SHRADDHA SHANDILYAYAN vs LIVECITIES MEDIA PRIVATE LIMITED & ORS.

$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st February, 2024
+ CS(OS) 641/2018
SHRADDHA SHANDILYAYAN ….. Plaintiff
Through: Mr. D. Abhinav Rao and Ms. Devadipta Das, Advocates
versus

LIVECITIES MEDIA PRIVATE LIMITED & ORS. ….. Defendants
Through: Mr. Vivek Aggarwal, Mr. Shoaib Khan and Mr. Praveen Kumar, Advocates for D-4
Ms. Rishika Goyal, Advocate for D-5
Ms. Shruti, Advocate for D-7
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 13846/2022 (u/S 5 of Limitation Act, 1963 r/w Section 151 of CPC, 1908)

1. By way of present application, the applicant/defendant No. 2 seeks condonation of 130 days’ delay in re-filing I.A. 13845/2022 under Order IX Rule 7 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”).
2. For the reasons and grounds stated in the present application, the application is allowed, the delay of 130 days in re-filing I.A. 13845/2022 under Order IX Rule 7 of CPC, 1908 is condoned.
3. Accordingly, the present application is disposed of.

I.A. 13748/2022 (u/S 5 of Limitation Act, 1963 r/w Section 151 of CPC, 1908

4. By way of present application, the applicant/defendant No. 2 seeks condonation of 130 days’ delay in re-filing I.A. 13747/2022 under Order VIII Rule 1 read with Section 151of the CPC, 1908.
5. For the reasons and grounds stated in the present application, the application is allowed, the delay of 130 days in re-filing I.A. 13747/2022 under Order VIII Rule 1 read with Section 151of the CPC, 1908 is condoned.
6. Accordingly, the present application is disposed of.
I.A. 13845/2022 (u/O IX Rule 7 r/w Section 151 of CPC, 1908 for setting aside ex parte Order dated 13.11.2019 by D-2)

7. By way of Application under Order IX Rule 7 read with Section 151 of CPC, 1908, defendant No. 2 seeks to set aside the ex parte Order dated 13.11.2019 vide which it was proceeded against ex parte.
8. It is submitted in the application that the learned counsel for defendant No. 2 could not appear on 13.11.2019, the day when the ex-parte Order had been passed, for the reason that the grandmother of the learned counsel of the defendant No. 2 had expired on 13.11.2019 and he had gone to his native village in the early morning on the said date, for the last rites of his grandmother. He had requested his colleague to appear on his behalf, but by the time his colleague appeared, the defendant No. 2 had already been proceeded ex parte.
9. Thereafter, the second application for amendment of the Plaint was filed on 29.11.2019 and the same was allowed vide Order dated 20.12.2019.The counsel for defendant No. 2 was in the process of preparing the Written Statement of the amended Plaint, when he noticed that the defendant No. 2 has been proceeded ex parte.
10. Therefore, the prayer is made that the Order dated 13.11.2019 whereby the applicant/defendant No. 2 was proceeded ex parte, may be set aside and an opportunity be given to file the Written Statement.
11. The plaintiff in its Reply has contended that the applicant was proceeded against ex-parte after seven months of his service and had time to file the Written Statement. Further, there is no explanation forthcoming for non-appearance of the applicant when the matter was listed on 01.08.2019, 13.11.2019, 2.12.2019, 20.12.2019, and 22.01.2020.
12. Furthermore, the said application under Order IX Rule 7, CPC, 1908 seeking to set aside the Order dated 13.11.2019 kept on lying in defect for more than two and a half years before the Registry, without any legitimate explanation for the delay in re-filing the application.
13. It is, therefore, submitted that the present application is without merit and is liable to be dismissed.
14. Submissions heard.
15. To comprehend the assertions made by the non-applicant/plaintiff, it would be relevant to mention the following dates: –
S. No.
Date
Remarks
1.
07.03.2019
Defendant No. 2 served.
2.
15.03.2019
I.A. 3884/2018 u/O VI Rule 17 r/w Section 151 of CPC, 1908 was filed on behalf of plaintiff.
None appeared on behalf of defendant No. 2
3.
25.04.2019
Counsel for defendant No. 2 appeared for the first time.
4.
03.07.2019
None appeared on behalf of defendant No. 2
5.
24.07.2019
Counsel for defendant No. 2 appeared.
6.
01.08.2019
None appeared on behalf of defendant No. 2.
I.A. 3884/2019 u/O VI Rule 17 r/w Section 151 of CPC, 1908 was withdrawn by plaintiff.
7.
13.11.2019
Defendant No. 2 was proceeded ex parte.
8.
29.11.2019
I.A. 16944/2019 u/O VI Rule 17 r/w Section 151 of CPC, 1908 was filed on behalf of plaintiff (second amendment application).
9.
02.12.2019
I.A. 16944/2019 u/O VI Rule 17 r/w Section 151 of CPC, 1908 listed before the Court.
10.
20.12.2019
None appeared on behalf defendant No. 2.
I.A. No. 16944/2019 u/O VI Rule 17 r/w Section 151 of CPC, 1908 was filed on behalf of plaintiff (second amendment application) was allowed.
11.
16.01.2020
Counsel for defendant No. 2 appeared.
12.
22.01.2020
None appeared on behalf of defendant No. 2.
13.
13.02.2020
Counsel for defendant No. 2 appeared.
14.
20.02.2020
Counsel for defendant No. 2 appeared.
15.
13.03.2020
Application for setting aside ex-parte Order filed (but was lying in objections).
16.
18.03.2020
Application for Condonation of delay in filing Written Statement was filed (but was lying in objections).
17.
23.08.2022
Application for Condonation of delay in filing Written Statement was finally filed.
18.
29.08.2022
Application for setting aside ex-parte Order filed

