PRADEEP KUMAR AGGARWAL vs SHRI PRAVEEN AGGARWAL & OTHERS

2024-02-28 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on:15th February, 2024
Pronounced on:28th February, 2024

+ CS (OS) 255/2017 & I.A. 10302/2018
PRADEEP KUMAR AGGARWAL ….. Plaintiff
Through: Mr. Pankaj Gupta, Advocate along with plaintiff.
versus
SHRI PRAVEEN AGGARWAL & OTHERS ….. Defendants
Through: Mr. Gaurav Gupta, Mr. Nikhil Kohli, Ms. Saumya Tiwari and Ms. Shrishti Jeswani, Advocates for D5.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 7134/2023 (under Section 151 read with Section 5 of the Limitation Act filed by the plaintiff for condonation of delay in filing the Chamber Appeal)

1. An application has been filed on behalf of defendant No.5 seeking condonation of delay of 752 days in filing the Chamber Appeal O.A.39/2023 against the Orders dated 18.03.2021 and 09.05.2022.
2. For the reasons stated in the application, the delay of 752 days in filing the Chamber Appeal is condoned.
3. The application is allowed and is disposed of accordingly.
O.A. 39/2023 (under Rule 5 Chapter 2 of the Delhi High Court (Original Side) Rule 2018 read with Section 151 CPC against the Order dated 18.03.2021 and 09.05.2022)

