JOGINDER VERMA Vs. TAJINDER SINGH

JUDGEMENT

(1.) THE present petition under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 3rd August, 2011 passed by the trial court dismissing the application of the petitioner/defendant under Section 5 of the Limitation Act read with Section 151 CPC for condonation of delay in filing Written Statement. The petition was dismissed vide order dated 14th May, 2013 in default as no one appeared when the matter was called. The petitioner thereafter filed an application being C.M. No.11075/2013 for restoration. The same is allowed. The petition is restored to its original number.

(2.) BY way of an application under Section 5 of the Limitation Act read with Section 151 CPC filed on 15th January, 2007, the petitioner sought to recall the order dated 12th April, 2006. It was contended by the petitioner that on 12th April, 2006, though the counsel contacted him over phone and informed him about the said order, on 14th April, 2006, his son contacted and intimated the counsel of the petitioner that the petitioner was suffering from bilateral sciatica legs and was advised complete bed rest. It is contended that even though the counsel apprised him again about the necessity of filing the written statement along with the application for condonation of delay at the earliest, the petitioner showed his inability for the same on account of his illness and also on advise of the doctor for complete bed rest for a period of 8 months. It was only on 22nd December, 2006 that the petitioner was able to contact his counsel.

(3.) ON hearing the parties on the said application, it was observed by the trial court that petitioner was in effect seeking review of the order dated 12th April, 2006 whereby the opportunity to file the written statement was closed. The grounds for review were limited and the order dated 12th April, 2006 did not suffer from any illegality, perversity and there was no error apparent on the face of the record and there was no discovery of any new and important matter or evidence which was not in the knowledge of the petitioner/ defendant when the said order was passed. The court had closed the opportunity for filing the written statement when despite several opportunities being given, the same was not filed. Even otherwise, there was no merit in the application as the same was filed after a delay of more than 90 days and no cogent reason was given for the delay. Either on 12th April, 2006 or any time before, it was not stated on behalf of the petitioner that he was on bed rest and unable to sign the written statement. Rather on 12th April, 2006, it was stated that the stenographer of the counsel was ill and therefore the written statement could not be prepared. The said application was dismissed by order dated 3rd August, 2011.