- (1.) TARUN Agarwala, J. A suit for eviction and for arrears of damages was filed. The summons was served upon the defendant on 12-7-2004. The written statement was to be filed by 12-10-2004, i. e. , within 90 days from the date of the service of the summons. The defendant did not file the written statement within the said period. On 21-10-2004, an adjournment application was moved by the defendant praying for an adjournment on the ground that his Counsel was suffering from a viral fever. The Court by an order dated 28-10-2004 rejected the application of the defendant and directed that the case to proceed ex parte, since the defendant had not filed a written statement. An application for recall of this order was filed by the defendant alleging that the written statement was ready, but could not be filed, as his Counsel was unwell, and therefore, prayed that the order be recalled and the defendant be permitted to file the written statement. The Court below, after hearing the parties, allowed the recall application and recalled its order dated 21- 10-2004 and permitted the defendant to appear and contest the matter, but debarred the defendant from filing his written statement. A second application was filed by the defendant again praying that the defendant should be permitted to file the written statement, as there was only a small delay and that there was no intention on his part to delay the proceedings. This application was rejected by an order dated 13-7-2006 on the ground that no written statement could be permitted to be filed after the expiry of 90 days. Consequently, the writ petition.
(2.) HEARD Sri Ashish Srivastava, the learned Counsel for the petitioner and Sri B. B. Paul, the learned Counsel for the respondent. The learned Counsel for the respondent submitted that the order dated 4-2-2005 had become final and that no review application nor a revision was filed against the said order, and therefore, the said order could not be set aside in the present proceedings under Article 227 of the Constitution of India. The learned Counsel for the respondents submitted that the petitioner had an alternative remedy against the Order dated 13-7-2006 by filing a revision under Section 115 of the Code of Civil Procedure. The learned Counsel for the respondent further submitted that in view of the provision of Order VIII Rule 1 of the C. P. C. , no written statement could be filed after 90 days, inasmuch as, the said provision is mandatory in nature and that time could not be extended beyond 90 days for the purpose of filing the written statement.
(3.) IN the opinion of the Court, the submission made by the learned Counsel for the respondents is bereft of merit. In the opinion of the Court, this is a fit case where the Court should exercise its power under Article 227 of the Constitution, rather than delegating the petitioner to a remedy of filing a revision. Substantial justice is required to be done rather than take a technical approach in the matter. The Supreme Court in the case of State of Nagaland v. Lipok AO and Ors. , JT 2005 (4) SC 10, held "when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay";