Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 3862 of 2018 Petitioner :- Shyam Sunder Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Awadhesh Prasad Counsel for Respondent :- C.S.C.,Keshav Kumar Srivastava
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and Sri Keshav Kumar Srivastava, learned counsel appearing for the Caveator - respondent no. 4.
Present petition has been filed seeking setting aside the impugned order dated 8.8.2017 whereby the court below has refused to accept the written statement filed by the petitioner herein on the ground of delay. A further prayer to issue a direction to the court below to accept the written statement filed by the petitioner in aforesaid Case No. 133 of 2016 and consider the same.
The petitioner has approached by this Court by filing Matters under Article No. 6740 of 2017, Shyam Sunder Vs. Raj Kumar and 2 others wherein a prayer was made seeking a direction to accept the counter claim filed by the petitioner in Case No. 133 of 2016 and consider the same. The aforesaid petition was dismissed vide order dated 10.11.2017 observing that the order dated 8.8.2017 is not under challenge whereby the written statement was refused to be accepted on record. A restoration application was filed, which was disposed of vide order dated 27.4.2018 without granting any relief. Now the order dated 8.8.2017 whereby the written statement was refused to be accepted on record is under challenge. The order dated 10.11.2017 is quoted as under:
"Case called out in the revised list.
None has appeared on behalf of the petitioner to press the petition which has been filed seeking the following the relief:-
"(i) direct the Civil Judge Senior Division, Jhansi to accept the counter claim filed by the petitioner in the aforesaid case No. 133 of 2016 and consider the same."
It appears from a perusal of the record that a belated written statement was filed by the petitioner, who has arrayed as defendant No. 2 in a suit.
The trial court observing that the written statement had not been filed within the time specified, nor any reason or explanation offered for the delay, has refused to take the written statement on record.
The order passed by the trial court is not under challenge is in this petition. The relief prayed for, in this writ petition, therefore, cannot be granted.
The writ petition is dismissed."
Learned counsel for the petitioner submits that although the petitioner had filed the written statement with some delay but there was no deliberate delay on the part of the petitioner.
Per-contra, learned counsel appearing for the caveator - respondent no. 4 has supported the impugned order.
I have considered the rival submissions and have perused the record.
There is no doubt that there is some delay in filing the written statement, however, the interest of justice would be served by providing an opportunity to file written statement and contest the case on merits.
However, since there has been delay, heavy cost is liable to be imposed on the petitioner.
Under such circumstances, the impugned order dated 8.8.2017 is set aside on payment of cost of Rs. 20,000/-. The court below is directed to accept the written statement on record. The petitioner shall be liable to pay cost of Rs. 20,000/- by 10th July, 2018 to the caveator - respondent herein Raj Kumar and in case he refused to accept the cost, the same shall be deposited by the petitioner in the court below within the said period. In case the cost is not paid within the aforesaid period, the present petition shall stand dismissed without any reference to this Bench.
The suit itself may be decided, in accordance with law, by fixing short dates and without granting any unnecessary adjournments.
With these observations, this petition stands allowed. No order as to costs.
Order Date :- 28.5.2018 p.s.