MS. RAMAN SHARMA  Vs MS. PREM LATA PRABHAKAR & ORS -Judgment by Delhi High Court

$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:30th January, 2024
+ CS(OS) 20/2018, I.A. 884/2018, I.A. 5165/2023, I.A. 14429/2023

MS. RAMAN SHARMA ….. Plaintiff
Through: Mr. Mayank Bhargava, Advocate.

versus

MS. PREM LATA PRABHAKAR & ORS ….. Defendants
Through: Mr. Akshay Kapoor, Advocate along with D2 in person.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 23848/2023 (for recall order dated 16.03.2023)

1. The present application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as �CPC�) has been filed on behalf of the plaintiff, for recall of the Order dated 16.03.2023.
2. It is submitted in the application that vide Order dated 16.03.2023, the delay of 320 days in filing the amended Written Statement by defendant No. 1 &2 condoned and the Written Statement was taken on record, which is not permissible under the Delhi High Court (Original Side) Rules, 2018.
3. This Court, vide Order dated 18.12.2019 had allowed the Application No. I.A. 6073/2018 under Order VI Rule 17 of CPC, 1908 filed by the plaintiff and the amended plaint was taken on record. The defendants were directed to file their Written Statement to the amended plaint within 30 days.
4. The defendants filed their Written Statement, but it contained unapproved and unauthorised modifications in an attempt to hamper the fair trial of the Suit. The plaintiff then filed the Applications I.A. 3187/2020, 3188/2020 and 2232/2021 under Order VI Rule 16 of CPC, 1908 for striking off the unauthorised amendments in the amended Written Statements, filed by the defendants. The said Applications were allowed vide Order dated 13.04.2022 and the amended Written Statements as filed by the defendants were taken off the record with the direction to file fresh amended Written Statements within two weeks from 13.04.2022.
5. Defendant Nos. 1 & 2 filed their amended Written Statements on 01.04.2023 i.e., after 320 days, along with an Application No. I.A. 5130/2023 seeking condonation of delay of 320 days in filing the amended Written Statements. The learned counsel for the plaintiff gave a �No Objection� and the aforesaid Application No. I.A. 5130/2023 was allowed vide Order dated 16.03.2023. Therefore, the delay of 320 days in filing the amended Written Statements was condoned and the Written Statements were taken on record.
6. It is submitted that as per the Chapter VII Rule 4 of Delhi High Court (Original Side) Rules, 2018 the Written Statement has to be filed within a period of 30 days which may be extended by the Court for another 90 days, but not thereafter. Thus, any filing beyond 120 days in a suit, is not condonable.
7. Furthermore, the plaintiff cannot be estopped from raising the ground of limitation as there is no estoppel against law. Thus, even though the plaintiff had given a no objection to the condonation of the belated filing of the Written Statement, but no concession can be made on the law, by the Court.
8. It has been vehemently argued that Order VIII Rule 1 CPC is mandatory and there cannot be any Written Statements taken on record beyond the period of 120 days. For this reliance has been placed on the decisions in Ms. Charu Agrawal vs. Mr. Alok Kalia & Ors. CS(OS) 214/2022 decided by Co-ordinate Bench of this Court on 01.03.2023; Ram Sawrup Lugani vs Nirmal Lugani, 2020 SCC OnLine Del 1353; Union of India vs Popular Construction, (2001) 8 SCC 470.
9. It is has been reiterated that there is no estoppel against law and therefore, the concession given by the plaintiff was inconsequential. For this reliance has been placed on the decisions in State of Rajasthan and Another vs. Surendra Mohnot and ors, (2014) 14 SCC 77 and Khetro Mohan Chatterjee and ors vs. Mohim Chandra Das 1913 SCC OnLine Cal 34.
10. It is further argued that Section 34(3) of the Arbitration and Conciliation Act, 1996 read with Chapter VII Rule 4 of the Delhi High Court (Original Side) Rules, 2018 are akin. Order VIII of CPC, 1908 provides that the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 can be filed within the given time and not thereafter. The phrase and �not thereafter�, in the context of Section 34 of the Arbitration and Conciliation Act, 1996 has been interpreted to mean that under no circumstances can the period be extended beyond the prescribed period.
11. Learned counsel for the plaintiff has further argued that the limitation being a legal issue, it is permitted to be raised even at the stage of Appeal and the Second Appeal, since it goes to the root of the matter and is a requirement of law. For this reliance has been placed on the decisions in State of Gujarat vs. Kothari and Associates (2016) 14 SCC 761, Suryachakra Power Corporation Limited vs. Electricity Department Represented by Its Superintending Engineer, Port Blair and Others (2016) 16 SCC 152, Sheikh Makbul vs. Union of India and Another 1959 SCC OnLine Ori 15 and Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510.
12. Learned counsel has further submitted that it is not a Review or Revision that is sought by the plaintiff, but a recall of the Order dated 16.03.2023 being patently illegal for which the Court can exercise its inherent powers under Section 151 CPC. Moreover, under Section 153 CPC, the Court is empowered to amend any defect or error in any proceedings in the Suit and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or on depending on such proceeding.
13. Learned counsel for the defendants in their Reply to the present application have claimed that the application filed on behalf of the plaintiff is mala fide and in abuse of the process of law since the plaintiff expressly consented to take the Written Statements on record and had even attempted to file its replication to the amended Written Statements. It is only when an objection was taken to the filing of the replication to the amended Written Statements beyond the stipulated period under the Delhi High Court (Original Side) Rules, 2018, that the plaintiff turned around and moved the present application.
14. On merits, all the averments made in the present application are denied. It is explained that on 13.04.2022, the plaintiff had expressed his intention to meet with defendant No. 1 for discussion and based on his submissions, the Court vide Order dated 13.04.2022 directed the matter be referred for mediation to the Delhi High Court Mediation and Conciliation Centre. Multiple dates were fixed for mediation over a period of eight months, but no amicable resolution of disputes, could be arrived. The matter was then listed before this Court on 12.12.2022, on which date, the amended Written Statement was directed to be filed within two weeks along with the application for condonation of delay.
15. The defendants thereafter, filed the amended Written Statements along with the application for condonation of delay on 14.03.2023 and the delay was condoned vide Order dated 16.03.2023.
16. It is submitted that the application is only an afterthought and is without any basis. The reliance has been placed on the decision in Union of India vs. Susaka Pvt. Ltd. & Ors. 2018 (2) SCC 182, wherein it has been observed that if a plea is available whether on facts or law, it has to be raised by the party at the appropriate stage in accordance with law; if not raised and/or given up with consent, it would be precluded from taking such plea on the principle of waiver.
17. Reliance has also been placed on the decision in Bharat Kalra vs. Raj Kishan Chhabra 2022 SCC OnLine SC 613, wherein it was held that delay in filing of the Written Statement could be compensated with costs, but to deny the benefit of filing the Written Statement, is unreasonable. The plaintiff had explicitly given a no objection and the plaintiff is now stopped from objecting to the filing of the amended Written Statement.
18. Reliance has also been placed on the decision in Salem Bar Association vs. Union of India 2005 (6) SCC 344, wherein it was held that the provisions including proviso to Order VIII Rule 1 of CPC, 1908 permit filing the Written Statement accepted expiry of 90 days from initial 30 days the delay beyond 120 days, can be condoned by the Court. It is, therefore, submitted that the present application is liable to be dismissed.
19. Submissions heard.
20. The controversy in the present case is, whether a Written Statement to the amended plaint can be accepted beyond the statutory period of 30 days plus 90 days as contemplated under the Proviso to Order VIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as �CPC�) and read with Delhi High Court (Original Side) Rules, 2018.
Whether a bar stipulated in the law of limitation can be condoned?
21. When the law prescribes a certain thing to be done in a certain way, then it cannot be done in any other way as has been encapsulated in the Latin maxim Expressio unius est exclusion alterius, which literally means the expression of one thing is the exclusion of the other.
22. Albeit, a person may make a statement to the contrary to renounce the benefit of a right introduced in his own favour, the legal principle proffered in quilibet potest renunciare juri prose introducto (anyone can waive a right asserted in his behalf) is essentially restricted to the provisions intended for the benefit of an individual and does not apply to Rules of Law which are based on public policy and general considerations i.e. law of limitation in the present case.
23. In essence, while a person entitled to a certain benefit, may renounce it but the obligations mandated by the law, cannot be given up. Thus, irrespective of whether the parties raise an objection about a right or a claim barred by limitation, the Court is bound to take cognizance of it.
24. Apex Court in the case of France B. Martins vs. Mafalda Maria Teresa Rodrigues (1999) 6 SCC 627 explained that the period of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute i.e.�Limitation Act�is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time, become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal. In Popat and Kotecha Property vs. State Bank of India Staff Association(2005) 7 SCC 510, while referring to the aforesaid judgment, it was held that where a remedy stands barred by time, the same cannot be agitated in the Court of law.
25. Further, the significance of having a timeframe within which the Court may entertain a claim, was discussed in the case of Union of India vs. British India Corporation Ltd, (2003) 9 SCC 505. It was observed by the Supreme Court that the question of limitation is a mandate to the forum and irrespective of the fact of whether it was raised or not, the forum must consider and apply it, if there is no dispute of facts. In view of the aforesaid decision, it was observed in State Of Gujarat vs M/S. Kothari & Associates (supra) that the objection to the limitation is not foreclosed or precluded even at the stage of second appeal, if the bar of limitation is meretricious.
26. More specifically, in the Case of Khetro Mohan Chatterjee vs. Mohim Chandra Das, 1913 SCC Online Cal 34, the Calcutta High Court observed that there can be no waiver of the statutory timeframe provided in the Limitation Act.
27. Likewise, in the Case of Sheikh Makbul vs. Union of India, 1959 SCC Online Orissa 15, the Apex Court observed that objection regarding the limitation cannot be waived and even if it is waived, it can be taken up against the parties waiving them or by the Court themselves. It is open to the parties to raise it at a subsequent stage. Moreover, when such issue cuts at the very root of the litigation and if the court�s attention is drawn to it, it must take cognizance of the same and give its decision thereon.
28. In view of the aforesaid rulings, it is observed that if it is found that the time frames defined for the purpose of limitation are absolute and do not admit to any exception, the Courts are bound to be guided by such timeframe and they cannot be extended no matter how genuine the reasons for delay may be. A party may rightly or wrongly give a concession to the other by waiving off the limitation period, but such litigant cannot be held bound by his statement since the principle of estoppel does not operate against the law.
29. Having concluded that there can be no waiver for an absolute statutory time fame, it has to be determined if the Court holds any discretion to extend the period for filing a Written Statement.

Timeframe for filing a Written Statement in non-commercial suits:
30. In order to curb inordinate delays in litigations, comprehensive amendments were introduced in the Code of Civil Procedure in the year 2002, which became effective w.e.f. 01.07.2002. A bottleneck which was identified was the long period taken for completion of pleadings. To address this malady, Order VIII Rule 1 CPC along with its Proviso, was introduced defining a maximum of 120 days for filing of the written statement.
31. This mandate was further reinforced in the Delhi High Court (Original Side) Rules, 2018. Chapter VII Rule 4 of the Rules, 2018 provides for the extension that can be granted by courts if the Written Statement is not filed within 30 days of being served. The provision reads as under:
�4. Extension of time for filing written statement.�If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days, it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter. For such extension of time, the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid/ deposited. In case the defendant fails to file the affidavit of admission/ denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed to be admitted. In case, no written statement is filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement.�

32. It would be pertinent to note that the Delhi High Court (Original Side) Rules, 2018, were enacted in exercise of the powers under Section 129 CPC which gives the power to make rules �not inconsistent with the Letters Patent to regulate its own procedure in the exercise of its original jurisdiction as it shall think fit�.
33. It was held by the Apex Court in the Case of Iridium India Telecom Limited vs. Motorola Inc., (2005) 2 SCC 145 and after exhaustive consideration of the Charter establishing High Courts and the scope of the non-obstante clause in Section 129 that the historical development of the law suggests that the non obstante clause in Section 129 is intended to bypass the entire body of the Code so far as the rules made by the Chartered High Court for regulating the procedure on its Original Side, are concerned.
34. It was inter alia held that the Rules framed by High Courts would prevail over the provisions of Code of Civil Procedure, even if the said Rules are inconsistent with the Code, by observing as under:
�39. Taking into account the extrinsic evidence, i.e. the historical circumstances in which the precursor of Section 129 was introduced into the 1882 Code by a specific amendment made in 1895, we are of the view that the non obstante clause used in Section 129 is not merely declaratory, but indicative of Parliament’s intention to prevent the application of the CPC in respect of civil proceedings on the Original Side of the High Courts.�

