IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 75 of 2008. Date of Decision: 20.6.2008. ________________________________________________________________ Sh.S.K. Sood … Petitioner Versus The Indian Institute of Advance Study … Respondent ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr.Ajay Kumar, Advocate For the Respondent : Mr. Sandeep Sharma, Assistant Solicitor General. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition under Article 227 of the Constitution of India is directed against the order dated 6.12.2007 passed by the learned Fast Track Court, Shimla whereby he has struck off the defence of the petitioner (hereinafter referred to as the defendant). This case is a classic example of how an unscrupulous litigant can delay the proceedings on one pretext or the other. The respondent- Indian Institute of Advance Study (hereinafter referred to as the plaintiff) filed a suit for recovery of a sum of Rs.5,48,022.90 from the defendant on the ground that he had illegally occupied the premises and as such was liable to pay penal rent alongwith interest. The 2 suit was filed on 21st August, 2002. Notices were ordered to be issued to the defendant. He put in appearance on 10th December, 2002 when Shri S.V. Sharma, Advocate appeared for him. The case was listed for filing written statement on 8th January, 2003 when another opportunity was sought to file written statement. The case was adjourned to 7th March, 2003. On the said date the defendant filed an application under Section 10 CPC for stay of the suit and another application under Section 9 read with Order 7 Rule 11 CPC for rejecting the plaint. No written statement was filed. Replies to these applications were filed on the very next date i.e. on 9th April, 2003. Thereafter, the suit was adjourned at the request of the defendant. The suit till then was being tried by the learned Addl. District Judge, Shimla and it was then transferred to the Fast Track Court, Shimla. On 20.10.2003 the suit was taken up by the Fast Track Court and adjourned for 6.1.2004 for consideration on the aforesaid two applications. Unfortunately, no Presiding Officer was posted on that date and case was adjourned from time to time and it appears that it was re-transferred to the Court of Addl.District Judge, Shimla. On 6.8.2004 notice was issued to the defendant as Sh.S.V. Sharma, Advocate stated that he had returned the 3 brief to the defendant. Defendant put in appearance again on 8th October, 2004. On this date the plaintiff filed an application under Order 8 Rules 1, 5(2) and 10 CPC praying that the suit be decreed in view of the fact that the written statement had not been filed. Reply to this application was filed on 27.12.2004 and this application was contested. The case was again transferred to the Fast Track Court and on 11.1.2006 defendant filed another application under Order 7 Rule 14. Reply to this application was also filed. In between the Presiding Officer was on leave and when the Presiding Officer came again the defendant did not appear and he had to be again served to ensure his presence. It was only on 6th November, 2006 that the defendant filed an application under Order 8 Rule 1 CPC seeking leave to file the written statement. Alongwith the application written statement was filed. On 28.5.2007, learned counsel appearing for the defendant withdrew all the applications filed by him and the matter was adjourned for consideration of the application of the plaintiff under Order 8 CPC. This was heard and decided vide the impugned order on 6.12.2007. The learned Fast Track Court came to the conclusion that the defendant had delayed the proceedings by more 4 for than 4 years and even after the application under Order 8 CPC had been filed he did not care to file the written statement for almost 2 years. The Fast Track Court has observed that this is a classical example of dilatory tactics adopted by the defendant to delay the proceedings on one way or the other. He, therefore, partly allowed the application filed by the plaintiff. Though he did not decree the suit, he struck off the defence of the defendant. Hence, the present petition. Strictly speaking, I find that jurisdictionally the learned Fast Track Court has not committed any error while passing the order. However, this Court has always been of the opinion that no party should be condemned unheard. On perusal of the record I also find that though the defendant has been grossly negligent and has in fact been employing dilatory tactics to delay the proceedings on one pretext or the other the penalty of striking off his defence appears to be a bit too harsh. The learned Fast Track Court while striking off the defence lost sight of the fact that the written statement was already on record. Since the evidence had to be led and no further delay would be occasioned it would have been better if the defendant had been permitted to place on record his written statement and 5 contest the suit on merits. In my view the plaintiff could have been compensated in such a case by awarding exemplary costs. Exemplary costs are required to be awarded in such cases not only to compensate the other side but also to curb the tendency of certain mischievous litigants of filing frivolous applications at every stage only with a view to delay the result of the proceedings. Therefore, in exercise of the powers vested in this Court under Article 227 of the Constitution of India, I allow this petition and set-aside the order of the learned Fast Track Court Shimla. Keeping in view the aforesaid discussion, I am of the view that keeping in view the entire facts and circumstances of the case, the written statement filed by the defendant may be permitted to be taken on record subject to payment of Rs.15,000/- as costs. Out of the costs Rs.10,000/- shall be paid to the plaintiff and Rs.5000/- to the District Bar Association, Shimla. The District Bar Association, Shimla shall utilize the costs only for the purpose of purchase of books. Exemplary costs have been awarded in view of the fact that the defendant had employed every dilatory tactic available to him to delay the matter. The costs must be paid/deposited on or before 1st August, 2008. 6 The parties are directed to appear before the Fast Track Court Shimla on 1st August, 2008 on which date the replication shall be filed by the plaintiff. The Fast Track Court shall frame issues on the same date and list the matter for evidence of the plaintiff. After the evidence of the plaintiff is recorded, the defendant shall be granted only two opportunities to lead the evidence. The defendant may take dasti notices for service of the witnesses, if any, to be examined but shall be responsible for the service of the same. In case witnesses are served but not present the Court shall take coercive steps to ensure the presence of the witnesses. The learned Fast Track Court shall make an endeavour to dispose of the suit latest by 31st May, 2009. In case costs are not deposited on or before 1st August, 2008 this petition shall be deemed to have been rejected and the Court shall proceed in the matter as if the defence of the defendant has been struck off. The petition is disposed of in the aforesaid terms. June 20, 2008. ( Deepak Gupta ),J. PV