Vinay Singh v. Rinku Gupta & Anr

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI: NEW DELHI CM (M) No. 1169/2010 & CM No. 16291/2010 % Judgment reserved on: 10th September, 2010 Judgment delivered on: 16th September, 2010 Sh. Vinay Singh S/o Sh. Jernail Singh J-45, Ground Floor, Dilshad Colony, Delhi-110095 ….Petitioner. Through: Mr. Vinay Gupta, Advocate. Versus 1. Mrs. Rinku Gupta W/o Mr. Harsh Kumar, R/o D-186, D-1, Vasant Lane, Railway Colony, New Delhi-110055 2. Mr. Harsh Kumar, S/o Sh. J.C.Gupta, R/o D-186, D-1, Vasant Lane, Railway Colony, New Delhi-110055 ….Respondents Through: None HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. By this petition under Article 227 of Constitution of India petitioner has assailed order dated 31.7.2010 passed by Senior Civil Judge, Delhi, whereby opportunity to file written statement was declined. 2. Brief facts which emerges from record are that on 1.4.2010 respondents (plaintiffs in the trial court) filed a suit for recovery of possession, arrears of rent, electricity, water and maintenance charges, mesne profits and damages against petitioner (defendant in trial court). 3. Petitioner was served with the summons on 24.4.2010, however, he did not file the written statement, within the statutory period. Accordingly, opportunity for filing written statement by petitioner was closed vide impugned order. 4. It is contended by learned counsel that no cause of action arose against petitioner in view of provisions of Order 7 Rule 11 of the Code of Civil Procedure (for short as "Code") as admittedly the value of suit property minimum being Rs. 4.40 lacs, the Civil Judge has no jurisdiction. 5. It is also contended that after expiry of the first lease deed, tenancy of petitioner was extended by second lease deed which fact has not been disclosed by respondents in their plaint. Moreover, respondents accepted rent up to March, 2010 without any protest. 6. Another contention is that the Court is not powerless not to grant permission to file written statement even after expiry of 90 days. Petitioner has shown ample reason for not filing the written statement within the statutory period of 90 days, firstly, on account of its having preferred application under Order 7 Rule 11 of the Code and secondly, on account of petitioner being hospitalized. 7. In support, learned counsel for petitioner relied upon Smt. Rani Kusum vs. Kanchan Devi and Ors., (2005) 6 SCC 705. 8. Present petition has been filed under Article 227 of the Constitution of India. It is well settled that jurisdiction of this Court under this Article is limited. 9. In Waryam Singh and another vs. Amarnath and another, AIR 1954, SC 215, the court observed; "This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in – "Dalmia Jain Airways Ltd. V. Sukumar Mukherjee", AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." 10. In light of principles laid down in the above decision, it is to be seen as to whether present petition under Article 227 of the Constitution of India against impugned order is maintainable or not. 11. As apparent from record, petitioner was served with summons on 25.4.2010, and as per Order 8 Rule 1 of the Code, he was required to file written statement within 30 days, which is extendable upto a maximum period of 90 days. Though, petitioner has been attending hearings in the Court but he did not file the written statement, in spite of various opportunities granted to him. Instead he moved an application under Order 7 Rule 11 of the Code which is pending disposal before the trial court. 12. The main grounds taken in application under Order 7 Rule 11 of the Code are that; petitioner has undervalued the suit for the purpose