35. Similarly, in Print Pak Machinery Ltd. vs. Jay Kay Papers Congeners, AIR 1979 Delhi 271, it was held that the non-obstante clause in Section 129 of the Code left untouched the Original Side Rules of High Court whenever framed and the said Rules shall prevail over the Code.
36. Now coming to the the words �but not thereafter�, it has been interpreted in a plethora of judgements. In the case of Gautam Gambhir v. Jai Ambay Traders, 2020 SCC OnLine Del 2621 this Court emphasized on the words �but not thereafter� mentioned in the Rule 4, of Chapter VII of the Delhi High Court Rules, 2018, to observe that these words clearly indicate that a total of 120 days granted for filing of Written Statement cannot be extended and if the same is not complied with, then the Registrar may pass orders closing the right to file the same.
37. In the case of�Ram Sarup Lugani�(supra), the Division Bench of this Court upheld the Delhi High Court (Original) Rules, 2018 to hold that the said Rules shall prevail over the Code of Civil Procedure. The inherent powers contemplated in Chapter I Rule 16 of the said Rules are not to be exercised over to overcome or circumvent the limitation expressly provided under Chapter VII of the Rules. The phrase �but not thereafter�, though in the context of filing of a Replication, was interpreted and it was observed that the words�not thereafter�must clearly be accorded due weight and the timeline provided could not be extended by the Courts or take the replication on record after the time has been exhausted by the party.
38. This aspect was comprehensively considered by the Coordinate Bench of this Court in the case of Ms Charu Agrawal (supra) by considering the entire compendium of the judgments as referred above, to reiterate that neither Order VIII CPC nor any other provisions in the Code employ the phrase �but not thereafter�. This expression stands enshrined in both Rules 4 and 5 of the Delhi High Court (Original Side) Rules, 2018. It was further held that the usage of this expression was indicative of a terminal point beyond which it was impermissible to accept the Written Statement. The inherent powers of the Court cannot be invoked to condone any delay beyond 120 days, in light of the emphatic language of the provision itself.
39. The Co-ordinate Bench Col Ashish Khanna SM Retd vs. Delhi Gymkhana Club & Ors., in CS(OS) 171/22, decided on 21.08.2023, while considering the similar controversy, relied upon the case of Ms.Charu Agrawal (Supra) and Ram Sarup Lugani (Supra) and Harjyoti Singh vs. Manpreet Kaur, 2021 SCC OnLine Del 2629, to conclude the inviolability of the hard stop period of 120 days prescribed in Chapter VII, Rule 4 of the Delhi High Court Rules, 2018, for filing of Written Statement and concluded that the debate of the power of the Court to condone the delay in filing the Written Statement beyond 120 days in a non- commercial suit, has been settled and the Courts have no power to condone this delay beyond 120 days.
40. Thus, the words “and not thereafter” is a mandatory desideratum and the defendant shall forfeit the right to file the Written Statement beyond 120 days from the date of service of summons and the Court shall not allow the written statement to be taken on record as held in SCG Contracts (India) (P) Ltd. vs K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210.
41. Now having discussed in extenso that Order VIII Rule 1 read with Chapter VII Rule 4 of the Delhi High Court (Original Side) Rules, 2018, this Court finds it pertinent to address if an Order condoning the delay in filing the Written Statement can be rectified under Section 151 CPC.

Scope of correction/rectification under Section 151 CPC:
42. A question was put to the counsel for the plaintiff, as to why an application under Section 151 CPC instead of review under Order XLVII CPC has been filed, considering that there is an error apparent on the face of the Order. In response to the same, it was contended that there was an error in law to which the Review provision was not applicable and there was nothing which prevents the Court from correcting its own errors under Section 151 CPC.
43. The record reflects and is also pointed out on behalf of the defendants, that after the impugned Order dated 16.03.2023, a date was taken by the plaintiff for filing the Replication which was then filed on 27.07.2023. An objection was taken by the defendant, to the filing of the Replication being beyond 45 days, as prescribed under Delhi High Court Rules, 2018 which prompted then plaintiff to question the Order dated 16.03.2023 vide which the Written Statement of defendant Nos. 1 & 2 were on record.
44. It is, therefore, evident that the plaintiff was not aggrieved initially by the impugned Order and thus did not file the Review, which was required to be filed within 30 days of the impugned order.
45. Wisdom having dawned on him only when his Replication was faced with resistance, the present application has been filed under Section 151 CPC. The argument that the error in law has been made by this Court and it is required to be rectified by the Court itself in exercise of its inherent powers under Section 151 CPC, may not be palpable especially when there was a remedy of Review available to the plaintiff.
46. In the case of Padam Sen vs. State of U.P., AIR 1961 SC 218, the Supreme Court observed that the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, the Court may exercise it for the purposes of meeting the interests of justice as mentioned in Section 151 of CPC, 1908 when such exercise of discretion is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature.
47. In the case of Commissioner of Central Excise, Belapur, Mumbai vs. RDC Concrete (India) Prviate Limited (2011) 12 SCC 166, the Supreme Court in the context of Section 35-C(2) of the Central Excise Act, 1944 which deals with rectification of Orders (similar to the provision under Section 151 read with Section 152 of CPC, 1908) had observed that what can be rectified is the mistake apparent on the face of the record. It cannot be something which can be established by a long drawn-process of reasoning on points on which there may conceivably be two opinions.
48. In T.S. Balaram vs. Volkart Bros., (1971) 2 SCC 526, the Apex Court had observed that a decision on debatable point of law cannot be a mistake apparent from the record. If the re-appreciation of evidence is required, it is not an error apparent which may be rectified in exercise of its powers under Section 35-C(2) of the Central Excise Act, 1944.
49. In the case of ITO vs. Ashok Textiles Ltd. AIR 1961 SC 699, it was observed by the Apex Court that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law, can also not be corrected.
50. In Ram Prakash Agarwal vs. Gopi Krishan (2013) 11 SCC 296, it was clarified that the power under Section 151 of CPC, 1908 is not a substantive provision that confers a right to get any relief of any kind. It is a mere procedural provision which enables a party to have the proceeding of a pending suit conducted in a manner that is consistent with justice and equity.
51. In the case of My Palace Mutually Aided Cooperative Society vs. B. Mahesh & Ors. Civil Appeal No. 5784/2022 decided on 23.08.2022 by the Apex Court, wherein it was observed that the Court having jurisdiction over the relevant subject matter has the power to decide a case wherein it may either come to a right or a wrong conclusion. Even if a wrong conclusion is arrived at or an incorrect decree is passed by the jurisdictional court, the same is binding on the parties until it is set aside by an appellate court or through other remedies provided in law.
52. It is, therefore, evident that only such errors for which there exists no other provision to rectify, the inherent powers under Section 151 of CPC, 1908 can be invoked for furtherance of the cause of justice. Section 151 CPC, essentially to prevent the abuse of process, cannot be invoked to correct an error in an Order made under a specific provision of the Code of Civil Procedure. When there exists a specific mechanism to challenge the erroneous Order, the same must be followed or else it would lead to an anomalous situation where the entire Code instead of containing such detailed procedures, could be limited to one Section 151 CPC by treating it as a general panacea to redress all errors. This was clearly not the intent nor can such interpretation be given to exercise of the inherent powers which is limited to the situations for which there exists no provision in the Code.
53. No doubt there is nothing in law which prevents the Court from exercising its inherent jurisdiction to correct any error in law once it is pointed out; however, that comes within the scope of review and the plaintiff should have filed the application under the correct Section, rather than trying to lay the blame where it does not lie.

