VINAY KUMAR HUF & ORS. vs AJAY KUMAR HUF & ORS.

2024-03-01 Information

$~13

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 01st March, 2024
+ CS(OS) 598/2019 & I.As. 16196/2019, 14204/2022

VINAY KUMAR HUF & ORS.
….. Plaintiffs
Through: Mr. Atul Sharma, Mr. Sanjay Sharma and Ms. Sharmistha Ghosh, Advocates.
versus

AJAY KUMR HUF & ORS.
….. Defendants
Through: Mr. K amlesh Anand, Advocate for D-4.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 21369/2022 (under Section 5 of the Limitation Act read with Section 151 CPC seeking Condonation of Delay in filing the Chamber Appeal)

I.A.15310/2022 (under Section 151 CPC on behalf of Defendant Nos.1 to 3 seeking Condonation of Delay in filing the Chamber Appeal and the Written Statement)

1. For the reasons stated in the applications, the delay of 58 days’ in filing the Chamber Appeal against Order dated 31.05.2022 in I.A. No. 15310/2022 and delay of 50 days’ in filing the Chamber Appeal against Order dated 31.05.2022 in I.A. No. 21369/2022 is condoned and the applications are allowed.
2. The applications are disposed of accordingly.
I.A.21370/2022 (under Section 151 CPC for Condonation of Delay in Re-filing the Original Application)
3. For the reasons stated in the application, the delay of 65 days’ in re-filing the Chamber Appeal is condoned and the application is allowed.
4. The application is disposed of accordingly
I.A.14204/2022 (under Section 151 CPC on behalf of the plaintiff)
5. The present application is infructuous.
6. The application is accordingly disposed of.
O.A.38/2022 (Chamber Appeal on behalf of Defendant Nos.1 to 3 under Chapter II, Rule 5 of Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC for Recall/Setting Aside of the Order Dated 31.05.2022 closing the right of the defendants to file a Written Statement)

O.A.76/2022 (Chambers Appeal under Chapter II Rule 5 of the Delhi High Court Rules on behalf of Defendant NO.4 against the Order Dated 31.05.2022)

7. The Chamber Appeal bearing No. 38/2022 has been filed under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC, on behalf of the defendant Nos. 1, 2 and 3 for recalling/modification/setting-aside the Order dated 31.05.2022, vide which the learned Joint Registrar has closed the right of the defendants to file a Written Statement, by observing that the statutory period 120 days, from the date of service, has already expired.
8. It is asserted in the application that the defendant Nos. 1,2 and 3 entered appearance in the captioned Suit on 14.01.2022 however, due to the peak of Covid Pandemic, the Written Statement could not be filed. Further, as per the Order dated 10.01.2022 passed by the Supreme Court in Suo Moto Writ Petition (Civil) No. 3 of 2020, the period from 15.03.2020 to 28.02.2022 stood excluded for the purposes of limitation and a further period of 90 days was provided in cases where the limitation stood expired between 15.03.2020 and 28.02.2022. Thus, the defendants Nos. 1,2 and 3 believed that they had upto 30.05.2020 to filed their Written Statement.
9. It is also submitted that on 31.05.2022, the Written Statement could not be filed on their behalf as defendant No.2 was out of town. The learned Counsel on their behalf had appeared on 31.05.2022 and requested the Court to grant them three days time to file the Written Statement however, their right to file the same was closed by the learned Joint Registrar. It is submitted that the Written Statement was filed on 14.07.2022 and the same may be permitted to be taken on record.
10. Aggrieved by the Order, the Appeal has been preferred.
11. The Chamber Appeal bearing No. 76/2022 has been filed under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC, on behalf of the defendant No. 4 for recalling/modification/setting-aside the Order dated 31.05.2022, vide which the learned Joint Registrar has closed the right of the defendant to file a Written Statement, by observing that the statutory period 120 days, from the date of service, has already expired.
12. It is asserted in the application that vide Order dated 14.01.2022, the defendant No.4 was directed to file the Written Statement within 4 weeks. However, due to the bad health of the applicant/defendant No.4, the same was not finalised in time and on 31.05.2022, the defendant No. 4 requested the learned Joint Registrar for a further time of four weeks to file the Written Statement. However, the same was declined and the right of the defendant No.4 to file a Written Statement was closed vide Order dated 31.05.2022.
13. It is submitted that the Written Statement was filed on 25.07.2022 however the same was put under objection and the same was re-filed after removing the objections; the same may be permitted to be taken on record.
14. Aggrieved by the Order dated 31.05.2022, the present Appeal has been preferred. The medical record of defendant No4 has also been filed.
15. Submissions heard.
16. The moot issue which arises for determination in both the applications 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.
17. 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.
18. 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.

19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
Analysis:
27. Perusal of the record shows that the Suit for Declaration, Specific Performance and Permanent and Perpetual Injunction was filed by the Plaintiffs on 15.11.2019. The summons in the Suit was served upon the defendant Nos. 1, 2 and 3 on 10.12.2021 and on defendant No.4 on 16.12.2021.
28. It is pertinent to note that defendant No.1 is the Ajay Kumar, HUF and the defendant No 2 is Mr. Ajay Gupta and their summons was served upon Defendant No.3, Mrs. Nina Gupta who is the wife of Defendant No.2 Mr Ajay Gupta.
29. Further, the summons was served upon defendant No.4 through his wife Kiran Gupta.
30. 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.
31. There is no denial by defendant No. 1 and 2 that the summons were received by the wife or that they had no knowledge of the summons. In fact, the same counsel had appeared on behalf of the defendant Nos. 1, 2 and 3 which shows that the summons was validly served upon them on 10.12.2021. Admittedly, all the three defendant Nos. 1, 2 and 3 had put in appearance through their counsel for the first time on 14.01.2022. Having been served on 10.12.2021, they should have filed the Written Statement within 120 days i.e. upto 09.04.2021.
32. Similarly, the service has also not been disputed by defendant No.4 and having been served on 16.12.2021, the Written Statement should have been filed on his behalf within 120 days as well i.e. upto 15.04.2021.
33. However, this period came within the COVID-19 Pandemic period and in view of the decision in Suo Moto Writ Petition (Civil) No. 3 of 2020 (Supra), 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, i.e. till 30.05.2022. However, the Written Statement has not even been filed in that extended period by the defendant nos. 1,2,3, and 4.
34. Admittedly, the Written Statement had been filed on behalf of defendant nos. 1,2 and 3 only on 14.07.2022 but a perusal of the noting shows that the same was also returned under objections. Similarly, the defendant No.4 has filed the Written Statement on 21.07.2022 but the same was returned under objections.
35. Evidently, the applicants/defendant Nos. 1,2 3 and 4 have failed to file the Written Statement within the period of 120 days which is not extendable beyond the defined period, as discussed above.
36. Therefore, the Applications are without any merit and hereby dismissed.
CS(OS) 598/2019
37. List before the learned Joint Registrar on 02.05.2024.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 01, 2024
rs

CS(OS)598/2019 Page 1 of 9