GULSHAN KAPOOR Vs. HEERA LAL YADAV AND ORS.

JUDGEMENT

(1.) THE matter was heard earlier on 27th of April, 2007. On that date Shri Ajai Kumar Singh who had entered appearance on behalf of the contesting respondents made statement before the Court that an application to recall the impugned order was filed by the petitioner -tenant before the Court below. On that statement the hearing of the case was adjourned and the Court directed to file a supplementary affidavit in this regard. Today, at the very outset Shri Ajai Kumar Singh stated at the bar that the statement given by him earlier on 27.4.2007 is not correct and the mistake has occurred due to some communication gap. He states that his instructing Counsel informed that an application recall the impugned order was sought to be served on the landlord's Junior Counsel but he refused to accept the same and subsequently, the petitioner decided not to present the said recall application before the Court. Under some misunderstanding he gave the above statement for which he has expressed his regrets. The said matter is, therefore, closed. Heard the Counsel for the parties. By means of the present writ petition, the petitioner has challenged the order dated 4.8.2005 passed by the Judge Small Causes Court, Varanasi and 9th of February, 2007 passed by the Additional District Judge, Varanasi whereby the two Courts below have refused to accept the written statement filed by the petitioner on 23.11.2004 to be taken on record. The Courts below have proceeded on then footing that the written statement sought to be filed by the petitioner was not filed within the statutory time as prescribed under Order VIII, Rule 1, C.P.C. The contention of the learned Counsel for the petitioner is that the view taken by the Courts below is highly technical and there were exceptional circumstances which prevented the petitioner to file the written statement within the prescribed period. The learned Counsel for the petitioner offered that the respondent landlord may be compensated by awarding appropriate cost to them. In response, Shri A.K. Singh, the learned Counsel for the respondents submitted that the suit giving rise to the present writ petition was filed in the year 2003 being SCC Suit No. 35 of 2003. According to him there is no exceptional circumstance for taking the written statement on the record.

(2.) BE that as it may, it is expedient in the interest of justice to take the written statement filed by the petitioner -tenant on record subject to payment of heavy cost. The learned Counsel for the parties also jointly accepted that the written statement may be taken on record on payment of heavy cost. The quantum of cost was left on the discretion of the Court.