Delay in filing written statement can be condoned subject to compensatory costs, and disputes should be decided on merits rather than technicalities.

JUDGMENT

Manmeet Pritam Singh Arora, J. (Oral)

1. This petition impugns the order dated 19.10.2022 and 09.02.2023 passed by the ADJ, West District, Tis Hazari Court, Delhi (`Trial Court') in case bearing Suit No. 729/2020 titled as "Roop Singh v. Sardar Singh & Anr." whereby, the Trial Court dismissed the application under Order 47 Rule 1 Code of Civil Procedure (`CPC') seeking review of the order dated 14.12.2021.

1.1. The Petitioner is defendant No. 1 and Respondent No. 1 is the plaintiff in the civil suit.

2. The suit has been filed by the plaintiff for declaration, possession and permanent injunction of the property bearing no. 106 VPO Mundka, measuring 126 sq. yds. (21/54) out of Khasra no.370 situated within old Lal Dora (1908-09) of Village and abadi Mundka (`subject property'). A perusal of the record shows that the Petitioner herein was proceeded ex-parte on 14.12.2021.

3. Upon an application being filed by the Petitioner herein, the application was allowed by the Trial Court vide order dated 04.08.2022, subject to the Petitioner herein making payment of cost of Rs. 5,000/- to Respondent No. 1. By the same order, the Petitioner was also directed to file his written statement within a period of 30 days with an advance copy to the plaintiff.

4. The Petitioner herein however, defaulted in complying with the order dated 04.08.2022 inasmuch as neither the written statement was filed nor the costs were tendered to the plaintiff. Since no cost were paid and neither a written statement was filed, the Trial Court vide order dated 19.10.2022 proceeded ex-parte against the Petitioner herein.

5. The Petitioner thereafter made attempts and tendered the cost of Rs. 5,000/- to the counsel for the plaintiff, however, the said costs were repaid by Respondent No. 1 i.e. the Plaintiff on 08.12.2022 to the Petitioner herein.

6. In these circumstances, the Petitioner herein filed an application seeking recall of the order proceeding ex-parte against him. However, the said application was dismissed.

7. The learned counsel for the Petitioner states that he is willing to pay compensatory cost to the plaintiff for the delay cause in filing the written statement and tendering the cost.

8. None appears on behalf of the Respondent No. 1, despite advance service.

9. Ms. Rashmi Sharma, Advocate has entered appearance on behalf of the Respondent No. 2. Learned counsel for Respondent No. 2 states that she has been served with an incomplete copy of the paper book and she, therefore, has no submissions to make on the issues arising in the present petition.

10. This Court has perused the petition and considered the submissions of the Petitioner.

11. In the facts of the present case, the Petitioner has no doubt been negligent in conducting the proceedings and not complying with the orders passed by the Trial Court.

12. It is evident from the records that the Trial Court gave successive opportunities to the Petitioner herein to file his written statement, however, the Petitioner has failed to avail the said opportunities.

13. In the opinion of this Court the impugned orders passed by the Trial Court does not suffer from any infirmity, however, since the matter is pending before the Trial Court and is at the stage of arguments, this Court deems that it would subserve the interest of justice if the defence of the Petitioner are considered and the claim in the suit are decided on merits. It will also preclude arguments of non-consideration of the defence of the Petitioner and save multiplicity of proceedings.

14. In this regard, it would be appropriate to refer to the case of Randhir Singh v. Urvashi Suri passed by the learned Single Judge of this Court decided in CM (M) 717/2023 dated 04.05.2023 after taking note of the judgments of the Supreme Court and this Court, while considering the issue of closing the right of the defendant to file written statement, held that the effort of the Court is always that disputes should ordinarily be decided