SUNIL KUMAR & ANR vs HARISH CHANDER & ANR

$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 31.07.2024
+ CS (OS) 456/2018& I.A. 343/2022
SUNIL KUMAR & ANR …..Plaintiffs
Through: Mr. Narendra Gautam, Mr. Anwar Ali Khan, Mr. Subhash Yadav, Mr. Nitin Kumar, Mr. Rohit Kumar and Mr. Mitu Raj, Advs. for P-1
versus

HARISH CHANDER & ANR …..Defendants
Through: Mr. Harish Chander, Adv. for D-1
Ms. Nidhi Mohan Parashar and Mr. Anand Chichra and Mr. Amar Bajpayee, Advs. for D-2
CORAM:
HON’BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT

VIKAS MAHAJAN, J. (ORAL)

I.A. 344/2022 (by the defendants / appellants under Section 151 CPC seeking exemption from filing certified as well as typed copies of the documents)

1. Allowed, subject to all just exceptions.
2. The application stands disposed of.

I.A. 345/2022 (by the defendants / appellants under Section 5 Indian Limitation Act read with Section 151 CPC for condonation of delay in filing the Original Appeal)

3. For the reasons mentioned in the application, the same is allowed.
4. The application stands disposed of.

O.A. 3/2022 (Original Appeal under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 against the Order dated 11.11.2021 passed by learned Joint Registrar)
5. The present O.A has been filed by the defendants /appellants against the order dated 11.11.2021 passed by the learned Joint Registrar wherein it was held that the written statement filed by the defendants on 29.02.2019 cannot be taken on record as the same is time barred.
6. The brief facts necessary for deciding the present O.A. are that the written statement was initially filed by the defendants on 01.12.2018 i.e. within the statutory period of 30 days from the date of receipt of summons. However, the learned Joint Registrar vide order dated 15.01.2019 noticed that the written statement filed was lying under objection. Resultantly, the defendants re-filed the written statement on 28.01.2019 but it was again returned under objection. Thereafter, this Court vide order dated 09.04.2019 noted that the written statement has not been filed and simultaneously directed the parties to remain present on 23.04.2019 to explore the possibility of an amicable resolution of the disputes.
7. The learned counsel for the defendant no.2 submits that subsequently this Court passed an order on 23.04.2019 closing the right of the defendants to file the written statement under the impression that no written statement has been filed by the defendants within the statutory period of 120 days stipulated under the Delhi High Court (Original Side) Rules, 2018 [hereinafter ‘the Rules of 2018’].
8. Thus, the defendants were constrained to challenge the aforesaid order dated 23.04.2019 by preferring FAO (OS) 99/2019 which was disposed of vide order dated 02.12.2019 and the order dated 23.04.2019 passed by the learned Single Judge was set aside to the extent of closing the right of the defendants to file the written statement but the defendants were directed to move an application seeking condonation of delay in filing the written statement to be decided by the learned Single Judge on 24.02.2020.
9. On 24.02.2020 after hearing the parties at length, the learned Single Judge permitted the defendants to place on record their written statement and to cure the remaining defects by 02.03.2020 subject to payment of costs of Rs. 50,000/-.Sequel to above, the defendants re-filed the written statement on 29.02.2020 in terms of the order dated 24.02.2020 and also paid the cost to the plaintiffs through counsel.
10. It appears subsequently, fresh defect was notified by the Registry qua the filing of the written statement apropos non-payment of one-time process fee in view of the notification dated 23.08.2019 issued in terms of the Rule 2 Chapter VI of Delhi High Court (Original Side) Rules 2018.
11. It is pertinent to note that though this Court vide order dated 24.02.2020
had re-notified the matter for 14.07.2020 but due to onset of Covid 19, the matter was not listed on the said date. A perusal of the order sheets reveal that the matter was thereafter listed on 17.08.2020 through video conferencing, but there is nothing on record to suggest that the defendants were put to notice with regard to the postponement of hearing to 17.08.2020. The same was the position on 04.09.2020 when the matter was again listed, but on 04.09.2020 the learned Joint Registrar closed the right of defendants to file the written statement in terms of order dated 24.02.2020.
12. Thereafter, the defendant no.2 passed away on 11.12.2020 and vide order dated 05.02.2021 the learned Joint Registrar brought the legal representatives of defendant no.2 on record.
13. It is pertinent to mention here that when the aforesaid order dated 04.09.2020 came to the notice of the defendants, an O.A No.48/2020 was filed by them impugning the order dated 04.09.2020 passed by the learned Joint Registrar. This Court vide order dated 16.03.2021 after noting that the order dated 04.09.2020 was passed in the absence of the counsel for the defendants directed the learned Joint Registrar to grant one opportunity of hearing the defendants.
14. The learned Joint Registrar, however, vide order dated 11.11.2021 (‘impugned order’) rejected the plea of the defendants that their counsel was not aware that the written statement filed on 29.02.2020 was lying under defects and held that the Registry was not required to send intimation to litigant regarding the status of the written statement and it was the duty of the counsel to find out the status of the objections and rectify the defects. Consequently, the learned Joint Registrar held that the written statement filed by the defendants cannot be taken on record as time barred.
15. It is the submission of learned counsel for the defendant no.2 that re-filing of written statement on 29.02.2020 shall relate back to the date of initial filing of the written statement on 01.12.2018 and as the requirement for payment of one-time process fee was introduced vide notification dated 23.08.2019, the same shall not be applicable to the written statement filed on 01.12.2018.
16. She further submits that Rule 2 of Chapter VI of the Rules of 2018 does not put any responsibility on the shoulder of the parties to the suit to pay one time process fee, rather it creates obligation on part of the Registry to collect the same from the parties. She submits that on account of procedural lapse on part of the counsel, the defendants cannot be put to prejudice by passing punitive order of present nature directing that their written statement cannot be taken on record as time barred.
17. Elaborating further, she submits that the written statement was initially filed on 01.12.2018 i.e. within a period of 30 days and this Court, vide order dated 24.02.2020 had allowed the defendants to cure the remaining defects by 02.03.2020 subject to payment of cost of Rs. 50,000/-.She submits that not only the defects notified till that date were cured but the cost of Rs. 50,000/- was also paid to the plaintiff through their counsel. She submits that non-deposit of one-time process fee is not a deliberate act on part of the defendants. If the defendants could pay a cost of Rs.50,000/-, they could have also paid one time process fee of Rs. 500/- had the same been notified to them or their counsel at the time of re-filing of the written statement on 29.02.2020.
18. Therefore, it has been prayed to set aside the impugned order and grant one opportunity to the defendants to pay the requisite one-time process fee.
19. Per contra, the learned counsel for the plaintiffs has opposed the O.A. on the ground that repeated opportunities have been given to the defendants to cure the defects. He submits that despite the indulgence given by this Court vide order dated 24.02.2020, the defendants failed to cure the defects by 02.03.2020, therefore, no further indulgence should be given by this Court to the defendants.

20. I have heard the learned counsel for the appellants / defendants, as well as, the learned counsel for the respondents / plaintiffs.
21. Before proceeding to decide the issue at hand, it is apposite to refer to Rule 2, Chapter VI of the Rules of 2018 which reads as under: –
“2. Time for payment of process fee and consequence of non payment.—Process fees, in a sum to be determined, shall be collected one time from the plaintiff at the time of institution of the suit. Process fee, in a sum to be determined, shall be collected one time from the defendant at the time of filing the written statement. In case a party is burdened with payment of expenses towards publication, commission etc. the same shall be forthwith deposited and no later than seven days of the date of the order. The Court shall notify the process fee payable from time to time and require the plaintiff to ensure availability of copies of the plaint and documents for service on other side.

If the plaintiff or applicant fails to take any step or where the plaintiff or applicant commits default in furnishing/ making such payment or it appears to the Registrar that he is not prosecuting the matter with due diligence, the Registrar shall call upon the party to explain the default and if no explanation is offered, or if the explanation offered appears to the Registrar to be insufficient, the Registrar may issue summons calling upon the plaintiff or the applicant to show cause before the Court why the plaint or the application should not be dismissed.”

22. The notification providing one-time process fee in terms of Rule 2 of Chapter VI of the Rules came to be issued by the High Court of Delhi on 23.08.2019. The text of the notification reads thus:

