Ronita Biswas | National Law University, Orissa | 5th February 2020
Desh Raj v. Balkishan (D) Through Proposed LR Ms. Rohini (Civil Appeal No. 433 of 2020)
Facts
The Appellant and the Respondent were brothers. They owned one floor each of their ancestral property in Devli Village, Delhi. The ground floor was owned by the Respondent, whereas the first floor was in the name of the Appellant. In Feb. 2017, the Respondent approached the Appellant offering to purchase the first floor of the property. Subsequently, an agreement to sell was entered into between the parties for a total consideration of Rs. 7.5 lakhs, of which an amount of Rs. 1 lakh was paid as earnest money to the Appellant.
The agreement was not honoured and a legal notice was served upon the Appellant on 13.04.2017, calling upon him to accept consideration and perform his part of the contract.
The Respondent later approached the Civil Court praying for a decree of specific performance of the agreement by directing the Appellant to accept the balance sale consideration and execute the sale deed in favour of the Respondent. The Respondent claimed that the Appellant was trying to sell the suit property to third parties. The Respondent sought to permanently injunct the Appellant from alienating the property in favour of any third party.
The Appellant appeared on 15.05.2017 wherein the Civil Court granted the Appellant 30 days to file his written statement (hereinafter referred as w/s). Since no w/s was filed on 17.07.2017, the Court granted the Appellant a final opportunity of two weeks to file his w/s. Despite the last opportunity having been given for more than two months ago, the Court observed that no w/s was filed on 18.09.2017. Nevertheless, the Court granted another final opportunity, subject to payment of Rs.3000 and the matter was posted on 11.10.2017. On that date, Appellant sought multiple pass overs but his counsel did not appear before the Court.
After noticing that despite several opportunities, the Appellant had failed to file any w/s, the Civil Court thus closed the Appellant’s opportunity of filing w/s and struck off his defence. The aggrieved Appellant approached the HC in revision challenging the order of the Civil Court which closed his right to file written statement under Order VIII Rule 1 of the CPC and struck-off his defence owing to repeated delays and non-adherence of prescribed deadlines. Reliance was place on the case of Oku Tech Ovt. Ltd. v. Sangeet Agarwal And Ors. (2016 SCC OnLine Del 6601)wherein it was held that there was no discretion with courts to extend the time for filing the w/s beyond 120 days after service of summons.
Appellant’s contention
The Appellant’s primary contention was that reliance on Oku Tech case was erroneous as it was rendered in the light of Order VIII Rule 1 of the CPC as amended by the Commercial Courts Act, 2015. This was in turn applicable only to commercial disputes. The present matter being a non-commercial one, unamended Order VIII Rule 1 of CPC would be applicable; wherein there were no consequences for not complying with the shorter timeline of 90 days.
The Appellant submitted that the particular provision was merely procedural and simultaneously directory as held by the SC in various decisions including Salam Advocate Bar Association, T.N. v. Union of India (2005 6 SCC 344). Given that, the deadline of 90 days could be relaxed considering the facts and circumstances of the case. The Appellant argued that he himself had personally appeared on all dates of his hearing and the fault was on the part of his Counsel, due to which the w/s could not be filed.
The Appellant claimed that severe prejudice would be caused to him if the delay was not condoned for he would be left defenceless in the civil suit. Accordingly, he sought that the Court invoked its inherent discretion under Order VIII Rule 1 of the CPC and grant one final opportunity to file his w/s.
Respondent’s contention
The Respondent asserted that multiple chances had already been granted by the Civil Court including Opportunities beyond the maximum statutory period of 90 days (as provided for filing w/s under Order VIII Rule 1 of the CPC). It was submitted that continued failure to adhere to multiple deadlines indicated violation of Court’s directions, and was evidence of gross negligence on the part of the Appellant. It was sheerly a deliberate delaying tactic and abuse of process of law at worst.
Held
At the outset, the Court cleared the law in the present case. There had been an amendment in the application of CPC to commercial disputes through s. 16 of the Commercial Courts Act, 2015. Hence, post the amendment, there were two regimes of civil procedure:-
1. Commercial disputes [as defined under s. 2(c) of the Commercial Courts Act, 2015] governed by the CPC as amended by s. 16 of the said Act
2. All other non-commercial disputed falling within the ambit of the unamended/original provisions of CPC.
The Court observed the limited applicability of the Oku Tech case. The ratio of the judgement concerning the mandatory nature of the timeline prescribed for filing w/s and the lack of discretion of the Courts to condone any delay is only applicable to commercial disputes. With regard to the timeline for filing of w/s in a non-commercial dispute, unamended Order VIII Rule 1 of the CPC, continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays.
However, the Court noticed that unamended Order VIII Rule 1 of the CPC cannot be interpreted so as to give a free hand to any litigant or lawyer to file w/s at their own sweet will or the prolong the suit. The legislative objective behind the prescription of timelines under the CPC was given due weightage so that the disputes are resolved in a time-bound manner. Extreme hardship or delays occurring due to factors beyond the control of the parties despite proactive diligence may be just and equitable instances for condonation of delay.
The Court observed that the only defence taken up by the Appellant was that his Counsel was not turning up. No attempt had been made to give a reasoned justification and it was clear that the Appellant was seeking condonation in a casual manner. There was nothing to prevent the Appellant from filing the w/s through counsel or in person. The Court took a lenient view given the unique circumstances of the case and directed the Appellant to file the w/s and further make a payment of Rs. 25,000/- to the Respondent.
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