IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 287 of 2007 Date of decision: 5.6.2008 Baba Jagtar Dass Petitioner. Versus Rajiv Goel Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. R.P.Singh, Advocate. For the respondent: Mr. Ramakant Sharma, Advocate, alongwith the respondent. Deepak Gupta, J. (oral) This petition is directed against the order dated 22.9.2007 whereby an application filed by the respondent (here-in-after referred to as the defendant) under Order 8 Rule1 for extension of time for filing the written statement has been allowed by the learned Civil Judge (Sr. Division), Shimla. The defendant in his application stated that he could not file the written statement within time as one general power of attorney and lease deed executed in favour of the defendant and duly registered in the office of Sub Registrar, Shimla, had been misplaced by him and he 1 Whether the reporters of the local papers may be allowed to see the Judgment? was not aware of their registration numbers and therefore, could not file the written statement in time. Reply was filed to this application and it was contended that earlier a suit filed by the defendant with respect to the same property. This suit was dismissed in default and the appeal against the said order dismissing the suit in default has also been rejected. The petitioner (here-in-after referred to as the plaintiff) contested the application on these grounds. The learned trial Court allowed the application and permitted the defendant to file written statement. Normally, this Court while exercising its supervisory jurisdiction under article 227 is reluctant to interfere in the discretionary orders passed by the subordinate Courts. In the present case, the plaintiff prayed that this Court should exercise its supervisory jurisdiction since the defendant had set up a false plea in the application under Order 8 Rule 1. The plaintiff alongwith this petition has filed an affidavit and enclosed the copy of the plaint filed in the earlier suit. Relevant portion of which reads as follows: “That the defendant is the owner of building known as Baba Shri Chand Mandir, standing on Khasra No.541/2, Station Ward, Bara Shimla. That the defendant had appointed Shri Niranjan Dass Chela Baba Jagtar Dass as his Attorney vide General Power of Attorney dated 5.7.1993 duly registered in the office of the Sub Registrar (Urban), Shimla at Serial No.187 dtd. 6.7.1993, for management of the above said building. That the defendant through his duly constituted power of attorney on 23.4.1996 created a lease for 99 years in favour of the plaintiff in respect of one room measuring 16’9” x 18’9” alongwith verandah in front of it in the building described above. A lease deed was duly executed in favour of the plaintiff and has been registered in the office of Sub Registrar (Urban) Shimla at Serial No.67 dtd. 30.4.1996 (A copy of the lease deed is being filed herewith).” Shri R.P.Singh, learned counsel for the petitioner, contends and rightly so that the defendant not only knew the registration number but had pleaded the same in the earlier suit. He had also filed a copy of the lease deed in the earlier suit and the appeal against the dismissal of the earlier suit was pending when this application was filed and therefore, the averments made by the defendant in application under Order 8 Rule 1 are absolutely false and, as such, the order of the trail Court should be set aside. On the other hand, Shri Ramakant Sharma, learned counsel for the respondent, has contended that this was not a ground taken before the trial Court and a fresh ground is being taken in this present petition, which should be permitted. I have carefully gone through the rival contentions of the parties and also the peculiar facts of this case. In view of what had been stated in the earlier plaint, as quoted here-in-above, it is apparent that the defendant did not approach the trial Court with clean hands. He tried to mislead the Court by making false averments. I am constrained to note that the same counsel was representing the defendant in the earlier suit where he was a plaintiff and also in the present suit. When the appeal against the dismissal of the earlier suit was pending how could the counsel or the party have been unaware of what had been pleaded in the earlier suit. Unfortunately, the petitioner in the present case has also been remiss. It appears that the grounds taken in the present petition were not taken before the trial Court. The trial Court did not have the benefit of the material placed before me while deciding the matter, otherwise the trial Court may have taken a different view. I have taken into consideration aforesaid facts in view and I feel that interest of justice in the present case will be served if the defendant is penalized for making false averments in the Court. However, the penalty of striking out his defence could be too severe. I am of the view that no party should be condemned unheard and merely by extension of time no prejudice has been caused to the plaintiff. The defendant-respondent has a right to contest the suit and file written statement. The written statement has already been filed. This shall, however, be subject to payment of a further amount of Rs.15,000/- as costs. Exemplary costs have been imposed keeping in view the patently false stand taken by the defendant. Out of these costs, Rs.7,500/- shall be paid to the plaintiff and Rs.7,500/- to the District Bar Association, Shimla. The District Bar Association, Shimla, shall utilize the costs only for purchase of books. The costs be positively paid/deposited on or before the next date fixed before the trial Court. If the costs are not paid/deposited in terms of this order the written statement filed by the defendant shall be deemed to have not been taken on record. The petition is disposed of in the aforesaid terms. 5th June, 2008 (Deepak Gupta), J. ™