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2022 (5) TMI 1420 - HC - Indian LawsCondonation of delay of 3330 days caused in filing the written statement - non filing of the written statement by their advocate - Suit for declaration and permanent injunction - HELD THAT - The consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice - Further it is trite law that a party should not suffer due to the in action on the part of the advocate and that the matter should be decided on merits rather than on technical ground. The Court is of the considered view that valuable right of the defendant Nos. 3 and 4 and petitioners herein should not be defeated by declining to condone the delay which has occurred for the in action on the part of their advocate. More so when despite service the respondents herein have chosen not to appear before this Court and to controvert the petition. Accordingly the Court is inclined to exercise discretion in favour of the petitioners however with some exemplary costs. Petition allowed.
Issues:
1. Petition under Article 227 to set aside an order closing the right to file a written statement. 2. Failure to file a written statement due to the inaction of the advocate. 3. Request to condone the delay in filing the written statement. 4. Application of legal principles regarding condonation of delay. 5. Upholding the right of the defendants to defend the suit despite the delay. Issue 1: The petitioners, originally defendant Nos. 3 and 4, filed a petition under Article 227 seeking to set aside an order closing their right to file a written statement in Special Civil Suit No. 447 of 2010. Analysis: The petitioners sought to challenge the order dated 6.2.2020, which closed their right to file a written statement in the civil suit. Despite due service, the respondents did not appear before the court, leading to the matter proceeding ex-parte. Issue 2: The failure to file the written statement was attributed to the inaction of the advocate representing the petitioners. Analysis: The petitioners' advocate failed to inform them about the need to file a written statement, resulting in the closure of their right to do so on 1.5.2012. The delay in filing the written statement was caused by the advocate's negligence in not updating the petitioners about the case's status. Issue 3: The petitioners requested the court to condone the delay of 3330 days in filing the written statement. Analysis: The petitioners argued that they promptly acted upon learning about the failure to file the written statement, hiring a new advocate and filing the necessary application. Citing legal precedents, they emphasized the importance of showing a sufficient cause to condone the delay, especially when no negligence or mala fides can be attributed to the party. Issue 4: The judgment discussed legal principles regarding the condonation of delay, citing relevant case laws to support the petitioners' request. Analysis: The court referred to various legal precedents emphasizing that the courts should adopt a liberal approach in construing "sufficient cause" for condoning delay, especially when no negligence, inaction, or mala fides are involved. The court highlighted the need to balance substantial justice with the rights accrued to the parties due to delay. Issue 5: The judgment upheld the right of the petitioners to defend the suit despite the delay caused by the advocate's inaction. Analysis: The court, considering the circumstances and the failure of the respondents to appear, exercised discretion in favor of the petitioners. It emphasized that the valuable right of the petitioners should not be defeated due to the advocate's inaction. The court set aside the impugned order, allowing the petitioners to file their written statement within 15 days upon payment of costs. This detailed analysis of the judgment highlights the key issues involved, the arguments presented by the parties, and the legal principles applied by the court in reaching its decision to set aside the order and allow the petitioners to file their written statement.
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