16. The defendant No.2 has sought setting aside of the Order dated 13.11.2019, for which the explanation given is that on the said date, the grandmother of the counsel of the applicant/defendant No. 2 had expired on 13.11.2019 and he had gone to his native village in the early morning on the said date for the last rites of his grandmother and he his colleague whom he has requested to appear on his behalf, but by the time his colleague appeared, the defendant No. 2 had already been proceeded ex parte.
17. For the reasons stated above, I.A. 13845/2022 under Order IX Rule 7 read with Section 151 of CPC, 1908, on behalf of the applicant/defendant No. 2 is allowed and the ex-parte Order dated 13.11.2019 is set aside.
I.A. 13747/2022 (u/O VIII Rule 1 r/w Section of 151 of CPC, 1908 for condonation of 361 days’ delay in filing Written Statement by D-2):

18. The defendant No. 2 for the aforementioned reasons, has also preferred this application under Order VIII Rule 1 read with Section 151 of CPC, 1908 seeking condonation of 361 days’ delay in filing the Written Statement.
19. The detailed Reply has been filed on behalf of the non-applicant/plaintiff wherein it is submitted that there is a delay of 361 days in filing the Written Statement for which no explanation has been given. Defendant No. 2 had entered appearance on 25.04.2019 through ld. Counsel who had filed his vakalatnama on behalf of Defendant No.2. However, on 25.04.2019, the Application No. I.A. 3884/2019 under Order VI Rule 17 of CPC, 1908 seeking amendment of the Plaint was filed which was eventually withdrawn on 01.08.2019.
20. It is asserted that due to the pendency of the application for amendment of plaint filed by the plaintiff, the applicant/defendant No. 2 was unable to file the Written Statement.
21. The application is opposed by the plaintiff who has asserted that under no circumstances can the time for filing the Written Statement can be extended beyond 120 days.
Submissions Heard.
22. 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.
23. 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.
24. 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.”