“NOTIFICATION

No. 680/Rules/DHC Dated: 23.08.2019

Hon’ble the Chief Justice and companion Judges have been pleased to resolve that in terms of Rule 2, Chapter-VI of the Delhi High Court Original Side) Rules, 2018, one-time process fee of Rs. 1,000/- for plaintiff(s) and Rs. 500/- per defendant shall be payable at the time of filing of the suit and the written statement respectively.
Further, it is clarified that one-time process fee shall not include any other incidental levies/fees such as diet money for witnesses, filing of registered covers etc.
The above fee shall be chargeable w.e. f. 01.09.2019.
23. A perusal of Rule 2 of Chapter VI of the Rules reveals that no responsibility is cast upon the party to the suit to deposit one-time process fee, rather, the use of expression “shall be collected one time from the plaintiff at the time of institution of the suit” and “shall be collected one time from the defendants at the time of filing of the written statement”, indicates that the responsibility has been cast upon the Registry to collect one-time process fee from the parties to the suit at the time of institution of the suit or filing of the written statements, as the case may be. It appears that at the time of re-filing of written statement on 29.02.2020, the Registry did not notify it to the defendants or their counsel in respect of the requirement to pay one-time process fee of Rs. 500/-. Thus, the defendants cannot be said to be at fault.
24. The second part of the aforesaid Rule provides for further course to be adopted in the event of failure of plaintiff or applicant to make payment as contemplated in the first part of the said Rule. It provides that where one-time payment is not made by the plaintiff or applicant, the Registrar shall call upon the plaintiff/applicant to explain the default and if no explanation is offered or if the explanation offered appears to the Registrar to be insufficient, the Registrar may issue summons calling upon the plaintiff or the applicant to show cause before the Court why the plaint or application should not be dismissed.
25. The second part does not specifically provide for any penal consequence for non-deposit of one-time process fee by the defendants at the time of filing of written statement. This being the position, no punitive order could have been passed by the learned Joint Registrar and that too without affording two tier opportunity – one to explain the default before the Registrar, and second, to show cause before the Court – as contemplated in case of default in payment of one-time process in respect of suit or application. Further, the learned Joint Registrar also lost sight of the fact that the written statement was initially filed within the statutory period of thirty days and merely because one-time process fee was not deposited in terms of the Rule which came into force after initial filing, cannot be held to be non-est.
26. It is trite that when dealing with matters of procedure the old adage of procedural laws being handmaid of justice must be kept in mind. It is apposite to refer to the following observations made by the Hon’ble Supreme Court in Rani Kusum vs. Kanchan Devi: (2005) 6 SCC 705, while considering the power of Court under the proviso of Order VIII Rule 1 of CPC to extend the period to file the written statement beyond 90 days:
“All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processsual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should originally be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet the extraordinary situation in the ends of justice.”

27. Incidentally, this is not a case where the defendants had failed to file the written statement within the statutory period provided under law. It is a case where the defendants did re-file the written statement on 29.02.2020, after removing all the objections notified till that date, however, the Registry raised yet another objection of non-payment of one-time process fee. I also find substance in the submission of the learned counsel for the defendant no.2 that when the defendants had paid the cost of Rs. 50,000/- to the plaintiffs, they would have also paid one-time process fee of Rs.500/-had the same been asked from them or their counsel by the Registry at the time of re-filing of the written statement on 29.02.2020.
28. This Court can also take judicial notice of the fact that after the written statement was re-filed by the defendants on 29.02.2020, the cases of Covid-19 started rising and soon thereafter, in the month of March 2020, a nationwide lock down was imposed and the proceedings before this Court were switched from physical mode to video-conferencing and in many matters effective proceedings did not take place. As noted above, even the present matter vide order dated 24.02.2020 was re-notified for 14.07.2020 but the matter was not listed on the said date, rather it was taken up on 17.08.2020 through video conferencing in the absence of the defendants or their counsels and the same was the position on 04.09.2020 when the matter was again listed before the learned Joint Registrar. Even the Hon’ble Supreme Court after considering the impact of the surge of the Corona virus on public health and adversities faced by the litigants, in M.A. No. 21 of 2022 in Suo Moto Writ Petition No.3 of 2020 has passed an order directing for the exclusion of period from 15.03.2020 till 28.02.2022 for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.
29. In view of the above discussion, this Court is of the view that the appeal of the appellants/defendants deserves to be allowed. Ordered accordingly. Consequently, the impugned order dated 11.11.2021 of the learned Joint Registrar is set aside.
30. The appellants /defendants are granted three weeks’ time to rectify the defect and deposit one-time process fee of Rs. 500/- in terms of Rule 2 Chapter VI of the Rules.
31. The OA stands disposed of.
CS(OS) 456/2018
32. The learned counsel appearing on behalf of the plaintiffs at this stage submits that the plaintiffs have already entered into a settlement agreement with the defendant no. 1 and they are ready to settle the matter even with the LRs of defendant no. 2 and urges the Court to refer the matter to mediation.
33. The proposal so mooted is not opposed by the learned counsel for LRs of the defendant no. 2.
34. Accordingly, parties are referred to mediation and are directed to appear before the Delhi High Court Mediation and Conciliation Centre on 12.08.2024 at 03.00 P.M.
35. List before Court for reporting settlement, if any, on 12.11.2024.

VIKAS MAHAJAN, J
JULY 31, 2024
N.S. ASWAL

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