Scope of correction/rectification under Section 153 CPC:
54. The learned counsel on behalf of the plaintiff had further argued that this Court can correct the errors not only under Section 151 CPC but also Section 153 CPC which provides for general power to amend any defect or error in any proceedings in a suit at any stage, which may be necessary for the purpose of determining the real question or issue raised by or depending upon such proceedings.
55. Section 153 of CPC provides for �General Power to Amend�. It states that the Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
56. Akin to Section 151 CPC, Section 153 CPC confers general power to amend any defect or error in the proceedings in the suit; however, it in no manner, supplants and surpasses the process of challenging an error in an Order.
57. The first aspect which needs to be understood under Section 153 of CPC is that it is part of the procedural law.
58. In Hansabai Shripati Bhosale vs. Parubai Gopal Bhosale Since Deceased Through Her Legal Heirs Tanaji Gopal Bhosale and Others 2009 SCC OnLine 1179, the Bombay High Court observed that Section 153 employs the phraseology �any proceeding in a suit�. The construction of the said phrase can be given a narrow or wide import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language in which it appears. The word �proceeding� is defined in Oxford Dictionary as �doing a legal action or process, any act done by authority of a Court of law� or �steps taken in legal action�.
59. It was further observed that, the term �proceeding� is a very comprehensive term; generally speaking it means a prescribed course of action for enforcing a legal sight and hence, it necessarily embraces the requisite steps involved in a judicial action. It means any application to a Court of justice made for aid in the enforcement of rights, for reliefs, for redress of injuries, for damages, or any remedial objection.
60. In the case of Ramchandra Aggarwal and Anr vs. State of Uttar Pradesh and Anr., AIR 1966 SC 1888, the Supreme Court gave expression �proceeding� a comprehensive meaning so as to include within it all matters coming for judicial adjudication and not to confine it to a civil proceedings alone. Similar observations were made by the Apex Court in Babu Lal vs. M/s. Hazari Lal Kishori Lal and Ors., AIR 1982 SC 818.
61. In Hansabai Shripati Bhosale (supra), it was observed that one has to give wide meaning to the phrase �in any proceeding� so as to advance the cause of justice. All proceedings in the Court of Civil jurisdiction would fall within the scope of this phrase so as to lean in favour of Court having power under Sections 151, 152 and 153 to correct errors in the proceeding so as to amend judgment and Decree in order to do justice between the parties. Moreover, the correction of the error or mistake in the proceedings, depends on the nature of the mistake or error as per the facts of each case. Ex facie the application made under Section 153 is to facilitate ex-defito-justitia i.e., to meet real and substantial justice. Therefore, the corrections may be made in the identity of suit property in a decree. If such corrections under such amendment are not allowed under Section 153 of CPC, 1908, then the plaintiff will be without remedy though he has right over the suit property. It will be against the principles of ubi jus ibi remedium.
62. From a comprehensive analysis of the aforesaid judgements, it is clear that Section 153 CPC only pertains to amending any defect or error in any proceeding in a suit. Any proceeding in a suit has been succinctly restricted to filings made by a party to the suit in pleadings, applications etc. Thus, it amounts to steps taken by the parties in legal action.
63. In a way, Section 153 CPC, though wider in nature, may seem akin to the powers granted under Order VI Rule 17 CPC which allows the amendment of pleadings on an application by parties to a suit, but has a subtle distinction in being limited to correction in proceedings and not to correct substantive errors in Pleadings and Orders for which there exist detailed procedures.
64. In Gurdial Singh and Others vs. Raj Kumar Aneja and Others (2002) 2 SCC 445, the Apex Court explained that the distinction between an Order under Order VI Rule 17 and Section 153 of CPC, 1908. It was observed that Order VI Rule 17 of CPC, 1908 confers discretionary jurisdiction on the Court exercisable at any stage of the proceeding to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power of amendment under Order VI Rule 17 of CPC, 1908 is, therefore, specific to amendment of the pleadings i.e., Plaint, Written Statement and Replication which is filed by the parties. On the other hand, Section 153 of CPC, 1908 entitles general powers to amend which can be used by the Court may at any time, and on such terms as it may think fit, to amend any defect or error in any proceeding in a suit.
65. This Court in its Full Bench decision in Kedar Nath & Ors. vs. Ram Prakash & Ors. 1999 (48) DRJ (FB), observed that the general powers of amendment under Section 153 of CPC, 1908 must yield to the specific rule i.e., Order VI Rule 17 of CPC, 1908 when it relates to amendment of pleadings. Order VI Rule 17 of CPC, 1908 should be invoked where amendment of pleadings is sought. Further, Section 153 of CPC, 1908 speaks of the power of the Court to make amendment suo moto and can, therefore, be applied at best only to verbal slips or defects. A pleading can be amended under Order VI Rule 17 of CPC, 1908 only during the pendency of the proceedings. Even after judgment, Section 153 of CPC, 1908 can be invoked for correcting errors in the proceedings in the suit other than the pleadings i.e., a memorandum of appeal etc.
66. Therefore, the plaintiff cannot resort to Section 153 of CPC, 1908 for correction or recall of and order or judgement. The plaintiff in the present case, seeks a recall of Order dated 16.03.2023 vide which the Written Statement has been permitted to be taken on record after the Application I.A. 5130/2023 seeking condonation of delay of 320 days in filing the amended Written Statements has been condoned. This is a substantive Order not amenable to correction under Section 153 CPC.

