Dismissed

Rajesh Gupta S/O Late Shri Kishanlal Badhera v. Premkanta Badhera W/O Late Shri Kishanlal Badhera

Rajasthan HC1 Feb 2019CW/2459/2019

Case brief

AI extract

What is this about?

This writ petition challenged an order allowing a defendant to file a belated written statement beyond the 90-day limit in a civil suit over immovable property between a mother and son. The High Court dismissed the petition, upholding the trial court's power to extend time under its inherent jurisdiction when exceptional circumstances exist.

What did the court decide?

The writ application was dismissed as it failed to disclose any illegality or irregularity warranting interference under Article 227.

Rajesh Gupta S/O Late Shri Kishanlal Badhera Vs… — Property and Title | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 2459/2019

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Rajesh Gupta S/o Late Shri Kishanlal Badhera, Aged About 44 Years, Resident Of 1/187, S.f.s. Agrawal Farm, Mansarovar, Jaipur

¶4

----Petitioner

¶5

Versus

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Premkanta Badhera W/o Late Shri Kishanlal Badhera, Resident Of 1/187, S.f.s., Agrawal Farm, Mansarovar, Jaipur

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Chairman, Rajasthan Housing Board, Jyoti Nagar, Jaipur

¶8

Commissioner (Dy. Housing Commissioner) Circle-Ii, Rajasthan Housing Board, S.f.s., Agrawal Farm, Mansarovar, Jaipur

¶9

Anita Gupta, Resident Of E-67, Chitranjan Marg, C- Scheme, Jaipur

¶10

Sunita Gupta, Resident Of 29, Gali No. 2, Moti Nagar, Queens Road, Jaipur

¶11

----Respondents

¶12

For Petitioner(s) : Mr. J.K. Yogi For Respondent(s) :

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HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

¶14

Order

¶15

01/02/2019

¶16

By order dated 19^th April, 2018, the Court below granting an application under Section 151 CPC, allowed to respondentdefendant No.1, to place on record her written statement, subject to payment of cost of Rs.1,000/-; of which the petitioner is aggrieved of.

¶17

Learned counsel for the petitioner referring to Order 8 Rule 1 read with Section 148 CPC, insistently argued that the maximum

¶18

(2 of 4)

¶19

[CW-2459/2019]

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time limit provided by the legislation, is of 90 days, and therefore, the written statement submitted after 271 days, ought not to have been taken on record. Hence, the matter calls for interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India.

¶21

Heard and considered.

¶22

The petitioner-plaintiff instituted suit proceedings in the month of January, 2011. Defendant No.1, entered appearance in response to summons and filed reply to the application for temporary injunction in January, 2012. It is also not in dispute that counsel representing defendant No.1, has been duly representing her before the Court below. An application under Order 7 Rule 11 CPC, was instituted, and thereafter, the matter was sent for mediation in view of the joint request made by the counsel for the parties. The matter was remitted back to the Court below on 10^th April, 2012, for no compromise/settlement could be arrived at between the parties. Written statement on behalf of defendant No.1, was filed on 21st September, 2012, which was objected to by the petitioner-plaintiff, and therefore, on an application under Section 151 CPC, was instituted on behalf of defendant No.1, with a prayer to take on record the written statement detailing out the reasons for delay, which has been granted.

¶23

The Court below, in the factual matrix of the case at hand where an application under Order 7 Rule 11 CPC, was instituted and the matter was also referred to mediaton so also in the back of the law declared by the Apex Court of the land and also relying upon opinion of a Coordinate Bench of this Court in the case of

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Shri Ramashankar Vs. Hon'ble Addl. District Judge No.9,

¶25

(3 of 4)

¶26

[CW-2459/2019]

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Jaipur Metropolitan, Jaipur (Raj.) and ors. :2017(4) DNJ 1875, rightly granted the application of the defendant No.1. The Court below also took note of the specific factual matrix of the case at hand, wherein the dispute is between the son and mother involving immovable property.

¶28

The controvery raised by the petitioner in the instant writ application may not detain for a long in view of the settled position of law as declared in the case of Sandeep Thapar Vs. SME Technologies Private Ltd.: (2014) 2 SCC 302, wherein relyng upon the opinion in the case of Kailash Vs. Nanhku and ors.: (2005) 4 SCC 480, the Apex Court of the land observed thus:

¶29

"7.We have considered the submission made by the learned Counsel. In our opinion, the submission made by the learned Counsel is well founded in view of the observations made by this Court in Kailash v. Nanhku and Ors. reported in MANU/SC/0264/2005 : (2005) 4 SCC 480, wherein this Court has observed as follows:

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We sum up and briefly state our conclusions as under: (i)...

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(ii)...

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(iii)...

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(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of Code of Civil Procedure is to expedite and not to scuttle the hearing. The provision spells out a disability on the Defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the Code of Civil Procedure is couched in negative form, it does not specify any penal consequences flowing from the noncompliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the Code of Civil Procedure is not completely taken away.

¶34

(4 of 4)

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[CW-2459/2019]

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(v) Though Order VIII, Rule 1 of the Code of Civil Procedure is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the Defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the Defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the Defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the Defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."

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That apart, the permission to take on record the written statement has also been made subject to payment of cost of Rs.1,000/- (Rupees One Thousand).

¶38

For the reasons aforesaid and in view of the settled legal position so also for the reasonings recorded by the Court below while declinging objection of the petitioner-plaintiff in taking on record the written statement of defendant No.1; committed no illegality much less material illegality and/or irregularity so as to warrant any interference by this Court in the impugned order dated 19^th April, 2018, in exercise of writ jurisdiction under Article 227 of the Constitution of India.

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In the result, the writ application fails and is hereby dismissed.

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(VEERENDR SINGH SIRADHANA),J

¶41

Pcg/158

Rajesh Gupta S/O Late Shri Kishanlal Badhera v. Premkanta Badhera W/O Late Shri Kishanlal Badhera

Case brief

What is this about?

What did the court decide?

Rajesh Gupta S/O Late Shri Kishanlal Badhera v. Premkanta Badhera W/O Late Shri Kishanlal Badhera

Case brief

What is this about?

What did the court decide?

What the court decided

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