4. A Chamber Appeal has been filed under Rule 5 Chapter 2 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC, 1908) against the Orders dated 18.03.2021 and 09.05.2022 passed by the learned Joint Registrar closing the right of defendant No.5/Smt. Usha Bansal to file the Written Statement to the Amended plaint and proceeding ex-parte against defendant No.5, respectively.
5. The defendant No.5 has submitted that she had engaged the counsel to represent her in the present proceedings but he did not appear or file the Written Statement as was assured by him, which eventually led to the closure of the right of defendant No.5 to file the Written Statement on 18.03.2021.
6. The learned previous counsel did not apprise defendant No.5 about the status of the case. When she did not hear from him for a fairly long time, she telephonically enquired from the counsel in the last week of August, 2002 and then was informed about the fate of the case. She then engaged the new counsel who obtained the copies of the Order Sheets and has moved the present application. It is submitted that non-appearance of defendant No.5 on 09.05.2022 was for the reasons stated above and that the ex-parte Order may be set aside.
7. It is further submitted that the period of 120 days under Order VIII Rule 1, CPC is directory and not mandatory in nature in non-commercial suits. Reliance has been placed on the case of Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344; Desh Raj v. Balkishan, (2020) 2 SCC 708; Raj Process Equipments and Systems Pvt. Ltd.and Ors. v. Honest Derivatives Pvt. Ltd. Civil Appeal No. 8089 of 200 decided on 3.11.2022 by the Supreme Court; Bharat Kalra v. Raj Kishan Chabra, 2022 SCC OnLine SC 613; Fredric Gill v. John Masih Gil, 2023 SCC OnLine Del 2605.
8. It is also contended that the Courts should not be pedantic in their approach while condoning the delay. Reference has been made to the case of Ajay Dabra v. Pyare Ram & Ors. 2023 SCC OnLine SC 92; Land Acquisition, Anantnag and Another v. Mst. Katiji and Others (1987) 2 SCC 107 and Esha Bhattacharjee v. Raghunathpur Nafar Academy (2013) 12 SCC 649.
9. It is further submitted that a litigant must not be made to suffer for the fault of his counsel. The learned Counsel for the defendant No.5 has placed reliance on the case of Deptt. of Horticulture v. Raghu Raj (2008) 13 SCC 395; Rafiq v. Munshilal (1981) 2 SCC 788 and Lakhi Narayan Sonowal v. State of Assam (2016) 14 SCC 514 to support his argument.
10. The Chamber Appeal is vehemently opposed by the plaintiff who in its Written Synopsis, has asserted that as per Delhi High Court (Original Side) Rules, 2018, the defendant is not permitted to file its Written Statement beyond a period of 120 days from the date of service of Summons of the Suit. Reliance has been placed on the case of Ram Sarup Lugani v. Nirmal Lugani 276 (2021) DLT 681(DB); Gautam Gambhir v. M/s. Jai Ambe Traders and Ors. 273(2020) DLT 49 and Ms Charu Agrawal v. Mr Alok Kalia & Ors. Neutral Citation No. 2023/DHC/001454.
11. It is submitted that the conduct of the defendant No.5 is highly callous and negligent and thus, no indulgence can be given to her as observed in the case of Ishwar Dayal Kansal v. Nirmal Nayyar 2014 SCC OnLine Del 4404; Ishwar Dayal Kansal v. Nirmal Nayyar RFA (OS) 7/ 2015 decided on 09.04.2015 by the Delhi High Court; titled Ishwar Dayal Kansal v. Nirmal Nayyar in SLP(C)….CC No. 3042/2016 decided on 23.02.2016 by the Supreme Court; Order dated 10.08.2016 passed in Review Petition (C) No. 3022/2016 arising out of SLP(C)….CC No. 3042/2016 titled Ishwar Dayal Kansal v. Nirmal Nayyar.
12. It is further submitted that the OA is barred by limitation and that the prescribed limitation of preferring the Appeal is 15 days. The delay of 752 days is not justified and the blame cannot be assigned to the lawyer for the same. Reliance is placed on the case of Gobind Prashad Jagdish Prashad v. Hari Shankar 57 (2001) DRJ 575; Naimat Kaur Anand Vs. Decon Company 51 (1999) DRJ 428; National Small Industries Corpn. Ltd. Vs. Thermosetting Industrial Products 2001(2) AD(Delhi) 857; New Bank Of India Vs. Marvels (India) 93 (2001) DLT 558 and Livewell Aviation Services Pvt. Ltd. Through Its Director, New Delhi Vs. Rajesh Chawla 2021 LAWPACK (Del) 84484.
13. It is asserted that the present appeal is liable to be dismissed.
14. Submissions heard.
Order dated 09.05.2022 proceeding ex-parte against defendant No.5:
15. At the outset, an objection has been taken on behalf of the plaintiff that the Chamber Appeal does not lie against the Order dated 09.05.2022 vide which the defendant No.5 has been proceeded ex-parte; instead an application under Order IX Rule 7 CPC should have been filed. Without getting into the technicalities of Chamber Appeal not being maintainable against an ex-parte order, the challenge to the Order of 09.05.2022 is taken to be an application under Order IX Rule 7 CPC.
16. For the reasons stated in the application, the Order dated 09.05.2022 vide which the defendant was proceeded ex parte, is hereby set aside.
Challenge to the Order dated 18.03.2021 closing the right to file Written Statement to the Amended Plaint:
17. The substantive Order which is under challenge by way of this O.A., is the Order dated 18.03.2021 vide which the right of defendant No.5 to file the Written Statement had been closed.
18. A perusal of the record shows that originally the plaint was filed against defendant No.1 and 2. An application under Order I Rule 10 CPC dated 30.07.2018 was filed in which the defendant No.5 (who was proposed to be impleaded as a Defendant), was served on 06.12.2018. The application under Order I Rule 10 CPC was allowed vide Order dated 17.07.2019 and defendant No.5 was impleaded.
19. Learned counsel on behalf of defendant No.5 sought time for filing the Written Statement on 05.09.2019 and again on 29.11.2019 on which date last opportunity was given for filing of the Written Statement. Again, on 27.02.2020 defendant No.5 was given the liberty to move an application for condonation of delay and file the Written Statement. Thereafter, none appeared on the behalf of defendant No.5 on the subsequent dates i.e. 04.09.2020, 26.11.2020 and the right to file the Written Statement was closed on 18.03.2021.
20. The moot issue which arises for determination is whether in a regular Civil Suit, the timeline of 120 days as prescribed under Order VIII Rule 1 of CPC, 1908 read with Chapter VII Rule 4 of the Delhi High Court (Original Side) Rules, 2018 can be extended beyond the said timeline; particularly when the defendant No.5 was impleaded as a party on 17.07.2019.
21. Order VIII Rule 1 of CPC provides that the defendant shall file its Written Statement within 30 days from the date of service of summons upon him which may be extended by 90 days for sufficient reasons; i.e. defendant may be given a maximum of 120 days for filing the Written Statement.
22. Likewise, Chapter VII Rule 4 of the Delhi High Court (Original Side) 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.”

