MUSHARRAT ALI Vs. RAIS AZAM

JUDGEMENT

(1.) The present petition is directed against an order dated 12.05.2009 passed by the Civil Judge, Delhi, dismissing an application preferred by the petitioner (defendant in the court below) under Section 5 of Limitation Act read with Section 151 of the Code of Civil Procedure, seeking condonation of delay in filing his written statement in a suit instituted by the respondent (plaintiff in the court below) for recovery of possession, damages for use and occupation of suit premises, i.e., F-49, 4th Floor, Nafis Road, Batla House, Joga Bai Extn., Jamia Nagar, Okhla, New Delhi, in his favour and pass a decree for recovery of arrears.

(2.) The sequence of events relevant for deciding the present case at hand are that the summon of the suit was served on the petitioner/defendant on 09.02.2009 and he was directed to appear in Court on 19.02.2009. Counsel for the petitioner appeared in Court on 19.02.2009 and filed his power of attorney. The case was adjourned to 30.04.2009 for filing of written statement within the stipulated period. The written statement was filed on 30.04.2009 alongwith an application seeking condonation of delay. However, the application for condonation of delay came to be dismissed by the impugned order and the defence of the petitioner/defendant was struck off. Hence, the present revision petition.

(3.) Counsel for the petitioner submits that he could not file the written statement till 29.04.2009 for the reasons as set out in the application seeking condonation of delay. However, he filed the same on 30.04.2009, i.e., on the date of hearing fixed by the Court on 19.02.2009.He states that the trial court failed to consider that though the written statement was not filed within the stipulated period of 30 days, it was filed well within the period of 90 days. He contends that the learned Civil Judge erred in dismissing the application of the petitioner and refusing to condone the delay in filing the written statement and striking off the defence of the petitioner, despite the fact that adequate and satisfactory explanation had been put forward by the petitioner.