J U D G M E N T

MANMOHAN, J (Oral):

1. Present appeal has been filed challenging the order dated 20th January 2020 passed by learned Single Judge in CS(COMM) 261/2017 whereby appellant’s application being IA No. 18393/2019 for extension of time to bring the written statement on record was dismissed. Appellant also prays that the aforesaid application be allowed and his written statement be taken on record.

2. On 20th January, 2020, the learned Single Judge while dismissing the appellant’s application for enlargement of time had observed as under:-

“I.A. 18393/2019 (enlargement of time to file W.S. by D-2)

xxx xxx xxx

13. In the present application, the plea of the defendant No.2 is that subsequent to the order dated 2nd May, 2019 the counsel for the applicant/ defendant No.2 developed some serious ailments and left for heavenly abode on 4th July, 2019 and this fact was brought to the notice of the Court on 18th July, 2019. Thereafter the defendant No.2 engaged another counsel to pursue the present suit. The defendant No.2 claims that to the other counsel all inputs were given and the amount of ₹40,0000/- was also given to the said counsel as cost. The said counsel filed the written statement on behalf of defendant No.2 on 27th August, 2019 vide diary No. 871663/2019 and the same is reflected in the status of the case. However, the written statement was not on record and thus this fact was noted by this Court vide order dated 28th August, 2019. Unfortunately, wife of the second counsel was detected with cancer and the second counsel for the defendant No.2 had to go abroad for his wife’s treatment and thus could not take steps to remove objections in the written statement bringing the same on record. Finally, with the help of one another counsel defendant No.2 again filed the written statement on 4th December, 2019 vide diary No. 1501756/2019, however when the matter was listed on 5th December, 2019 the written statement was still not on record and was lying in objections and thus the opportunity of the defendant No.2 to file written statement as well as affidavit of admission/

denial was closed.

14. Defendant No.2 claims that his written statement had been filed much earlier i.e. on 27th August, 2019 and thus it ought to be taken on record and the defendant No.2 cannot be penalized due to exigencies i.e. first counsel having passed away and second counsel’s wife falling seriously ill.

15. As noted above, while setting aside the order dated 25th April, 2018, proceeding the defendant No.2 ex-parte on 2nd May, 2019 this Court granted 30 days time to the defendant No.2 to file the written statement subject to payment of cost of ₹40,000/-. Admittedly, as per the application the cost of ₹40,000/- was not given to the first counsel but to the second counsel who was engaged in August, 2019. Further, it is the case of the defendant No.2 himself that he had filed an application for waiver of the cost, however till date the said application has not seen the light and is not on record. The first counsel for the defendant No.2 passed away on 4th July, 2019 whereas 30 days period for filing the written statement with defendant No.2 was over on 1st June, 2019. There is no explanation whatsoever as to why the written statement was not filed on or before 1st June, 2019. Orally, defendant No.2 argues that his mother passed away on 2nd June, 2018.”

3. Learned counsel for the appellant states that the learned Single Judge failed to appreciate that non-removal of objections in respect to the written statement of the Appellant was beyond the control of the Appellant. He emphasizes that unfortunate incidents happened to the previous two counsel for the appellant, namely, that first counsel for the appellant died on 4th July 2019 and the second counsel’s wife was diagnosed with cancer. He, therefore, prays that the time for filing the written statement be extended.

4. In support of his submission, learned counsel for the appellant relies upon the judgement of t