1 ( 2025:HHC:20443 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO(OS) No.4 of 2025 Decided on: 24.06.2025 Shahnaz Begum ...Appellant-Defendant Versus Dharam Pal ...Respondent/plaintiff Coram Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Ranjan Sharma, Judge Whether approved for reporting?1 For the appellant : Mr. Ajay Sipahiya and Mr. Tarun Mehta, Advocates. For the respondent : Mr. Janesh Gupta, Advocate. G.S. Sandhawalia, Chief Justice (Oral) The present appeal is directed against the order dated 13.11.2024 passed by the learned Single Judge dismissing OMP No.395 of 2023 in Civil Suit No.58 of 2022 filed for recalling/modifying the order dated 19.10.2022 as well as order dated 19.7.2023, whereby the right of the present appellant-defendant to file written statement was closed. 2. Learned Single Judge came to the conclusion that despite repeated opportunities, defendant had failed 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 ( 2025:HHC:20443 to file written statement and on 15.6.2022, four weeks’ time was granted to file written statement, which was not filed. Last opportunity of further four weeks for the same purpose was granted on 19.10.2022 ignoring the fact that no such application for extension of time had been filed. Thereafter, right to file written statement was closed on 19.7.2023. 3. Fact that application bearing OMP No.783 of 2022 filed under Order 7 Rule 11 CPC by the appellant was withdrawn on 19.7.2023 though liberty was granted to file a fresh one was noticed. It was also noticed that thereafter, another application being OMP No.396 of 2023 under Order 7 Rule 11, CPC had been filed but no specific prayer had been made at the behest of the defendant that written statement shall be filed after disposal of the application. 4. Reliance placed upon the judgment of the Apex Court by the appellant in R.K. Roja Vs U.S. Rayudu & another (2016) 14 SCC 275 was distinguished. Reliance has also been placed upon the judgment of the Apex Court in SCG Contracts (India) Private Limited Vs K.S. Chamankar Infrastructure Private Limited & ors. 3 ( 2025:HHC:20443 (2019) 12 SCC 210 that proceedings under Order 7 Rule 11 CPC to file written statement cannot be made as a ruse for retrieving the lost opportunity to file written statement and the fact that the said case pertains to commercial dispute. It has been argued by the counsel for the appellant while placing reliance upon Des Raj Vs Balkrishan (D) through proposed LR Ms Rohini, (2020) 2 SCC 708 that written statement was ordered to be taken on record, subject to payment of costs of Rs.25,000/- by a Three Judge Bench of the Apex Court. 5. Learned Single Judge has also relied upon the procedure under Order 8 Rule 1, CPC and law laid down by the Apex Court to come to the conclusion that despite repeated opportunities if parties seeking such condonation of delay failed to file pleadings in such circumstances, discretion was not liable to be exercised. 6. Counsel for the respondent has submitted that second application, i.e., OMP No.396 of 2023 filed under Order VII Rule 11, CPC was dismissed on 1.4.2024 and the same order was upheld in appeal, i.e., FAO(OS) No.5 of 2024 by a co-ordinate Bench. He thus submitted that whatever arguments had been raised in the application 4 ( 2025:HHC:20443 under Order 7 Rule 11, CPC cannot be pleaded in the written statement. 7. We are of the considered opinion that the matter already stands settled by the Co-ordinate Bench in Kushal Jethi Vs Ravinder Parihar & ors. 2020 SCC Online HP 3631, wherein while examining Rules 2 and 3 of Chapter 6 of Himachal Pradesh High Court (Original Side) Rules. The Co-ordinate Bench had come to the conclusion that procedure prescribed as such are for the purpose of being hand-maids of justice and under Rule 4 by payment of costs as such the defendant can be allowed opportunities to file the written statement which is apparently to meet the ends of justice. 8. We have followed the said view in LPA No.494 of 2024 titled as Montreaux Resorts Pvt. Ltd Vs. Tulsi Dass decided on 23.5.2025, whereby opposition was similarly made that reply had not been filed within the given time as per Rules 2 and 3. Therefore, right to file written statement without filing an appropriate application could not be given and we thus upheld the order passed by the learned Single Judge which had imposed costs of Rs.5000/- to be deposited in Himachal Pradesh Advocates’ 5 ( 2025:HHC:20443 Welfare Fund in order to entitle the defendant as such to defend the suit keeping in mind the fact that the plaintiff cannot be given a walkover as such regarding the dispute in question which was also regarding specific performance of an agreement to sell. It is also the case herein. Relevant para of the judgment in Montreaux Resorts Pvt. Ltd supra reads as under:- “10. In Khushal Jethi’s case supra, the learned Single Judge of this Court, vide order dated 03.09.2020, 9 while relying upon Rules 3 and 4 had repelled the arguments of the plaintiff to object to filing of the written statement and held that the last opportunity be given to file written statement within three weeks and also written statement already on record was permitted to be taken on the record while disposing of the application that the written statement not be taken on record. The matter had further been taken in appeal before the Division Bench in Khushal Jethi’s case which has already been referred by the learned Single Judge and it has been held that procedural law is not to be a tyrant but a servant and an aid to justice and meant to facilitate the cause of justice and not to cover or obstruct and not to shut the door of justice to the parties at the threshold. 11. Once Rule 4 as such provides for payment of cost and the defendant can be allowed to defend on payment of cost to the plaintiff in such case it was in the discretion of the learned Single Judge as such to have allowed the application which has been rightly 10 done, keeping in view the fact that it was not filed within the time prescribed at the first instance which was four weeks, given by the Court and thereafter on 15.06.2023 at the second instance by the Additional Registrar (J). The provisions of Rule 4 are thus apparently to meet the ends of justice, in view of the settled principle of law that the Rules and procedure are meant to meet the ends of justice and not to obstruct the same.” 9. It is to be noticed in the present case that apparently after the last opportunity was granted on 6 ( 2025:HHC:20443 19.10.2022 by the learned Single Judge, an application under Order 7 Rule 11, CPC came to be filed on 03.11.2022 registered as OMP No.783 of 2022. Apparently the defendant as such had a right to press for the said application and in case the same was to be allowed, the necessity to file written statement would have not been applicable. He, however chose to withdraw the same and learned Single Judge allowed him to do so on 19.7.2023 vide impugned order with liberty to file afresh apart from giving various reliefs of alteration/vacation/modification on motion but also cut out the right to file written statement while making interim order absolute passed in the stay application dated 25.5.2022. 10. In such circumstances the right of the plaintiff was duly protected regarding the interim injunction which prayed that the defendant be restrained from selling, transferring, alienating, encumbering, creating third party interest over the suit property. It is not in dispute that thereafter another application being OMP No.396 of 2023 under Order 7 Rule 11, CPC was filed and the written statement was also placed on record which was filed on 9.8.2022. The said application was dismissed on 1.4.2024 7 ( 2025:HHC:20443 and in such circumstances, appellant as such filed the applications for recalling of the earlier orders dated 19.10.2022 and 19.7.2023 which led to the passing of the impugned order. In such circumstances, once the defendant as such was agitating for his right for rejection of plaint under Order 7 Rule 11, CPC, we are of the considered view that it would have been in the ends of justice if costs had been imposed to dehors the rights as such of the plaintiff on account of delay as occurred in filing of the written statement since appearance had been put in 15th June 2022. 11. In such circumstances, we are of the considered view that costs of Rs.25,000/- are liable to be imposed to be paid to the plaintiff. 12 Accordingly, we allow the appeal and set aside the order passed by the learned Single Judge and written statement is ordered to be taken on record, subject to payment of costs of Rs.25,000/- within a period of four weeks, keeping in mind the principle that the Rules of procedure are hand-maids of justice and serious civil consequences would be entailed if the right to file written statement is not given. 8 ( 2025:HHC:20443 13 Reliance on SCG Contracts (supra) as such would not help the plaintiff/respondent since in the present case application under Order 7 Rule 11 CPC had been filed just after the first order passed on 19.10.2022 when last opportunity had been granted and, therefore, the defendant had a right which could be kept open to pursue the application and are further being substantiated by the order dated 19.7.2023 when right was given to file second application also. 14 The appeal is accordingly allowed as indicated above. Pending miscellaneous application(s), if any, shall also stand disposed of. (G.S. Sandhawalia) Chief Justice June 24, 2025 (Ranjan Sharma) (mamta) Judge