SACHIN KUMAR vs RAVI AHUJA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 16th January, 2024 % Pronounced on:20th February, 2024 + CS(OS) 485/2021 SACHIN KUMAR ….. Plaintiff Through: Ms. Counsel (appearance not given). versus RAVI AHUJA & ORS. ….. Defendants Through: Mr. Saumitra Singhal, Advocate for D-1. CORAM: HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA J U D G M E N T NEENA BANSAL KRISHNA, J. I.A. 25981/2023 (u/S 5 of Limitation Act, 1963 r/w Section 151 of CPC, 1908 by defendant No. 3 for condonation of 329 days’ delay in filing O.A. 144/2023)
1. By way of present application, the applicant/defendant No. 3 seeks condonation of 329 days’ delay in filing the O.A. 144/2023.

2. For the reasons and grounds stated in the present application, the application is allowed, the delay of 329 days in filing the O.A. 144/2023 is condoned .

3. Accordingly, the present application is disposed of.

I.A. 25982/2023 (u/S 151 of CPC, 1908 by defendant No. 3 for condonation of 6 days’ delay in re-filing the present application)
4. By way of present application, the applicant/defendant No. 3 seeks

condonation of 06 days’ delay in re-filing the present application.

5. For the reasons and grounds stated in the present application, the application is allowed, the delay of 6 days in re-filing the present application is condoned .

6. Accordingly, the present application is disposed of.

O.A. 144/2023 (u/Ch. II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 by defendant No. 3 against the Order dated 06.12.2022 closing the right of defendant No. 3 to file the Written Statement)
7. By way of present Chamber Appeal, the appellant/defendant No. 3 assails the Order dated 06.12.2022 vide which the Joint Registrar has closed the right of appellant/defendant No. 3 to file the Written Statement.

8. The plaintiff had filed the Suit for Partition, Rendition of Accounts, Possession and Permanent Injunction against the defendants who are the siblings. The father of the parties had expired on 07.04.2021 and their mother expired on 23.05.2021 leaving behind the properties as detailed in Schedule-I and II of the Plaint which are the subject matter of the Suit.

9. The summons were issued to all the defendants vide Order dated 08.10.2021. All the defendants were served as recorded in Order dated 11.11.2021 and were thereafter, referred to mediation. The mediation did not succeed as has been observed in the Order dated 24.08.2021. The appellant/defendant No. 3 has submitted that since it was a family dispute, he could not engage the Lawyer and the Written Statement could not be filed. The appellant/defendant No. 3 engaged the Lawyer subsequently, who appeared in the Court on 06.12.2022, but since the Written Statement was not filed, the right to file the Written Statement was closed by the learned Registrar.

10. To assail the Order dated 06.12.2022, an Application under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) had been filed by the then counsel, but it was under objections with the observation that it may be made an O.A. (Chamber Appeal) for setting aside the Order of the Joint Registrar. Since, the objections could not be removed, the Application was under scrutiny and the Chamber Appeal could not be filed within time. The new counsel was engaged who has filed the present Chamber Appeal.

11. It is submitted that the impugned Order dated 06.12.2022 is erroneous in facts and law applicable in the present case. The Joint Registrar had failed to consider that the matter was pending in mediation till the last date of hearing i.e., 24.08.2022 which was fixed for the report from the mediation Centre.

12. Further, the right of the answering appellant/defendant No. 3 would be affected if he is not permitted to contest the claim of partition.

13. A prayer is, therefore, made that the impugned Order dated 06.12.2022 be set aside and the answering appellant/defendant No. 3 be permitted to file the Written Statement.

14. No formal Reply has been filed on behalf of the plaintiff.

15. Submissions heard.

16. 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 upto 120 days for sufficient reasons.

17. 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.”
18. The above provisions provide that a total period of 120 days can be granted for filing a Written Statement.

19. 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.

20. In the case of Gautam Gambir v. Jai Ambay Traders and Ors. 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.

21. 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 v. Alok Kalia & Ors. 2023 SCC OnLine Del 1238, Ram Sarup Lugani & Anr. v. Nirmal Lugani & Ors 2020 SCC OnLine Del 135, and Harjyoti Singh v. Manpreet Kaur, 2021 SCC OnLine Del 2629, to hold 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. It was 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.

22. In view of the above discussed law, it is evident that in view of 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.

23. In the present case, as per the submissions of the answering appellant/defendant No. 3 himself and as per the record, the defendants were served on 02.11.2021 which was confirmed in the Order dated 11.11.2021, wherein it was noted that the summons had been served on all defendants. The maximum time available with the answering appellant/defendant No. 3 for filing the Written Statement was of 120 days from the date the summons were served, which expired on 02.03.2022.

24. The time for filing of the Written Statement had already expired when the parties were referred to mediation on 28.04.2022. Therefore, the

appellant cannot take the benefit of the exclusion of time spent in mediation as in the present case, 120 days had expired even before the parties were referred to Mediation. The mandatory timeframe of 120 days for filing of Written Statement having expired, the right of defendant no.3 has been rightly closed by the Joint Registrar.

25. For the foregoing reasons, there is no infirmity in the Order dated 06.12.2022 closing the right of the defendant.no3 to file the written statement.

26. Accordingly, the present Chamber Appeal is hereby dismissed.

(NEENA BANSAL KRISHNA) JUDGE FEBRUARY 20, 2024 S.Sharma/nk