SADHNA GUPTA vs SANEH KUMAR MITTAL & ORS.

2024-02-29 Information

$~13

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision:29th February, 2024
+ CS(OS) 369/2018, I.A. 454/2019
SADHNA GUPTA ….. Plaintiff
Through: Mr. S.C. Singhal, Advocate.
Mr. Vibhor Garg, Mr. Keshav Tiwari and Ms. Ishita Mehta, Advocates.

versus

SANEH KUMAR MITTAL & ORS. ….. Defendants
Through: Ms. Kirti Mewar, Advocate
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
O.A. 5/2024 (Chamber Appeal under Chapter II, Rule 5 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC on behalf of Defendant Nos.2, 5 and 6 for Recalling/Modification/Setting Aside Order Dated 13.12.2023 Passed by the Ld.Joint Registrar)

1. The Chamber Appeal under Chapter II Rule 5 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), has been filed on behalf of the defendant Nos. 2, 5 and 6 for recalling/modification/setting-aside the Order dated 13.12.2023, vide which the learned Joint Registrar has declined to take their Written Statement on record, by observing that they were filed beyond the period of 120 days from the date of service.
2. Briefly stated, suit for Partition, Declaration and Injunction has been filed by the plaintiff against the defendants, who are the family members.
3. It is asserted that though defendant No. 2 was served on 19.08.2018, defendant Nos. 5 and 6 were never served; the summons had been received on behalf of them all by Ms. Indu Mittal, the wife of defendant No. 2 and mother of defendant Nos. 5 and 6.
4. Further, the Written Statement was filed for the first time on 04.12.2018 i.e. after 107 days, from the date of service though the application for extension of time was not filed seeking extension of time beyond 30 days. Thus, the Written Statement was initially filed within a period of 120 days. Thereafter, the defendants filed an application for condonation of delay on 13.02.2019 which was dismissed by the learned Joint Registrar vide Order dated 13.12.2023.
5. Aggrieved by the said order, the present appeal has been preferred wherein is asserted that the Written Statement had been filed well within 120 days of service of the summons.
6. The Appeal is contested by the plaintiff who in her Reply has stated that the impugned Order dated 13.12.2023 is well reasoned and correct and needs no interference.
7. It is asserted that the summons were served upon the defendants on 17.08.2018 as is reflected from the record and has also been recorded in Order dated 24.09.2018. The maximum period of filing the Written Statement is 120 days’ and the same expired on 14.12.2018 and the Written Statement has only been filed by the defendant Nos. 2, 5 and 6 on 26.02.2019. Thus, the period of filing of Written Statement stood expired and the Written Statement cannot be taken on record. Reliance is placed on the case of Col Ashish Khanna SM Retd vs. Delhi Gymkhana Club & Ors. CS(OS) 171/22, decided on 21.08.2023 by a Co-ordinate Bench of this Court in this regard.
8. Thus, the appeal is liable to be dismissed.
9. Submissions heard.
10. The perusal of record shows that the suit for Partition and Injunction was filed on 17.07.2018. Summons were issued which were served upon the defendants, on 17.08.2018.
11. There is no denial and it is also borne out from the record that the defendant Nos. 2, 5 and 6 were served through Ms. Indu Mittal, on 17.08.2018 and all three defendants had put in appearance through counsel on 24.09.2018. Having been served on 17.08.2018, they should have filed the Written Statement within a maximum period of 120 days i.e. upto 16.12.2018.
12. The defendants have asserted that the Written Statement was filed on their behalf on 04.12.2018. However, the same had been returned because it was not supported with the affidavit of admission/denial of documents, which is mandatorily required to be filed with the Written Statement in accordance with Chapter VII Rule 3 of the Delhi High Court Rules, 2018.
13. The Written Statement so sought to be filed was non-est in law and the date of filing of the Written Statement, cannot be deemed to be 04.12.2018. The condonation application has been filed for the first time on 13.02.2019 and the Written Statement has been filed on 26.02.2019 vide Diary no. 164520/2019. The condonation application as well as the Written Statement has been filed beyond the period of 120 days, from the date of service and therefore, cannot be taken on record, in terms of Order VIII Rule 1 and Rule 4 of Delhi High Court (Original Side) Rules. Reliance may be placed on the cases of Ms. Charu Agrawal v. Mr Alok Kalia & Ors. Neutral Citation No. 2023/DHC/001454; Gautam Gambhir v. M/s. Jai Ambe Traders and Ors. 273(2020) DLT 49 and Col Ashish Khanna SM Retd (Supra).
14. Thus, learned Joint Registrar has rightly concluded that there was a delay in filing of the Written Statement and the same could not be taken on record being beyond a period of 120 days from the date of service of summons.
15. An objection has been taken that the defendant Nos. 5 and 6 were not served in person and therefore, they cannot be deemed to be served till 24.09.20 18, when the learned counsel had appeared on their behalf for the first time. It is not disputed that the summons of defendant Nos. 5 and 6, had been served upon Ms. Indu Mittal, the mother on their behalf.
16. Order 5 Rule 15, CPC, provides that if the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence, he may be served through any adult member of the family whether male or female, who is residing with him.
17. There is no denial by defendant Nos. 5 and 6 that the summons were not received by the mother nor that they had no knowledge of the summons. In fact, the same counsel had appeared on behalf of the defendant Nos. 2, 5 and 6, who had been served through Ms. Indu Mittal.
18. Significantly, Second Proviso to Order IX Rule 13, CPC, also provides that any irregularity in the service of summons would be no ground to set-aside the ex-parte Order, if the Court is satisfied that the defendants had notice of the date of hearing and had sufficient time to appear. There is no challenge that through the summons received by their mother, the defendant Nos. 5 and 6, had come to know about the filing of the present suit.
19. Whichever way, the case of the defendant Nos. 2, 5 and 6 may be considered, the learned Joint Registrar has rightly concluded that the Written Statements have been filed beyond the period of 120 days, which is not condonable.
20. There is no merit in the Chamber Appeal, which is hereby dismissed.
O.A. 6/2024 (Chamber Appeal under Chapter II, Rule 5 of Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC on behalf of Defendant Nos.1(a), 3 and 4 for Recalling/Modification/Setting Aside Order Dated 13.12.2023)