23. The above provision also provides that a total period of 120 days and not thereafter, can be granted for filing a Written Statement. The entire gravamen rests on the interpretation of the words but not thereafter which finds a conspicuous place of mention in Chapter VII Rule 4 of the Delhi High Court (Original Side) Rules, 2018.
24. In the case of Gautam Gambir (Supra), 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.
25. 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.
26. The Co-ordinate Bench of this Court in the case of Ms. Charu Agrawal (Supra) considered the entire compendium of the judgments on this aspect comprehensively considered and it was observed 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. It was reiterated that there cannot be an extension of period of 120 days for the filing of the written statement.
27. The Co-ordinate Bench in Col Ashish Khanna SM Retd vs. Delhi Gymkhana Club & Ors. CS(OS) 171/22, decided on 21.08.2023, while considering the similar controversy relied upon the case of Ms.Charu Agrawal (Supra); Ram Sarup Lugani (Supra) and Harjyoti Singh vs. Manpreet Kaur, 2021 SCC OnLine Del 2629, to observe 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.
28. In view of the above discussed law, it is evident that in view of Order VIII Rule 1 CPC read with Chapter VII Rule 4 of the Delhi High Court (Original Side) Rules, 2018, only a maximum extension of 90 days can be granted beyond the initial 30 days, which however is not a matter of right. Further, the words “but not thereafter makes it unequivocally clear that in no circumstance can an extension beyond 120 (30 + 90) days be granted. The cases relied on by the defendant No. 5 do not aid its case in view of the settled law.
29. In the present case, the learned counsel for defendant No.5 had been impleaded and had put in appearance as a party to the suit, on 17.07.2019. The defendant No.5 had 120 days from the said date i.e. up to 16.11.2019 to file the Written Statement as per the law enumerated above. However, no Written Statement has been filed on behalf of defendant No.5, despite the fact that a counsel had appeared on her behalf on 27.02.2020 seeking permission to file the Written Statement with an application for Condonation of Delay.
30. The defendant No.5 has explained that it was because of the negligence of her then counsel that she was unable to file a Written Statement. However, to say that the defendants counsel was negligent is not borne by the record. Moreover, as per the averments of the defendant No.5 herself, she had engaged a counsel and the judicial record shows that he had been appearing in the Court on her behalf till 27.02.2020. The period of 120 days within which mandatorily the Written Statement had to be filed, expired in November, 2019 itself, which is before the Counsel stopped appearing on her behalf.
31. The law, as discussed above, does not permit the Written Statement to be taken on record beyond 120 days. Therefore, the learned Joint Registrar vide impugned Order dated 18.03.2021 has rightly closed the right of defendant No.5 to file the Written Statement. There is no infirmity in the impugned Order dated 18.03.2021.
32. The Chamber Appeal is accordingly dismissed.
CS (OS) 255/2017
33. List before learned Joint Registrar for completion of pleadings and admission/denial of documents on 27.03.2024.

(NEENA BANSAL KRISHNA)
JUDGE

FEBRUARY 28, 2024/va

CS (COMM) 255/2017 Page 1 of 10