Pradeep Nandrajog, J.
1. Vide order dated 17.2.2003, is No. 9602/2002 was allowed. Applicant/defendant was granted permission to file a written statement within one week subject to payment of cost in sum of Rs. 15,000/-. Plaintiff challenged the said order in appeal. Vide order dated 14.1.2005 passed in FAO(OS) No. 107/2003, by consent of parties, order dated 17.2.2003 was set aside. is No. 9602/2002 was revived with a direction that the same would be decided on merits. Accordingly, this order disposes of is No. 9602/2002.
2. Plaintiff has filed the present suit for recovery of possession and mesne profits. Plaintiff is a registered society established by Swami Shradhanand and is engaged in the activity of rendering charitable service to the society by upbringing and educating orphans, destitute boys and girls.
3. Subject matter of the suit is property bearing No. 13, Barakhamba Road. As per the plaint, property belonged to late Lala Narain Dutta as a perpetual lessee under the Government of India vide lease deed dated 31.5.1932.
4. Lala Narain Dutta died on 7.11.1950. He was survived by his widown, a son-Krishna Dutta and three daughters being Smt. Vidyawati, Smt. Sumitra Sahai and Smt. Kaushlaya Devi Dhawan.
5. After the death of Lala Narain Dutta, his son Krishna Dutta asserted absolute ownership of the property and got the same mutated in his name in all official records. It is asserted in the plaint that till he died on 24.9.1979, Krishna Dutta exercised complete ownership right in the property. By way of illustration of the assertion of ownership rights, it is pleaded that in the year 1966, as complete owner of the property, Krishna Dutta, after obtaining sanction from NDMC raised further constructions It is asserted that Krishna Dutta paid all dues and taxes qua the property.
6. Krishna Dutta died issueless on 24.9.1976. He bequeathed the property by and under a will dated 7.6.1976. Beneficiary was the plaintiff but life interest was created in favor of his wife, M Rs. Rani Dutta.
7. It is further asserted in the plaint that M Rs. Rani Dutta obtained letters of administration in respect of the will dated 7.6.1976. The sisters of Krishna Dutta supported the will. Letter of administration was granted.
8. It is asserted in the plaint that defendant is one of the daughters of M Rs. Kaushlaya Devi Dhawan. Her husband, Sh.B.S. Bedi had been corresponding with the plaintiff. Correspondence shows that title of the plaintiff in the property as per the will dated 7.6.1976 executed by Krishna Dutta was accepted.
9. It is further asserted in the plaint that the defendant and her husband were invited by M Rs. Rani Dutta to live with her in a portion of the suit property, purely as a licensee. It is further asserted in the plaint that one M Rs. Sumitra Sahai, sister of M Rs. Rani Dutta asserted title to the suit property. She filed a suit numbered as 785/94 in this court. Present defendant was imp leaded as defendant No. 8 in the said suit. She did not assert any title in the property.
10. It is further asserted in the plaint that under the Will executed by Krishna Dutta, he had bequeathed a sum of Rs. 50,000/- to each of his three sisters. Said sum was paid by his wife Rani Dutta. Each of the three sisters acknowledged receipt of the sum of Rs. 50,000/-.
11. On the allegations aforesaid, possession and mesne profit is claimed in respect of the part of the suit property in possession of the defendant.
12. Summons in the suit were issued to the defendant vide order dated 29.11.2001, returnable for 18.3.2002. Summons were served upon the defendant on 6.12.2001. On 18.3.2002, defendant sought and was granted six weeks' time to file a written statement. Written statement being not filed within the time granted by this court, plaintiff filed is No. 4546/2002 under Order 8 Rule 10 CPC, praying for a decree. Vide order dated 10.5.2002, notice was issued in is No. 4546/2002, returnable for 31.5.2002.
13. On 31.5.2002, taking note of the fact that written statement was not filed, is No. 4546/2002 was disposed of with a direction that the plaintiff would lead evidence by way of an affidavit.
14. It has to be noted that order dated 31.5.2002 does not record that the defendant prayed for further time to file written statement or even opposed is No. 4546/2002.
15. Plaintiff led evidence on affidavit.
16. After plaintiff had led evidence and the proved documents were exhibited, defendant filed is No. 9602/2002 on 10.10.2002. Inherent powers of the court have been invoked under Section 151 CPC. Prayer made is to recall the order dated 31.5.2002 and grant time to the defendant to file a written statement.
17. It is stated in is No. 9602/2002 that the defendant is an old lady aged 77 yea Rs. She fell sick and had to be shifted to London where her daughter resiles for treatment. A certificate dated 8.8.2002 from a Cardiologist in London has been annexed in support of the plea of sickness.
