CM(M)/830/2016 of DELHI CANTONMENT BOARD & ORS Vs MANJU TIWARI

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CM(M) 830/2016 and CM No. 31041/2016 (stay)

DELHI CANTONMENT BOARD & ORS ..... PetitionersThroughMr.Anchit Sharma, Advocate.

versus

MANJU TIWARI

ThroughNone.

..... Respondent

CORAM:HON'BLE MR. JUSTICE JAYANT NATH

O R R26.08.2016

1.By the present petition, the petitioners seek to impugn the order dated24.11.2015 by which the application for review was dismissed and the orderdated 07.08.2015 by which the application under Order 8 Rule 1 CPC wasdismissed.

2.The respondent has filed the suit for mandatory injunction for transferof leasehold rights in her name and for entering her name in the GeneralLand Register and to renew the lease in favour of the respondent.

3.The petitioner was served on 06.04.2015. The written statement wasfiled on 14.07.2015. Hence, there was delay beyond the period of 90 daysin filing of the written statement.

4.The petitioner moved the application under Order 8 Rule 1 CPC. Theapplication states that after service on 06.04.2015 on petitioner No.1, letterdated 23.04.2015 was received from defendant No.3/respondent No.3

authorising petitioner No.1 to contest the aforesaid suit on behalf ofrespondent No.3. Parawise comments were given to the counsel on08.05.2015 and on 12.05.2015, an adjournment was sought from the courtfor filing the written statement. Subsequently, it is also urged that there wasa strike call given by the concerned Bar Association from 22.04.2015 to13.05.2015. It is also stated that the Civil Courts were closed from08.06.2015 till 28.06.2015 and the counsel for the petitioners were out ofstation during the said period. On these grounds, condonation of delay wassought in filing of the written statement.

5.The trial court vide impugned order noted about the comments havingbeen received on 08.05.2015, the strike in the court and the holidays in thecourt and noted that despite having received these comments on 08.05.2015,the written statement has been filed on 14.07.2015. Mere fact of strike orholiday of courts’ due to ensuing vacation was held to be no ground forgrant of condonation of delay in filing of the written statement which wasbeyond the period of 90 days.

6.Learned counsel for the petitioners submits that the delay took placeas the records are extremely old. Even after finalisation of the writtenstatement, various steps were taken before the same could be finalised. Healso submits that no adjournment was taken for filing of the writtenstatement inasmuch as on 12.05.2015 the matter was fixed for 14.07.2015when the written statement was filed. Hence, he submits that no prejudicewas caused to the respondent.

7.Despite service of an advance copy on the leaned counsel for therespondent, none is present for the respondent.

8.Reference in this regard may be had to the judgments of the Supreme

Court in the case of Mr. Shaikh Salim Haji Abdul Khayumsabv. Mr.Kumar and Ors., AIR 2006 SC 396 and Kailash v. Nanhku and Ors., AIR2005 SC 2441. The consistent view is that while dealing with the provisionsof CPC, that no party should ordinarily be denied an opportunity ofparticipating in the process of justice dispensation.

9.In my opinion, the petitioners have shown sufficient cause for thedelay in filing of the written statement. The Cantonment records are oldrecords which pertain to period prior to 1947 when the lands are said tohave been given. After comments were ready, no doubt there was somedelay in filing the written statement which is explained by the court vacationand non-availability of the learned counsel for the petitioner. But noadjournment for the purpose of filing written statement was taken.Accordingly, the written statement filed by the petitioners is directed to betaken on record subject to payment of costs of Rs.10,000/-. The impugnedorder dated 02.08.2015 is accordingly set aside.

10.The petition stands disposed of.

AUGUST 26, 2016

JAYANT NATH, J