KRISHNA DEVI Vs. MANJU YADAV

JUDGEMENT

(1.) THE present petition assails the order dated 5.7.2010 and 19.3.2009 of Civil Judge in Suit No. 472/2008.

(2.) THE petitioner/plaintiff had filed the aforesaid civil suit for permanent injunction against the respondent. Since the respondent/defendant had not filed written statement within the given time, the petitioner filed an application under Order 8 Rule 1 CPC whereupon the right of the defendant to file written statement was closed on 19.3.2009.The respondent filed an application under Order 47 read with Section 114 CPC for review of the aforesaid order dated 19.3.2009. The said application was allowed and the order dated 19.3.2009 was recalled. The written statement that was already filed by the respondent on 31.5.2010 was taken on record subject to payment of cost of Rs. 3000/- The reasons which were given by the respondent for not filing the written statement in time and till 31.5.2010 as stated in the application were that not only the counsel for the defendant/respondent, but her eight months' minor child as also mother was sick and so she could not prepare and file the written statement. In support of the said submissions, the medical records of the counsel for the defendant as also of her daughter and mother were placed on record. The Trial Court, on perusal of the above-said medical records observed that the reasons stated by the counsel for not filing the written statement seems to be probable, but it has affected the rights of the plaintiff. It was observed that if the written statement of the defendant which is already filed is not taken on record, it shall defeat the substantial right of the defendant on account of mistake of his counsel. It was also observed that though there is delay in filing the written statement, but the suit being at the initial stage and the trial not having commenced, the procedural technicalities should not be allowed to defeat the administration of justice. With all these reasons, the written statement already filed was taken on record. The said order has been assailed in the present petition.

(3.) IN view of the above, it cannot be said that in no circumstance, the time beyond 90 days for filing written statement could be extended. In the instant case, it is noticed above that the Trial Court has taken note of the fact that there was considerable delay in filing the written statement. At the same time, discretion in condoning the delay in filing W.S. has been exercised by the Trial Court only on the medical grounds of the counsel and that of her eight months' minor child as also the mother of counsel. The Trial Court exercised the discretion only after perusal of the medical records of the counsel and her child and mother. The learned counsel appearing for the respondent submitted before me also that at the relevant time, she was passing through the difficult time of pregnancy and had to undergo surgery for delivery and that written statement, involving perusal and filing of voluminous documents, could not be prepared and filed. It was in all these circumstances that the written statement filed by the respondent was taken on record, for which the petitioner was compensated by way of cost. Thus, I do not see any infirmity or illegality in the impugned order exercising discretion by the learned Trial Court in extending the time beyond 90 days and taking the written statement on record.