18. Learned senior counsel, Sh.V.P. Choudhary for the plaintiff urged that where a party neglects to avail of a right under the Code of Civil Procedure, inherent powers under Section 151 CPC cannot be invoked. Counsel urged that inherent powers cannot be exercised to override express provision of law. Mr. Chaudhary relied upon the following decisions:-
(i) : [1971]1SCR207 Nainsingh v. Koonwarjee and Ors.;
(ii) : [2002]1SCR586 P.Purushottam Reddy and Anr. v. Pratap Steels Ltd.;
(iii) : 85(2000)DLT60 Bansal Trading Corporation v. Morgan Asia Ltd.;
(iv) (88) 2000 DLT 377 Kuldeep Singh v. Oriental Bank of Commerce;
(v) : [1999]2SCR1189 Budhia Swain and Ors. v. Gopinath Deb and Ors.;
(vi) : [1964]5SCR946 Arjun Singh v. Mohindra Kumar.
19. Relying upon : [1983]3SCR962 Cotton Corporation of India Limited v. United Industrial Bank Limited and Ors. , counsel urged that inherent powers cannot be exercised to nullify a statutory provision.
20. Sh. V.P. Choudhary, learned senior counsel further submitted that once time granted under Order 8 Rule 1 for filing of a written statement expires, it cannot be extended by exercising power under Section 151 CPC. Counsel relied upon the following decisions:-
(i) : [2002]SUPP1SCR469 Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi;
(ii) : AIR2003Kant426 Smt. Savitha Gupta v. Smt. Nagaratha and Ors. ;
(iii) : AIR2004Kant271 Liyakhath Ali v. H.N. Lohiteshwar;
(iv) 2004 (8) AD (Del) 98 Kamal Narain Kapoor and Anr. v. State.
21. Further submission made by learned senior counsel for the plaintiff was that failure to file a written statement attracts Order 8 Rule 10 CPC and once this stage is crossed, defendant cannot be permitted to file a written statement. Counsel relied upon:-
(i) 2001 (7) AD (Del) 611 Grover Leasing Ltd. v. LML Fibres Ltd. and O Rs. ;
(ii) : 84(2000)DLT672 M/s Premier Auto Electric Ltd. v. Jitender Kumar Budhiraja.
22. Final submission made was that the amendment to Order 8 Rule 1 to the Code of Civil Procedure by Act No. 22 of 2002 makes the legislative intent clear, namely, written statement should not be permitted to be filed beyond 90 days of service of summons on the defendant.
23. The Hon'ble Supreme Court, in the decision reported as : [1955]2SCR1 Sangram Singh v. Election Tribunal observed that the Code of Civil Procedure is an instrument to facilitate justice and further the ends of justice. It is not a penal enactment for punishment. It is not a thing designed to trip people. It was held:-
There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be contemned unheard, that decisions should not be reached behind their backs, that proceeding that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.
24. Their Lordships of the Supreme Court reminded the courts that various factors have to be taken into consideration and carefully weighed, endeavor being to avoid snap decision and to afford litigants a real opportunity of fighting out their cases fairly and squarely. Cost being adequate compensation for the other party.
25. Their Lordships, at page 16 of the report, observed that courts have unlimited discretion provided always that the discretion is judicially exercised and is not arbitrary.
26. A learned single Judge of this court, Justice V.S. Deshpande as his Lordship then was, taking note of the decision of the Supreme Court in Sangram Singh's case (Supra), in his Lordship's decision reported as : AIR1974Delhi35 Sada Ram v. DDA held in para 9 and 10 that notwithstanding Order 8 Rule 10, inherent powers of the Court were available to grant extension of time for filing of a written statement even after an order was passed requiring the plaintiff to lead evidence in the absence of a written statement being filed within the time originally granted by the court. His Lordship also noted Section 148 of the Code of Civil Procedure and held that there was no time limit prescribed for enlargement of time granted by the court for the doing of an act prescribed or allowed by the court.
27. The view aforesaid of a learned Single Judge of this court has been followed with approval by the Calcutta High Court in the decision reported as : AIR1987Cal111 R.C. Bhattacharyya v. Corporation of Calcutta. It was held that a court would be permitted to grant time to the defendant to file a written statement at any stage prior to the pronouncement of judgment.
28. I need not, thereforee, deal with the plethora of judgments relied upon by counsel for the plaintiff for the reason they are not dealing with the issue which arises for consideration in the present proceedings.
29. I would accordingly hold that is No. 9602/2002 is maintainable. That takes me to the second limb of the matter, namely should the application be sustained?
30. Though this court would have unlimited discretion to enlarge the time for filing of the written statement, discretion has to be judicially exercised and not on the notions of justice, personal to this court.
31. Defendant is seeking to put the clock back by requiring the court to enlarge the time for filing the written statement. Defendant must prima-facie show some right which would be adversely affected if she is not even allowed to defend the present proceedings. Defendant must also show good cause for not filing the written statement within the time originally granted.
