Shalinder Kaur JUDGMENT
Shalinder Kaur, J.
1. The present petition assails the impugned orders dated 28.09.2022 & 01.12.2022 passed by Learned Additional District Judge-04, North-West, Rohini Courts, Delhi (hereinafter as "Trial Court") in CS DJ No. 514 of 2022 titled as "Albert Joseph vs Jitender Kumar Kushwaha & Anr." whereby the learned trial court did not take on record the written statement of the petitioner herein in absence of any application for condonation of delay and subsequently, after filing the application for condonation of delay under Section 5 of limitation Act along with an application under Order VIII Rule 1 read with Section 151 CPC, the same were dismissed thereafter. The petitioner herein is the defendant no. 1 before the learned trial court.
2. Facts in crux are that in 2022, the respondent no. 1 had filed the present civil suit before the learned trial court for declaration, permanent & mandatory injunction against the petitioner and respondent no. 2 with respect to property i.e. F-40/2, in Khasra No. 23/3/1, Pansali Village, Delhi (Locality now knows as Deep Vihar, Delhi 110042) inter alia, from dispossessing the petitioner and respondent no. 2 ("defendants") and further for returning the eight cheques issued by respondent no. 1 in the controversy therein, specifics of which are not relevant for adjudication of the present petition.
3. Thereafter, the summons of the suit were issued to the defendants therein vide order dated 08.06.2022. Subsequently, the petitioner entered appearance and was granted, upon request, 30 days time to file the written statement by the learned Trial Court vide order dated 06.02.2022.
4. However, it is the petitioner's case that the last day prescribed for filing the written statement was 07.08.2022 being Sunday. The draft of which was prepared before that, however, attestation to the affidavit could be done only on 08.08.2022. Hence, the written statement could not be filed on that day. Further, keeping in view that there were court holidays from 09.08.2022 till 11.08.2022, the written statement was filed on 12.08.2022 with a delay of five days.
5. Thereafter, the matter came up for hearing on 28.09.2022 whereby the learned trial court did not allow for the written statement to be taken on record in absence of any application seeking condonation of delay in filing the written statement or seeking extension of time in filing the said written statement.
6. Unsettled by the striking off the written statement from the record, the petitioner on 01.12.2022 filed two applications, one under Order VIII Rule 1 read with Section 151 CPC and another under Section 5 of Limitation Act seeking condonation of delay in filing the written statement. The Learned trial court dismissed both the applications vide its impugned order dated 01.12.2022.
7. Thus, the petitioner has preferred the present petition before this court.
Submissions of the parties
8. The learned counsel for the petitioner submitted that the learned trial court erred in passing the impugned order without calling for any reply from the respondent no. 1 herein and dismissed both the applications.
9. The learned counsel for the petitioner submitted that the learned trial court erred without appreciating proper facts that the petitioner was in a judicial custody at the relevant time.
10. The learned counsel submitted that the learned trial court erred in ignoring the law laid down by the Hon'ble Supreme Court whereby it was he........