The court emphasized that procedural errors should not override substantive justice, prioritizing the substance of applications over technicalities.

JUDGMENT :

RAVINDER DUDEJA, J.

1. Petition filed under Article 227 of the Constitution of India impugns the orders dated 21.07.2022 and 01.07.2023 in CS 1831/2019 titled Gopal Krishna Shukla Vs. Rajeev Shukla passed by the learned trial court.

2. Petitioner is the son of the respondent and is defendant in the Suit for Permanent & Mandatory Injunction and Recovery of Damages filed by the respondent against him.

3. Summons for Settlement of Issues were sent to the petitioner on04.12.2019, returnable for 29.01.2020.

4. As per list of dates furnished by the petitioner, summons were received on 14.12.2019. Petitioner appeared before the court on 29.01.2019 and sought time to file written statement.

5. Written Statement along with an application for condonation of delay was filed before the court digitally on 22.09.2020. In November 2021, he filed amended written statement.

6. Vide order dated 21.07.2022, trial court dismissed the application for condonation of delay.

7. Respondent filed an application under Section 151 CPC, seeking striking off the defence. The said application was allowed vide order dated 01.07.2023 and the written statement along with amended written statement were taken of the record.

8. Learned counsel for the petitioner has submitted that petitioner had handed over all the documents and information to his counsel by March 2020 to file written statement, but unfortunately due to Covid- 19 Lockdown, the said written statement could not be filed in March 2020 as the courts were shut due to Covid restrictions. It has been further submitted that courts resumed working through on-line VC hearing after July 2020, whereupon, the counsel of petitioner filed written statement along with application for condonation of delay on22.09.2020 digitally. It is further submitted that limitation period has stopped running from 15.03.2020 by the orders passed by the Supreme Court and thus the actual delay in filing the written statement was only 60 days.

9. It is also argued that the trial court dismissed the application forcondonation of delay on mere technical ground that the said application was under Section 151 CPC and not under the Limitation Act. It is also submitted that on the contrary, the learned trial court allowed the application of the respondent under Section 151 CPC for striking off the defence, even though, the said application should have been filed under Order 11 Rule 21 CPC.

10. The application has been vehemently opposed by the learned counsel for the respondent submitting that respondent is a senior citizen and aged about 87 years and suffering from number of ailments. Despite this, petitioner caused delay in filing the written statement, and therefore, the trial court has rightly discarded the written statement filed by him and struck of his defence.

11. The impugned order dated 21.07.2022, which is under challenge, is reproduced below:-

“21.07.2022 Present:

Sh. DD Sharma, Ld. counsel for plaintiff;

Sh. Deepak Chand Pttndey, Ld. counsel for defendant.

Reply has been filed by the defendant to the application of the plaintiff for striking off the defence.

Also defendant has filed amended written statement alongwith condonation of delay application. WS has also been previously filed by the defendant which is still not taken on record as the condonation application with respect to previous WS is still pending.

It is requested by Ld. counsel for defendant that the counsel who is supposed to argue on this application is not available as he is not well.

Sh. Deepak Chand Pandey is not a proxy counsel in thismatter and.he has himself submitted that his name is also on the vakalatnama and Ld. counsel for defendant has not given any sufficient reason for not advancing arguments today when he is himself one of the counsel in this matter.

It is submitted by the plaintiff that he is 84 years old seniorcitizen and multiple adjournments cause difficulty to him.

ln these circumstances, adjournment is allowed subject to cost of Rs.7,000/- to be p