32. Being served with the summons in the month of December 2001, defendant did not file a written statement even by 31st May, 2002.
33. As per the application, defendant left India on 28.3.2002 and returned on 14.9.2002. She claims that her departure was sudden. A certificate of a Cardiologist had been relied upon.
34. The certificate merely records chest pain and some cardiac disorder. It does not record a serious ailment which would confine the defendant to the four corners of her house.
35. There is no Explanationn as to why the defendant did not file a written statement even till March. Admittedly, service of the summons was effected on the defendant in December, 2001.
36.It has to be noted in this context that the defendant is claiming an interest in the property through her mother. But the conduct of the defendant's mother in her lifetime was to the contrary. Evidenced by the written statement filed by the defendant's mother in the application filed by M Rs. Rani Dutta under Section 278 of the Indian Succession Act, mother of the defendant accepted the will executed by her brother. Certified copy of the said written statement is on record. Plaintiff has proved the same as Exh.PW.1/6.
37. When M Rs. Rani Dutta obtained letters of administration to the estate of Sh.Krishna Dutta, she was required to file an administration bond. At that stage, husband of the defendant wrote a letter dated 13.9.1978 to the plaintiff. He wrote as under:-
Secretary
Arya Orphanage
Pataudi House , Darya Ganj,
Delhi.
Dear Sir,
1. I am enclosing herewith a photostat copy of the last Will dated 7th June, 1976 of Late Shri Krishan Dutta and also the details of his estate as reported to the Assistant Controller of Estate Duty.
2. The Estate Duty return filed with the Assistant Controller of Estate Duty showed the value of the Estate as under:
Immoveable Property Rs. 7,47,100.00Moveable Property Rs. 11,93,288.00Less Liabilities Rs. 1,08,650.00Nett. Worth Rs. 18,31,738.003.On the basis of the provisional Assessment the Assistant Controller of Estate Duty raised a demand for Rs. 4,25,000/- towards payment of Estate Duty. As sum of Rs. 2,68,700.73 was paid prior to the issue of the certificate under Section 57. A copy of the certificate is attached. A sum of Rs. 37,435/- has been paid since the issue of the certificate. The balance is payable in half yearly Installments. Part of the amount paid towards estate duty has been by attachment of the liquid assets of the Estate but some money has been advanced to the Estate by M Rs. Rani Dutta.
4. An application was filed in the Court of District Judge, Delhi, by M Rs. Rani Dutta, for the issue of Letters of Administration. The District Judge on 24th August, 1978 ordered the issue of Letters of Administration on payment of Stamp Duty, production of Estate Duty Clearance Certificate and an Administrative Bond. A copy of the order of the District Judge is attached. M Rs. Rani Dutta shall advance the necessary funds to the estate for payment of Stamp Duty amounting to approximately Rs. 70,000/-. The Estate duty Clearance Certificate as mentioned earlier has already been obtained and the original filed in the court. Only the Bond for the full value of the Estate has to be executed by M Rs. Rani Dutta along with a surety for a like amount. The surety can either be a individual (s) or institution who own immoveable property of this value within the jurisdiction of the District Judge, Delhi.
5. M Rs. Rani Dutta has been having some difficulty in finding somebody who could stand as surety for her for the due performance of the terms of the Will. Though the value of the house at 13, Barakhamba Road has been shown as Rs. 2,62,170/- due to a legal lacuna it is well known that the present market value of the house is well over Rs. 30 lacs. In case the area is declared commercial during the next few years which is extremely likely, the value of the house will be well over a crore of rupees. I write to enquire if you as the single largest beneficiary in the ultimate analysis will you consider signing the bond along with M Rs. Rani Dutta. A rough draft of the bond required to be executed is enclosed for your information and consideration.
An early reply will be highly appreciated.
Thanking you.
Yours faithfully,
Sd/-
38. This court has been noticing that in many cases where the defendant has no substantial defense, a vague written statement is filed and just before the stage of issues is reached, out pops an application for amendment. All kinds of ruse are contrived to delay trial.
39.I do not find that the defendant has shown sufficient and good cause to be entitled for enlargement of time for filing the written statement. I have broadly touched upon the merits of the controversy in the context of the past conduct of the predecessor-in-interest of the defendant and the husband of the defendant to bring on record the fact that neither the defendant's mother nor the defendant ever questioned the title of the plaintiff to the suit property under the will of Krishna Dutta. At no point of time was the title of Krishna Dutta challenged. Rather, conduct of mother of the defendant and the defendant herself shows acquiescence qua the title of Krishna Dutta and thereafter the plaintiff.
40. I find no merit in is No. 9602/2002. Dismissed.
41. No costs.