Whether the timeframe under Order VIII CPC and Delhi High Court (Original Side) Rules, 2018 would apply to the Amended Written Statement filed in the present case?
67. In the present case, the facts involved are different as it is not a case of filing the Written Statement in the first instance. The Suit was filed on 12.01.2018 to which the Written Statements were filed by defendant Nos. 1 & 2 filed on 07.03.2018. The Plaintiff sought amendment of the plaint which was allowed vide Order dated 18.12.2019 and the amended plaint was taken on record. The defendants were directed to file their amended Written Statement to the amended Plaint within 30 days.
68. Though, the defendant Nos. 1 and 2 filed their Written Statement to the amended Plaint within a period of 30 days on 17.01.2020, it was found to contain unauthorized pleas which were beyond the amendments made in the Plaint. Therefore, amended Written Statement was directed to be taken off the record vide Order dated 13.04.2022 and the defendants were directed to file their Written Statement within 2 weeks.
69. In the meanwhile, the parties resorted to mediation which did not fructify and vide Order 12.12.2022, the defendants were directed to file their Written Statements within two weeks.
70. Thereafter, the defendant Nos. 1 & 2 filed their Written Statement on 14.03.2023 after a total delay of 320 days which has been condoned vide Order dated 16.03.2023 and the Written Statement to amended Plaint has been taken on record.
71. The pertinent question which now remains to be answered is whether the stringent timeframes as prescribed under Order VIII Rule 1 of CPC, 1908 for filing of the Written Statement within 30 days of service which may be extended to 120 days on showing sufficient cause, is also applicable to the amended pleadings.
72. The Scheme of Code of Civil Procedure, in regard to the amendments of the pleadings, as encapsulated in Order VI of the Code of Civil Procedure. Order VI Rule 17 CPC, provides that the pleadings (which includes the plaint and the written statement) may be amended at any stage, if considered just and necessary for determining the real question in controversy between the parties. However, this provision is circumscribed by twin conditions in the Proviso which are: that the amendment shall not be allowed after the trial has commenced; and unless the Court comes to the conclusion that such matter could not have been raised before the commencement of trial, despite due diligence.
73. The scope of filing an amended Written Statement to an amendment allowed in a plaint had been explained by the Full Bench of this Court in the case of Kedar Nath & Ors. (supra) as under: –
�22. To sum up, we are of the opinion that:

(i) merely because an amendment has been allowed in the plaint, the defendant does not get a right and certainly not an unbridled right to file a new written statement;

(ii) any additional pleading cannot be at variance or inconsistent with the original pleading;

(iii) a pleading inconsistent with or in departure from an original pleading can be allowed only by way of amendment subject to the leave being granted by the Court under Order 6 Rule 17 CPC.

(iv) Order 6 rule 17 CPC applies to amendment in the plaint and the Written Statement-both. It applies to amendment sought for by one party and also to consequential amendments in the pleadings sought for by the opposite party. Any amendment – whether original or consequential, shall be only by the leave of the Court.

