GAUTAM BHOWMICK Vs. PREM CHAND

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 20th April, 2009 passed by learned Rent Controller dismissing an application of the petitioner under Order 8 Rule 1 read with Section 151 of CPC.

(2.) Brief facts relevant for the purpose of deciding this petition are that the respondent filed an eviction petition against the petitioner herein under Section 14(1)(a) and (d) of Delhi Rent Control Act (DRC). The notice of the said eviction petition was served upon respondent on 30th July, 2008. In terms of Order 8 of CPC, respondent was supposed to file written statement within 30 days but no written statement was filed within the period of 30 days. No application was made for extension of time in filing written statement after 30 days. The matter was listed before the trial court on 13th October 2008. On that day, instead of filing written statement an adjournment was sought by the petitioner herein on the ground that his counsel was out of station. The trial court observed that two and a half months had passed since service of summons on the petitioner and no written statement had been filed and no application had been made for extension of time. He closed the right of present petitioner to file the written statement. After this order was passed, the petitioner made an application under Order 8 Rule 1 read with Section 151 CPC seeking leave to file the written statement and in that application the petitioner took the ground that he could not file written statement within the statutory period since he had to frequently visit Kolkata in connection with other cases being faced by him and because of this he was facing financial crisis. The learned trial court considered the application and observed that since the trial court had already closed the right of the petitioner herein to file the written statement, the application for condoning delay, giving reasons for not filing the written statement and seeking leave to file the written statement would not be maintainable since the Court had proceeded under Order 8 Rule 10 CPC and dismissed the application.

(3.) It is submitted by counsel for the petitioner that the trial court was wrong in saying that it could not entertain an application under Order 8 Rule 1 CPC after it had already acted under Order 8 Rule 10 CPC and closed the right of the present petitioner to file written statement. The counsel for the petitioner relied upon Arya Orphanage v. Bimla Bedi, 2005 118 DLT 152 and Smt. Rani Kusum v. Smt. Kanchan Devi, 2005 AIR(SC) 3304.