Full Judgment Text
$~72
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 8 April, 2025
+ CM(M) 2462/2024 & CM APPL. 25353/2024 & CM APPL.
5952/2025
DEVENDER KUMAR .....Petitioner
Through: Mr. Rajinder Singh with Mr. Arun
Sharma, Advocates.
(through V.C.)
versus
M/S NEXUS LIFE SCIENCE INDIA PVT LTD .....Respondent
Through: Mr. Sanjay Kumar Mishra, Advocate.
(through V.C.)
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
1. Petitioner is defending a suit seeking recovery of possession, arrears of
rent, damages, etc.
2. The suit was filed against Mr. Devender Kumar Mishra, who was
proceeded against ex-parte on 06.09.2022.
3. When an application was moved seeking to set aside the abovesaid
order and to permit him to participate in the proceedings, such application
also did not find favour and was dismissed by learned Trial Court on
08.01.2024.
4. Such orders are under challenge.
5. Mr. Rajinder Singh, learned counsel for the defendant (petitioner
herein) admits that the defendant was served with the summons on
06.03.2020 and pursuant to the instructions given by the defendant, his
Signature Not Verified
CM(M) 2462/2024 1
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:09.04.2025
18:19:00
counsel Mr. Sameer Hashmi appeared before the learned Trial Court on
17.05.2022.
6. Though, the Vakalatnama was filed by learned counsel for the
defendant but the matter was not pursued with the right earnest and since
nobody appeared before the Court on 06.09.2022 from his side, noticing that
no written statement had been filed, the right to file written statement was
closed and the defendant was proceeded against ex-parte .
7. As noticed already, the application seeking recall of the abovesaid
order has also been disallowed by learned Trial Court vide order dated
08.01.2024.
8. The contention raised in the present petition is two-fold. Firstly, the
counsel, who was representing the defendant, did not appear with due
diligence and rather stopped appearing altogether. It is submitted that such
non-appearance never came to the knowledge of the defendant which resulted
in adverse orders and it is in the abovesaid factual backdrop that the defendant
seeks restoration of his defence. Secondly and more importantly, on account
of pandemic of Covid-19 during the relevant period, the Court should have
condoned the delay and should have set aside the ex-parte order.
9. Learned counsel for the petitioner places reliance upon Rafiq v.
Munshilal, (1981) 2 SCC 788, Ram Kumar Gupta v. Har Prasad, (2010) 1
SCC 391 and In Re: Cognizance for Extension of Limitation, 2022 SCC
OnLine SC 27 .
10. This Court has gone through the application which the defendant had
moved whereby he had sought setting aside of order dated 06.09.2022
whereby he was proceeded against ex-parte . The entire endeavour of the
defendant is to blame his previous counsel. There is no explanation even
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CM(M) 2462/2024 2
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:09.04.2025
18:19:00
namesake as to why the defendant did not put in any appearance before
learned Trial Court till 17.05.2022 when, admittedly, they were served with
summons on 06.03.2020.
11. This Court is, however, cognizant about the judgment given by
Hon’ble Supreme Court in In Re: Cognizance for Extension of Limitation,
2022 SCC OnLine SC 27 and the relevant paras of the abovesaid judgment
read as under:-
“ 5. Taking into consideration the arguments advanced by the learned
counsel and the impact of the surge of the virus on public health and
adversities faced by litigants in the prevailing conditions, we deem it
appropriate to dispose of MA No. 21 of 2022 with the following directions:
I The order dated 23-3-2020 is restored and in continuation of the
subsequent orders dated 8-3-2021, 27-4-2021 and 23-9-2021, it
is directed that the period from 15-3-2020 till 28-2-2022 shall
stand excluded for the purposes of limitation as may be
prescribed under any general or special laws in respect of all
judicial or quasi-judicial proceedings.
II Consequently, the balance period of limitation remaining as on
3-10-2021, if any, shall become available with effect from
1-3-2022.
III In cases where the limitation would have expired during the
period between 15-3-2020 till 28-2-2022, notwithstanding the
actual balance period of limitation remaining, all persons shall
have a limitation period of 90 days from 1-3-2022. In the event
the actual balance period of limitation remaining, with effect
from 1-3-2022 is greater than 90 days, that longer period shall
apply.
IV It is further clarified that the period from 15-3-2020 till
28-2-2022 shall also stand excluded in computing the periods
prescribed under Sections 23(4) and 29-A of the Arbitration and
Conciliation Act, 1996, Section 12-A of the Commercial Courts
Act, 2015 and provisos (b) and (c) of Section 138 of the
Negotiable Instruments Act, 1881 and any other laws, which
prescribe period(s) of limitation for instituting proceedings,
Signature Not Verified
CM(M) 2462/2024 3
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:09.04.2025
18:19:00
outer limits (within which the court or tribunal can condone
delay) and termination of proceedings.”
12. Therefore, the period falling from 15.03.2020 to 28.02.2022 is liable to
be excluded.
13. It seems that the abovesaid point was not appropriately conveyed by
the defendant before the learned Trial Court. It will be, therefore, in the
fitness of the things if learned Trial Court considers the abovesaid application
afresh while keeping the abovesaid aspect in mind.
14. Learned counsel for the defendant/petitioner submits that he would
make appropriate submissions in this regard before the learned Trial Court on
the next date, which is stated to be 21.04.2025.
15. In view of the above, without making any observation on the merits of
the rival contentions, the present petition is disposed of with request to
learned Trial Court to consider the abovesaid application moved under Order
IX Rule 7 CPC afresh after giving consideration to the directions contained in
In Re: Cognizance for Extension of Limitation, 2022 SCC OnLine SC 27.
16. Since the next date before learned Trial Court is stated to be
21.04.2025, learned Trial Court shall consider the abovesaid aspect and shall
pass appropriate order, after hearing both the sides, in accordance with law.
17. Needless to say, in view of the abovesaid, the subsequent order dated
08.01.2024 is also set aside.
18. The petition, along with pending applications, is disposed of.
(MANOJ JAIN)
JUDGE
APRIL 8, 2025/st/pb
Signature Not Verified
CM(M) 2462/2024 4
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:09.04.2025
18:19:00