23. The Court has jurisdiction to regulate the right of the opposite party to amend his pleadings or file a new or additional pleading. The following principles and procedural steps deducible from English and Indian practice should regulate the procedure:-
(i) Once a plaint has been amended consequent upon leave having been allowed by the Court, the defendant may also ask for leave to amend the written statement by way of consequential amendment. Ordinarily this should be the practice to be followed by the Courts permitting amendment in the pleadings.

(ii) It is only in exceptional case and not by way of rule that the Court may exercise its discretion requiring or granting the leave to file an additional pleading consequential upon an amendment having been allowed to the opposite party.

(iii) An amendment having been allowed, if the amendment be minor, negligible or clerical merely such amendment may be incorporated in the original pleading by using red ink and certified by the Court Master or the Judge after being initialled and dated by the party making the same. If the amendment be substantial in character then an amended pleading should be filed setting out all the contents of the original pleading, therefrom scoring out by drawing a single line across such portions as have been deleted under the order of the Court by using red ink pen and setting out portions allowed to be added by the Court by using red ink, or highlighting the same in red or yellow.�

74. In Gurdial Singh (supra), it has been further explained that when an application under Order VI Rule 17 of CPC is allowed, such amendments are known as consequential amendments.
75. The phrase �consequential amendment� finds mention in the decision of the Apex Court in Bikram Singh & Ors. vs. Ram Baboo & Ors. AIR 1981 SC 2036. This expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment, the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.
76. In the present case, this is exactly what had happened; the amendments were allowed to the Plaint, but in response thereto, instead of responding to the consequential amendments, the defendants took independent pleas in their amended Written Statement. Consequentially, the Written Statement filed to the amended Plaint was directed to be taken off the record vide Order dated 13.04.2022. Thereafter, the Written Statement was again sought to be filed and the same was filed after a delay of 320 days on 14.03.2023 which has been condoned vide Order dated 16.03.2023 and the Written Statement to amended Plaint has been taken on record.
77. Here, in such cases, the timeframes as provided under Order VIII Rule 1 of CPC, 1908 would not be applicable to the Written Statement filed by defendant Nos. 1 & 2 as �consequential amendments� to an amended Plaint do not fall within the scope and purview of Order VIII Rule 1 CPC. Order VI Rule 18 of CPC, 1908 becomes applicable for determining the time frame for such amended pleadings. The provision reads as under: –
�Order VI �� Pleadings Generally
��.
Rule 18: Failure to amend after order.�
If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.�

78. It provides that the amended pleading shall not be filed beyond 14 days as the case may be, unless time is extended by the Court. Therefore, it becomes the discretion of the Court to extend the time for amendment of pleadings under Order VI Rule 18 CPC.
79. The logic for this is not difficult to comprehend. Either party can seek permission to amend the Plaint or the Written Statement which is already on record and has been filed within the given timeframe. The amendments are allowed to be made at any stage before the trial but can also be considered at a later stage if they could not have been made earlier despite exercise of due diligence. Since the pleading can be amended at any stage, the time frame of 120 days as prescribed for the filing of original Written Statement becomes inapplicable to consequential amendments made to the Written Statement. This is more so as the defence of the defendant is already on record and it is only to the amendments allowed to the plaint that an additional response is required.

Conclusion:
80. Therefore, it may be concluded that firstly, the jurisdiction of the Court under Sections 151 & 153 of CPC, 1908 cannot be invoked when there exists a specific remedy to challenge an Order which is found to be erroneous in fact or law
81. Secondly, there is no timeframe provided for filing of the pleadings which are consequent to an amendment, and the Court may grant the time as it may deem fit in terms of Order VI Rule 18 of CPC, 1908. Even otherwise, the amended Written Statement to the amended Plaint was filed within time but was taken of the record as it contained averments beyond the allowed amendments of the plaint.
82. Based on the foregoing discussion, the present application filed under Section 151 CPC on behalf of the plaintiff, seeking recall of Order dated 16.03.2023, is not tenable under law or on merits and is hereby dismissed.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 30, 3024
RS

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