The instant case is an appeal under Article 227 of the constitution of India against the order passed by Additional District Judge in a case where the petitioner herein who is a defendant in the trial court has sought setting aside of the order whereby delay is not condoned which was filed under XXXIX Rules 1 and 2 the Code of Civil Procedure, 1908 (“CPC”, for short).
Firstly, the case before the trial court is that the respondent herein who is a plaintiff in the trial court had filed a suit against the petitioner/defendant for declaration, mandatory and permanent injunction, rendition of accounts, and damages on account of failure to perform a contract by the defendant.
Further, Summons of the suit and the application were served upon the petitioner/defendant on 11th January 2020. However, the written statement was not filed until 20th August 2020. An application was filed by the petitioner/defendant under Order VIII Rule 1 CPC seeking condonation of delay in filing the written statement and reply to an application under Order XXXIX Rules 1 & 2 CPC but the delay was not condoned based on “no plausible explanation and coherent reason” explaining the delay in filing the written statement.
Relevant to state here the reason stated by the petitioner/defendant is that “the working of the office of the counsel for the petitioner/defendant could normalize only by the middle of August 2020”
The Hon’ble bench in the case herein observed that “The powers of the court under Order XXXIX Rules 1 & 2 CPC to condone delay has to be used in appropriate cases and that a litigant cannot claim condonation of delay as a matter of right because the procedure is the handmaiden of substantive justice.
Moreover, it is noted by the hon’ble bench that “the rights accruing to the opposite party on account of the delayed action of other party need to be also kept in mind.”
It is further observed that “The reasons which will be given for explaining the delay in filing written statement are of paramount importance and not the length of the delay in such filing. The shortness of delay alone is not the reason which will suffice for the exercise of discretion to condone it but Cogent and clear explanations which will lead the courts to condone the delay, even if filing happens after five years in filing the pleadings.”