21. The Chamber Appeal under Chapter II Rule 5 of Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC, has been filed on behalf of the defendant Nos. 1(a), 3 and 4 for recalling/modification/setting-aside the Order dated 13.12.2023, passed by the learned Joint Registrar, declining to take the Written Statement on record.
22. Briefly stated, Suit for Partition, Declaration and Injunction has been filed by the plaintiff against the defendants, who are family members.
23. It is asserted by the defendant Nos. 1(a), 3 and 4 that they were not served with the summons of the suit but came to know about the pendency of the matter through defendant No.2 and they entered appearance on 07.12.2018. Thereafter, the legal counsel was engaged by them on 04.01.2019 after which the Written Statement was filed on 13.02.2019 i.e. after a delay of about 37 days beyond the statutory period of 30 days from the date of summons/appearance before the Court, along with an application for condonation of delay.
24. It is submitted that the Written Statement filed was lying under objections raised by the Registry and their erstwhile Counsel falsely assured them that he would get the objections removed. It is asserted that on 07.02.2019, they were represented by their new Counsel (Lex Alliance) who informed them that their Written Statement was lying under objections. Thereafter, the defendant No 1 fell ill and passed away, due to which there was a further delay.
25. Subsequently, an application bearing I.A. No. 1525/2020 under Section 151 CPC for condonation of delay of 307 days in re-filing, had been filed.
26. However, the learned Joint Registrar vide Order dated 13.12.2023 denied taking the Written Statement on record, being filed beyond the period of 120 days.
27. Aggrieved, the present Chamber Appeal has been preferred wherein it is asserted that the Written Statement had been filed well within 120 days of service of the summons.
28. The Appeal is contested by the plaintiff vide her Reply, wherein she has stated that the Order dated 13.12.2023 passed by the learned Joint Registrar, is well reasoned and correct.
29. It is asserted that the summons were served upon the defendants on 17.08.2018 as is reflected in the record and has also been recorded in Order dated 24.09.2018. The maximum period of filing the Written Statement is 120 days and the same expired on 14.12.2018 and the Written Statement has been filed by the defendant Nos. 1(a), 3 and 4, only on 13.02.2019, which was defective. Thus, the period of filing of Written Statement stood expired and the Written Statement cannot be taken on record. Reliance is placed on the case of Col Ashish Khanna SM Retd vs. Delhi Gymkhana Club & Ors. CS(OS) 171/22, decided on 21.08.2023 by a Co-ordinate Bench of this Court in this regard.
30. Thus, the appeal is liable to be dismissed.
31. Submissions heard.
32. The perusal of record shows that the suit for Partition and Injunction was filed on 17.07.2018. Summons were served upon the defendants on 17.08.2018. The summons on behalf of the defendant Nos. 1(a), 3 and 4 were received by them personally on 17.08.2018. According to Order VIII Rule 1 CPC, they were required to file their Written Statement within 30 days, which could be extended by another 90 days, on showing sufficient cause. Admittedly, there is no application filed seeking further extension of 90 days, after the expiry of the initial 30 days.
33. The Written Statements were filed on their behalf for the first time on 13.02.2019 but was under objection because the affidavit of admission/denial of documents was not filed along with the Written Statement. Thereafter, the Written Statement along with the application for condonation of delay, has been filed on 13.01.2020 i.e. after the delay of 307 days in re-filing.
34. As admitted, the defendants had put in appearance in the Court, through counsel on 07.12.2018. However, the date of appearance is irrelevant for calculating the statutory period of filing the Written Statement. The service was effected on 17.08.2018, from when they had maximum 120 days i.e. 16.12.2018, for filing the Written Statement.
35. The Written Statement for the first time had been filed on 13.02.2019; irrespective of whether the Written Statement filed was correct or was defective, it was filed beyond the period of 120 days and therefore, could not have been taken on record.
36. Any further applications for condonation of delay and for re-filing of the Written Statement after curing the defects, as were noticed on 13.02.2019, are of no consequence.
37. The learned Joint Registrar has rightly relied upon the cases of Ms. Charu Agrawal v. Mr Alok Kalia & Ors. Neutral Citation No. 2023/DHC/001454; Gautam Gambhir v. M/s. Jai Ambe Traders and Ors. 273(2020) DLT 49 Col Ashish Khanna SM Retd (Supra), to conclude that the period of 120 days, cannot be extended under the present regime, under any circumstances.
38. Therefore, the learned Joint Registrar has rightly refused to take the Written Statement on record. There is no merit in the Chamber Appeal, which is hereby dismissed.
I.A. 454/2019 (by plaintiff u/O VIII Rule 10 & Section 151 of CPC filed for striking out of the defence of the defendants/passing the decree as prayed)

39. Pleadings qua the I.A. are complete.
40. List for consideration on 02.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 29, 2024/RS

CS(OS) 369/2018 Page 1 of 8