IN
THE HIGH COURT OF DELHI AT NEW DELHI
02.05.2011
Present:
Mr. Ajay Kumar Singh, Adv. for the petitioner.
CM
(M) No.511/2011
The
challenge by means of this petition seeking to invoke the extraordinary
and discretionary jurisdiction of this Court under Article 227 of the Constitution
of India is to the impugned order dated 3.2.2011 which closed the rights
of the petitioner/defendant to file the written statement. Code of Civil
Procedure, 1908 (CPC) was amended by the amending Acts of 1999 and 2002.
One
such amendment was to Order 8 Rule 1 CPC whereby the defendant has to file the
written statement within 30 days and after finishing due cause within a period
of 90 days. Of course, this provision has been held to be directory and not
mandatory by the Supreme Court but the Supreme Court has simultaneously observed
in all its judgments that facts of each case have to be seen and examined
to decide whether the defendant should be allowed to file the written statement
with delay. Obviously, on this aspect the amount of delay becomes very
crucial. In the present case, the petitioner deliberately sought to delay the
suit for recovery of about Rs.4,59,340/- and by filing of an application under
Order 7 Rule 11 CPC which took 2 years, and which application was dismissed
and during which period no written statement was filed. Ever
thereafter, the petitioner took more than 2 months to file the written
statement.
In
view of the above, the Trial Court, in my, opinion, rightly passed the
impugned order disallowing the prayer of the petitioner/defendant to file
the written statement. There are no vested rights to keep on delaying the suit
for recovery of money by procedural tactics. The Trial Court has therefore rightly
dismissed the application of the petitioner for condonation of delay of over
2 years in filing the written statement. The facts of the present case do not
show any reason for me to invoke the extraordinary and discretionary jurisdiction
under Article 227 of the Constitution of India. Dismissed.
MAY
02, 2011 VALMIKI J. MEHTA, J.
IN
THE HIGH COURT OF DELHI AT NEW DELHI
02.05.2011
Present:
Mr. S.Paul and Mr. V.K.Jain, Adv. for the petitioner.
CM(M)
No. 501/2011
1.
The challenge by
means of this petition under Article 227 of the Constitution of India seeking
to invoke the discretion and extraordinary jurisdiction of this court, is to
three orders dated 20.5.2010, 13.1.2011 and 14.2.2011. The grievances of the
petitioner can be crystallized as under:-
(i)
The defence of
the petitioner herein, defendant in the trial court, could not have
been struck off by the trial court vide order dated 20.5.2010 inasmuch as the
same is violative of the amendment to order XV-A CPC, as applicable to Delhi,
as per which, before striking off the defence, a show cause notice/response
is necessary to the defendant.
(ii)
The petitioner
is entitled to suspension of rent and consequently there cannot be
direction, either for striking off the defence or for passing of the
subsequent order dated 14.2.2011 which records recalling of the order striking
off defence subject to payment of costs of Rs.2 lacs towards arrears and
also recording an undertaking to clear the remaining payments.
2.
In my opinion,
the present petition is not only totally misconceived but is a gross abuse
of the process of law. This petition is liable to be dismissed for the
following reasons:-
(i)
The challenge is
laid to orders dated 20.5.2010, 13.1.2011 and 14.2.2011 by means of
filing of the petition only in April, 2011 though the challenge is
to the main order dt 20.5.2010 striking of the defence. Therefore, the
challenge is laid to an order of 20.5.2010 in April, 2011, and which clearly would
be barred by delay and latches. Not only would the petition be barred by delay
and latches but also, this order of 20.5.2010 was in fact recalled by the trial
court on the statement made by the petitioner, an aspect which I will revert
at subsequent stage. Also there cannot be challenge to different orders on
different subject matters by filing one petition and the petitioner was bound to
file separate petitions.
