* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No. 9153/2012 (by the defendant u/S 5 of Limitation Act for condonation of delay in filing the WS) and I.A. No.9154/2012 (by the defendant u/S 5 of Limitation Act for condonation of delay in re-filing the WS) in CS(OS) 838/2011
Date of Decision: 25.09.2012 IN THE MATTER OF SWAMI RAM TIRATH MISSION Plaintiff Through: Mr. Ravi Kant Chadha, Sr. Advocate with Mr.
R.K. Gautam, Advocate versus SANJEEV SABERWAL Defendant Through: Mr.Bharat B. Sawhney, Sr. Advocate with Mr. Davinder Grover and Mr. Lakshay Sawhney, Advocates CORAM HON'BLE MS.JUSTICE HIMA KOHLI HIMA KOHLI, J. (Oral)
1. I.A. No.9153/2012 has been filed by the defendant praying inter alia for condonation of delay of 88 days in filing the written statement and I.A. No. 9154/2012 has been filed by him for seeking condonation of delay of 162 days in re-filing the written statement.
2. The applications, as they stand, are extremely ambiguous for the reason that no relevant dates whatsoever have been furnished by the defendant to state as to the period within which he was required to file the written statement, the date on which the time for filing the written statement had expired, the date on which the written statement actually came to be filed and the dates on which the defendant was travelling to the United Kingdom. The only date furnished in the applications is 04.11.2011, i.e., the date when the defendant states he had returned to India from the United Kingdom and had contacted his counsel for preparation of the written statement.
3. It is also relevant to note that though no permission was taken from the Court, the defendant has on his own filed an additional affidavit dated 14.09.2012 to improve upon his case and to substantiate the averments made in the present applications. The defendant has stated in the aforesaid affidavit that the summons in the suit were received by him with a copy of the plaint for his appearance on 27.07.2011. However, documents were not supplied with the plaint. On 27.07.2011, the defendant was granted four weeks time by the Joint Registrar to file the written statement. Pertinently, the aforesaid period of four weeks had expired on 26.08.2011. However, the written statement came to be filed by the defendant after almost three months therefrom, i.e., on 23.11.2011. The aforesaid belated written statement was also not on record till as late as on 09.05.2012, when it was noticed by the Joint Registrar that as per the office report, the written statement had not been filed.
4. Though there is no averment made in the applications to explain the delay of three months in filing the written statement if reckoned from 26.08.2011, the defendant has stated in the additional affidavit that the written statement could not be finalized within the prescribed period of one month from 27.07.2011 as the relevant documents relating to the material facts and information could not be traced due to extensive renovation work that was being undertaken in his office during the period from July to September, 2011. It is further stated that the relevant documents could be traced only on 20.10.2011 but the same could not be handed over to the counsel as the defendant had to rush to the United Kingdom for the post surgical medical check-ups of his son, who is settled there and had undergone a surgery in May 2010 and subsequently undergone another surgery in May 2011.
5. In support of the aforesaid submission, the defendant has enclosed a copy of the e-mail dated 13.07.2011 addressed by the Consultant Orthopaedic Surgeon, University Hospitals Bristol, United Kingdom stating inter alia that Mr. Sanjay Sabherwal (son of the plaintiff) was admitted on 13.05.2011 and underwent a surgery on 14.05.2011, whereafter he was discharged on 15.05.2011. The doctor had stated that the “patient would require follow-up in the fracture clinic in due course”.
6. The aforesaid e-mail does not throw any light on the nature of follow-up, which required the personal presence of the defendant in the United Kingdom from October, 2011 onwards. Incidently, learned Senior Advocate appearing for the defendant had clarified that the wife of the defendant is residing on a permanent basis in the United Kingdom and she was looking after their son, who had undergone a surgery in May, 2010 and subsequently another one in May, 2011. In para 5 of the affidavit, the defendant states that he had returned from the United Kingdom on 04.11.2011 and had immediately contacted his counsel and handed over all the relevant documents for preparation of the written statement. The defendant seeks to explain the delay of 88 days beyond the prescribed period of 30 days in filing the written statement, in the aforesaid manner.
7. The present application is vehemently opposed by the learned Senior Advocate appearing for the non-applicant/plaintiff, who states that the lease deed, on the basis of which the defendant is occupying the suit premises that is owned by the plaintiff/Mission, had expired in the month of November, 2007 and thereafter, he has been occupying the suit premises as a tenant at sufferance. He further states that the defendant had stopped paying the occupation charges to the plaintiff w.e.f. January 2009 and it is for the aforesaid reason that the defendant has adopted such dilatory tactics solely to delay the present proceedings, while conveniently occupying the suit premises owned by the plaintiff/Mission without paying a penny towards the occupation charges.
8. Learned Senior Advocate appearing for the defendant rebuts the aforesaid submission by stating that till March 2009, the defendant had been depositing the monthly rent @ `20,000/- directly in the bank account of the plaintiff whereafter the plaintiff/Mission had instructed its banker not to accept the said rent and thereafter, he had dispatched the rent by cheque directly to the plaintiff for a couple of months in the year 2009. But thereafter, the defendant had admittedly stopped tendering the occupation charges in respect of the suit premises to the plaintiff.
9. The Court has heard the counsels for the parties and examined the averments made in the applications.
10. IA No. 9153/2012, as originally filed on 10.05.2012, is virtually silent as to the explanation offered for seeking condonation of delay of 88 days in filing a belated written statement. Except for a passing reference made in para 3 of the application, there is not a whisper therein with regard to the explanation offered for the delay and the relevant dates for considering the application, which fact has also been noticed hereinabove.
11. Even if the affidavit that was subsequently filed by the defendant without seeking prior permission from the Court, is taken into consideration, the same reveals a number of loop holes therein. Except for a sweeping submission made to the effect that the office of the defendant was being renovated for a period of three months, i.e., from the months of July to September 2011, there are no relevant supporting details with regard to the purported renovation work that was being undertaken in his office premises, i.e., the suit premises.
12. Further, a perusal of the e-mail dated 13.07.2011 addressed by the Consultant Orthopaedic Surgeon, University Hospitals Bristol, United Kingdom, who it is stated had treated the son of the defendant, shows that his surgery had taken place in May 2011. It is relevant to note that even as per the defendant, his wife, who is residing in the United Kingdom, was taking care of their son. Therefore, the urgency sought to be expressed by the defendant for rushing to the United Kingdom in the month of October 2011 without furnishing the dates of his travel, when his son had only required follow-up in the fracture clinic, cannot be considered as just and sufficient cause for explaining the delay for the period w.e.f. October 2011 till 23.11.2011 in filing the written statement. The defendant has also failed to place on record a very relevant document, i.e., a copy of his passport to establish the period of his stay in the United Kingdom.
13. Courts have time and again observed that dilatory tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by the said delay and the extension of time sought for by the defendant from the court beyond thirty days or within ninety days, should not be granted as a matter of routine. The extension can only be by the way of exception and the reasons are to be recorded in writing by the court to its satisfaction. Such extension should be provided only where grave injustice would be occasioned if the time was not extended. (Refer: Kailash Vs.Nanku reported as AIR 2005 SC 2441).
14. In the aforesaid facts and circumstances of the present case, this Court is not satisfied with the explanation offered by the defendant to explain the inordinate delay in filing the written statement. Much less showing any diligence, the entire approach of the defendant has been quite casual in the matter. Therefore, the Court is not inclined to condone the delay of 88 days in filing the written statement by the defendant. The present applications are therefore dismissed being devoid of merits.
SEPTEMBER 25, 2012 rkb (HIMA KOHLI) JUDGE