S. RANDHIR SINGH CHANDHOK Vs. ATMA RAM BANSAL

JUDGEMENT

(1.) BY this application under Section 151 CPC read with Section 149 and under Order 8 Rule 1, CPC, plaintiff sought condonation of delay in filing written statement. It is submitted by the plaintiff that on 9th January, 2008 counsel for the defendants received an application filed by the plaintiff under Order 8 Rule 10 alleging therein that there was no written statement filed on record. After receipt of this application, counsel for defendant conducted inquiries and inspected the record. It is submitted that apparently the erstwhile clerk of counsel for the defendants, Mr. Vikas Chand, who had joined office a few months back erroneously filed the original set of signed written statement and the accompanied application as the office copy on the file of counsel unsigned and unattested copies were filed on Court record. Manifestly, the said clerk later on obtained objections on the said copy of written statement and without informing anybody in the office surreptitiously placed the same on the file of the counsel to escape reprimand. The said lapse of the clerk surfaced recently after receipt of the application of the plaintiff under Order 8 Rule 10. It is stated that there was a delay of 25 days in filing the written statement. The condonation of this delay is sought under Order 8 Rule 1 read with Section 149. It is stated that this delay was on account of the fact that counsel for defendants fell seriously ill during last three months on account of typhoid. The delay was unintentional and beyond the control of defendant. The application is accompanied by an affidavit filed by defendant Mr. Atma Ram Bansal who has stated that the facts mentioned in the application are true and correct to his knowledge.

(2.) IT is a recent phenomena that the burden of negligence is put on the clerks who are not answerable to anyone. There is no affidavit accompanied with the application of the advocate who had presumed that there was negligence on the part of the clerk. A perusal of facts as given by the advocate would show that he has presumed all these things. There is no way to verify as to what is stated in the application is correct or not since the advocate and the defendant both have claimed that it was the fault of the clerk. I think that the Court should not encourage such kinds of excuses being taken for the negligence in filing the written statement.

(3.) I consider that in the present case, the delay in filing the written statement is not properly explained. The written statement has been filed beyond 90 days and the delay is 25 delays beyond 90 days. However, in the interest of justice, the application is allowed subject to cost of Rs. 25,000/- to be paid to the plaintiff.