e. 2nd July, 2012, the application is well within the period of limitation. Otherwise also, the delay was not of such a nature as could be termed as inordinate or intentional or deliberate. On merits, instead of dismissing the application, the same should have been allowed, may be on payment of costs or any order coercive in nature. The dismissal of the application vide impugned order is not in the interest of fair trial between the parties, as in the event of the right of petitioner to file written statement is closed, he is likely to be condemned unheard and, as such, the impugned order besides being harsh and oppressive, is also violative of the principles of natural justice.

True it is that the right to file written statement after the expiry of statutory period is not automatic, but is always subject to just exceptions. Therefore, if the impugned order is quashed, the defendant shall have the right of filing written statement, of course, controlled by just exceptions. Otherwise also, the parties to the lis are father and son in relation. This Court feels that if efforts are not earlier made to settle the dispute amicably, that exercise is also possible. The defendant can come forward with some proposal to work out the amicable settlement on his being given the opportunity to defend the suit.

In view of what has been stated hereinabove, this Court finds the impugned order not only harsh, but oppressive also besides being violative of the principles of natural justice. The same, therefore, deserves to be quashed and set aside, no doubt, on payment of costs, which in the given facts and circumstances is quantified at Rs. 5,000/-. The defendant shall have the right of being heard if he pays the costs to the plaintiff on putting appearance in the trial Court pursuant to the direction in this judgment. He is entitled only to one opportunity for filing written statement, of course, subject to just exceptions, on a date to be fixed by learned trial Judge. It shall be open to the trial Court to consider the question of admissibility of taking on record the written statement beyond the period prescribed for filing the same on going through the ground, if any, made out to justify the delay occurred in filing the same. With the above observations, this petition succeeds and the same is accordingly allowed. Consequently impugned order is quashed and set aside subject to payment of Rs. 5000/- as costs to the plaintiff. The parties are directed to appear in the trial Court on 31st May, 2013. Pending application(s), if any, shall also stand disposed of. No order as to costs.