JAREENA SULTANA Vs. CHAIL SINGS & OTHERS

JUDGEMENT

(1.) Order dated 27.10.2017 dismissing I.A. No. 791 of 2017 filed by the petitioner / defendant No.1 in O.S. No. 2 of 2013, invoking Section 151 of the Code of Civil Procedure, for receiving the written statement, is challenged before this Court.

(2.) Sri K. Narsi Reddy, learned counsel appearing for the petitioner, placing reliance on the judgment of the Supreme Court in Kailash v. Nanhku; AIR 2005 SC 2441 would submit that the provisions of Order VIII Rule 1 of the Code of Civil Procedure fixing the time schedule for filing the written statement are not mandatory and that there is a discretion vested in the Court to allow the written statement to be filed subject to putting the erring defendant on terms. He would further urge that inasmuch as the petitioner has been denied execution of the agreement of sale itself, on which basis, the plaintiffs/respondents have filed the suit for specific performance, and inasmuch as substantial property rights are involved, if an opportunity is not given to the petitioner, he would suffer irreparable loss. Hence, this Court may be pleased to exercise the discretion vested in it and allow the petitioner to file the written statement, subject to stiff conditions, prays the learned counsel.

(3.) On the other hand, Sri A. Chandra Sekhar, learned counsel appearing on behalf of respondent No.1 / plaintiff would submit that the petitioner had deliberately stayed away from the proceedings, despite receipt of summons in the suit, and was in fact, set ex parte on 04.04.2013. However, the Court below, taking a lenient view, had allowed I.A. No. 1168 of 2016 on 03.08.2016, giving the petitioner an opportunity to participate in the suit proceedings. Even thereafter, the petitioner did not choose to file a written statement and it is only after completion of the plaintiffs side evidence, the present Application has been taken out. He would further urge that Section 151 of the Code has no application in the instant case, for, the provisions of Order VIII Rule 1 mandate the written statement to be filed within 30 days from the date of receipt of summons and thereafter, within 60 more days, for the reasons to be explained, and that the Court may exercise its discretion / jurisdiction, by recording cogent reasons, justifying the same. According to the petitioner, in the present case on hand, the reason stated by the petitioner is scanty and not worth- mentioning. He would therefore, remind that the Supreme Court had repeatedly cautioned that undue indulgence shall not be shown to a litigant, who has not been vigilant.