(ii)
Reliance by the
petitioner to the amended provision of Order 15-A CPC as applicable
to this court and the entitlement of suspension of rent on the basis
of N.K. Baslas Vs. Krishan Lal 1973 RLR 14 is clearly misconceived inasmuch as
the petitioner is seeking to challenge the order dt 20.5.2010 by seeking
to sidetrack the issue as recorded in the subsequent order dated 14.2.2011, by
which, the order of striking off the defence was set aside on the trial
court recording payment of Rs. 2 lacs by the petitioner to the respondent and
also a further undertaking to clear the remaining payments. The order dt 20.5.2010
thus did not survive after the order dt 14.2.2011. This order dated 14.2.2011
does not show any reservation of the petitioner for making the payment of
Rs.2 lacs as also the undertaking to clear the remaining payments.
3.
The facts are
that the petitioner in an earlier suit filed against him agreed by means
of compromise decree in November, 2008 to pay rent at Rs.45,000/- per
month and also vacate the premises by December, 2011. Since the petitioner
was alleged to have breached the earlier compromise, the present suit was
filed for possession and arrears of rent/mesne profits. The petitioner therefore
by hook and crook is somehow or other wanting to avoid the liability to
make payment for user charges from March 2009, although, he is staying in the premises.
4.
When I pointed
out to the learned counsel for the petitioner that there is a
specific undertaking to clear the remaining payments, then the counsel for the
petitioner stated that this aspect has been wrongly recorded by the trial court
in the order dt 14.2.2011. This argument in my opinion in fact accentuates
the malafides of the petitioner because a clear cut undertaking recorded
in the judicial record is now sought to be challenged before this court,
although and admittedly, no application was moved before the trial court immediately
after 14.2.2011 that it is wrongly mentioned by the trial court that the
petitioner had undertaken to clear the remaining payments. It has been laid down
by the Supreme Court in the catena of decisions starting from State of Maharashtra
Vs. Ramdas Srinivas Naik (1982) 2 SCC 463 that once a factual aspect is
recorded in an order of the court, it is not permissible for a party in an appeal
to challenge the order that the factual statement is wrongly recorded. The only
way to have alleged factual statement having been wrongly recorded corrected
is that the aggrieved person who states that the factual aspect is not
correctly recorded, must immediately after the factual aspect is recorded
in the order to file an application before the same court, which recorded
the factual aspect, that too at an earliest date when the matter is fresh
in the mind of the concerned Judge who recorded the factual aspect. If
this is not done, the matter must necessarily end there and it is not
permissible for a person in a higher court to claim that the factual
aspect has been wrongly recorded by the trial court.
5.
In view of the
above, the what emerges is that no doubt there was an earlier order
of striking off the defence, and which prima facie may have been violative
of Order XVA CPC as applicable to Delhi, however, the petitioner had not
challenged the order of 20.5.2010 before this court till almost one year, and
not only that, the order was recalled vide order dt 14.2.2011 and the petitioner
acted in terms of the said order dt 14.2.2011 by making a payment of Rs.
2 lacs and undertook to clear the balance payment as recorded in the order dated
14.2.2011. Once, the order striking off defence is recalled, on making part
payment, and recording an undertaking to pay the balance, it does not lie in
the mouth of the petitioner to urge otherwise in view of the decision in the case
of Ramdas Srinivas Naik (supra).
6.
The present
petition therefore seeks to invoke extraordinary jurisdiction of this
court for the purpose of delaying the proceedings filed by the respondent/landlord
in the trial court and avoiding complying with the order dated 14.2.2011.
The petitioner therefore being not only misconceived, but an abuse of the
process of law, is dismissed with costs of Rs.25,000/ considering not only that
the rent is Rs.45,000/- per month, but also that a Division Bench
of three judges of the Hon’ble Supreme Court in the case of Salem Advocate
Bar Association Vs. Union of India (2005)6 SCC 344, has said that it is high
time that courts imposed actual cost. This court also invokes its power under
Punjab High Court Rules and Orders Volume V (as applicable to Delhi) Chapter
VI Part I Rule 15 which vests discretion in this court to award costs as
per the circumstances of each particular case. Costs be paid within two weeks and
shall be a condition precedent for the petitioner to conduct his defence in the
trial court. Copy of this order be sent to the trial court.
MAY
02, 2011 VALMIKI J. MEHTA, J.