25. The above provision of Delhi High Court Rules also provides that a total period of 120 days can be granted for filing a Written Statement.
26. 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.
27. In the case of Gautam Gambir v. M/s. Jai Ambe Traders and Ors. 273(2020) DLT 49, 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.
28. In the case of Ram Sarup Lugani v. Nirmal Lugani 276 (2021) DLT 681(DB), 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.
29. This aspect was comprehensively considered by the Coordinate Bench of this Court in the case of Ms Charu Agrawal v. Mr Alok Kalia & Ors. Neutral Citation No. 2023/DHC/001454. 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. The court relied on the case of Ram Sarup Lugani (supra) to observe that the phrase “but not thereafter” must clearly be accorded due weight.
30. The Co-ordinate Bench of this Court in Ms. Charu Agarwal (supra), considered the entire compendium of the judgments on this aspect to reiterate that there cannot be an extension of period of 120 days for the filing of the Written Statement.
31. 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.
Analysis:
32. 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, can be granted.
33. In this backdrop, it would be pertinent to observe that the applicant/defendant No. 2 was served on 07.03.2019. The Written Statement was required to be filed on behalf of the applicant/defendant No. 2 within 90 days, extendable by another 30 days on showing sufficient cause. Admittedly, there was an appearance on behalf of the defendant No. 2 on 25.04.2019 and 24.07.2019, though none appeared on behalf of the defendant No. 2 on 03.07.2019 and 01.08.2019. Irrespective of the appearance /non-appearance on behalf of the defendant No.2, the Written Statement was required to be filed by the applicant/defendant No. 2 within a maximum of 120 days from the date of service of summons i.e., by 06.07.2019. There is no explanation forthcoming as to why the Written Statement was not filed within the stipulated period of 120 days which is maximum period provided under the law.
34. It is pertinent to mention that I.A. 3884/2018 under Order VI Rule 17 read with Section 151 of CPC, 1908 was filed on behalf of plaintiff on 24.04.2019 which was withdrawn on 01.08.2019. Mere pendency of an amendment application is not a ground or reason for defendant No. 2 to not have filed the Written Statement to the original Plaint. Even if it is accepted that because of the pendency of the amendment application, there was no purpose in filing the Written Statement, then too, the amendment application got withdrawn on 01.08.2019 and there was sufficient time for the defendant No.2 to have filed the Written Statement before the next date of hearing, that was 13.11.2019.
35. The second amendment Application i.e., I.A. 16944/2019 under Order VI Rule 17 read with Section 151 of CPC, 1908 was filed on behalf of plaintiff on 02.12.2019 which was allowed on 20.12.2019. But the period of filing the Written Statement in 120 days stood expired before the said date 02.12.2019 on which the amendment application was filed. There is no explanation forthcoming as to why the Written Statement was not filed within the said period, as well.
36. Even if a stretched interpretation is taken, then too, the limitation of 120 days from the said date expired on 19.04.2020. This came within the COVID-19 Pandemic period and in view of the Order dated 23.03.2020 passed by the Apex Court in Re: Cognizance for Extension of Limitation for Extension of Limitation, wherein the period of limitation for cases where limitation expired in between 15.03.2020 till 28.02.2022, was extended by 90 days from 01.03.2022, which got over on 01.06.2022. However, the Written Statement has not even been filed in that extended period. Allegedly, the application had been filed on 18.03.2022 but was lying under objections, and the present application seeking condonation of delay has been re-filed only on 23.08.2022 which way beyond the period limitation.
Conclusion:
37. The applicant/defendant No. 2 has failed to file the Written Statement within the period of 120 days which is not extendable beyond the defined period as discussed above.
38. Therefore, the Application under Order VIII Rule 1 read with Section 151 of CPC, 1908 seeking condonation of 361 days’ delay in filing the Written Statement without any merit and hereby dismissed.
CS(OS) 641/2018, I.A. No.17156/2018 (u/O XXXIX Rules 1 & 2 of CPC by plaintiff) & I.A. No.3318/2020 (u/O I Rule 10(2) of CPC for deletion of name of defendant no.10)

39. List before the learned Joint Registrar on date already fixed i.e. 25.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 21, 2024
S.Sharma

CS(OS) 641/2018 Page 11 of 11