A party who fails to show diligence in filing a written statement within the statutory period and the extended period may have their right to file a written statement forfeited.

$~67 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:13.12.2023 + CM(M) 2053/2023 & CM APPL. 64414/2023 SHALINI GOLA ..... Petitioner Through: Mr. Pradeep Teotia and Mr. Gaurav Dalal, Advocates versus ANAND GOYAL ..... Respondent Through: None %

CORAM:

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

J U D G M E N T

MANMEET PRITAM SINGH ARORA, J (ORAL)

CM APPL. 64415/2023 (for exemption)

Allowed, subject to all just exceptions.

Accordingly, the present application stands disposed of.

CM(M) 2053/2023 & CM APPL. 64414/2023

1. This petition filed under Article 227 of the Constitution of India impugns the orders dated 20.12.2022 and 03.11.2023 passed by District Judge (Commercial Court), Shahdara District, Karkardooma Courts, Delhi (‘Trial Court’) in CS (COMM.) No. 566/2022, titled as Anand Goyal v.

Ms. Shalini Gola

1.1. The Petitioner here is the defendant and the Respondent herein is the Signature Not Verified Digitally Signed CM(M) 2053/2023 Page 1 of 5 plaintiff before the Trial Court.

1.2. The summons of the commercial suit filed for recovery of possession and arrears of rent by the Respondent herein was served upon the Petitioner on 16.11.2022.

1.3. The Trial Court vide first impugned order dated 20.12.2022 recorded that the defendant i.e., Petitioner herein despite due service of summons on 16.11.2022 had failed to file her written statement and therefore, closed her right to file the written statement and proceeded ex-parte.

1.4. The counsel for the Petitioner filed an application on under Order IX Rule 7 of the Code of Civil Procedure, 1908 (‘CPC’) on 26.09.2023 seeking setting aside of the ex-parte order dated 20.12.2022. The receipt of the summons was not disputed. The ground urged in the said application was that the previous counsel for the Petitioner before the Trial Court was not diligent in conducting the case on behalf of the Petitioner herein i.e., defendant.

1.5. The Trial Court vide second impugned order dated 03.11.2023 has dismissed the application filed by the Petitioner under Order IX Rule 7 CPC. 2. The learned counsel for the Petitioner states that there is no dispute that the summons in the suit were duly served on 16.11.2022 and again 19.12.2022 as recorded in the impugned order dated 03.11.2023. The order dated 03.11.2023 reads as under: -

“Perusal of record shows that summons were directed to be issued to the defendant vide order dated 02.11.2022 and the matter was directed to be put up for 23.11.2022. On 23.11.2022, none has appeared for the defendant despite repeated calls and waiting till 12:10 pm and despite service of summons on 16.11.2022. As 30 days stipulated period for filing of WS had not expired, therefore, it was directed that WS be filed within the stipulated period of 30 days.

Further, as the plaintiff had pressed for interim injunction and Signature Not Verified Digitally Signed CM(M) 2053/2023 Page 2 of 5 defendant had failed to appear despite service, the application of the plaintiff under Order XXXIX Rule 1 and 2 CPC was disposed of and defendant was restrained from creating any third party interest or part with possession of the suit premises i.e. Shop of Ground Floor in the name of M/s Balaji Collection at C-339, Vivek Vihar, Phase-I, Delhi-95, Further, as defendant had failed to appear, it was further directed that the copy of the order be sent to the defendant through Process Server for intimation and compliance on filing of PF. PF was filed and the said notice was also received by the defendant on 19.12.2022. On the notice, defendant had signed as a token on receiving of the notice and has also made an endorsement “2+1” which shows that copy of order was also served alongwith the notice. On the summons sent for the date 23.11.2022 which were received by the defendant on 16.11.2022 also there is an endorsement made by the defendant as ‘page 40+1’. Thus, the defendant was clearly served on 16.11.2022 with the summons of the suit and plaint and again on

19.12.2022 with the order of the Court