Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision: 7 November, 2024
+ FAO(OS) 69/2023 & CM APPL. 28603/2023
AMIT TARA & ORS. .....Appellants
Through: Mr. Rajat Aneja & Mr. Aditya Sharma
Advs. (M- 9999043058)
versus
DEEPAK TARA & ORS. .....Respondents
Through: Respondent No.1 through VC.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed challenging the impugned order dated
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13 April, 2023 passed by the learned Single Judge in CS(OS) 73/2019 titled
Sh. Deepak Tara v. Sh. Baij Nath Tara & Ors. , by which the Chamber
Appeal ( O.A. 150/2019 ) of the Appellant was dismissed. The said Chamber
Appeal was filed challenging the Joint Registrar’s order dated 17th July, 2019
striking off the written statement of the Appellants in the suit.
3. The Plaintiff in CS(OS) 73/2019 i.e. , Shri Deepak Tara, a resident of
Sweden filed a suit for declaration, partition and injunction in respect of a 200
sq. yard’s plot bearing no. A-23, Nizamuddin East, New Delhi. The owner of
the said plot is stated to be late Shri Dwarka Nath Tara, the father of the
Plaintiff in the suit. The Defendants in the said suit are the brothers of the
Plaintiff - Deepak Tara i.e. , Shri Baij Nath Tara, Shri Ashok Kumar Tara, Shri
Pradeep Tara. The sister - Smt. Shama Bengtson is also a party. The mother
of the Plaintiff- Smt. Soma Rani Tara (wife of Late Dwarka Nath Tara), who
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is now deceased was impleaded as Defendant no.6. The legal heirs of Shri
Surinder Nath Tara i.e. , Sh. Amit Tara, Mrs Alka, Mrs. Rakhi Choudhary, and
Mrs. Ruchi are also impleaded in the main suit.
4. The prayer in the suit was for declaration, preliminary decree and final
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decree of partition and as also for injunction. The suit was listed on 11
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February, 2019 and summons were issued, returnable on 3 May, 2019.
Defendants No 2(A)-Amit Tara and Defendant No. 4- Pradeep Tara appeared
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for the first time on 3 May, 2019 and the matter was listed for completion of
pleadings on 17th July, 2019. It is not in dispute that the Appellants were
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issued summons on 11 February, 2019.
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5. On 17 July, 2019, the learned Joint Registrar passed the following
order:-
“None appeared on behalf of the defendants despite repeated
calls.
Defendant No. 1, 2(a) to (d) 4 & 6 already stated to be
served. Aforesaid defendants have not filed the written
statement in the present case. Statutory period for filing the
written statement has already been expired. Accordingly,
right of the defendant no. 1, 2(a) to (d), 4 & 6 to file written
Statement stands closed .
Issue fresh summons of the suit to the remaining unserved
defendants by all modes returnable for the next date of
hearing. Steps for service be taken within a week.
At request, re-notify- the matter, for completion of pleadings
on 24.10.2019” .
As per the above order, the time period for filing of the written statement in
terms of the Delhi High Court (Original Side) Rules, 2018 (hereinafter, ‘ the
Rules ’) had expired and thus, the Joint Registrar closed the right of the
Appellants to file the written statement.
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6. The order-sheets in the suit also reflect that on various dates i.e., 3
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May, 2019; 24 September, 2019; 24 October, 2019; 9 December, 2019 -
the appearance of the Appellants was completely erratic.
7. The aforementioned order dated 17th July, 2019 was challenged by way
of a Chamber Appeal ( O.A. 150/2019 ) by the Appellants i.e. , Defendant Nos
2(a)-2(d)- Mr. Amit Tara, Ms. Alka, Ms Rakhi Tara Sachdeva, Ms. Ruchi
Tara Sagar and Defendant No. 4 -Pradeep Tara.
8. In the Chamber Appeal, there were broadly two grounds that were
taken by the Appellants. Firstly, that the dispute is between family members
and that the parties were engaged in settlement talks. The Appellants in the
Chamber Appeal claimed that they were unaware of the order dated 17th July,
2019 and only discovered it through Court inquiries after failed efforts to find
it online. Secondly, the Appellants averred that interpretation of Rules 3 and
4 of Chapter VII of the Rules would show that the time can be extended for
filing of the written statement.
9. At this stage, Respondent No.1-Deepak Tara, appearing virtually,
refutes the allegation that there were any settlement talks between the parties.
He states that there has been no talk in the last 3 years between the parties and
thus the grounds taken in the Chamber Appeal were false.
10. The said Chamber Appeal was rejected by the learned Single Judge
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vide order dated 13 April, 2023, observing that the written statement had
come to be filed after the maximum period had expired in terms of Rule 4,
Chapter VII of the Delhi High Court (Original Side) Rules, 2018. The said
Rule is extracted hereinunder:
“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
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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 .”
11. In the meantime, the constitutional validity of Rule 4 of Chapter VII of
the Rules was also challenged in the batch of matters titled Manhar
Sahbarwal v. High Court of Delhi & Ors. (2024:DHC:6406) in which the
learned Division Bench of this Court upheld the said Rules. The operative
portion of the said judgment is as under:-
“14. Section 7 of the DHC Act confers authority on the High
Court to make Rules with respect to practice and procedure
for the exercise of its original civil jurisdiction. The words
„practice and procedure‟ have a very wide connotation, and
will include the power to regulate and specify the method, by
which the court will conduct its proceedings. (See: Akash
Gupta Vs. Frankfinn Institute of Airhostess Training, 2006
SCC OnLine Del 66)
15. The position that emerges is that Rule 4 of Chapter VII
of DHC Original Side Rules, has been framed under Section
129 of the CPC and Section 7 of the DHC Act. Section 129
of the CPC empowers the High Court to regulate its own
procedure in exercise of its civil jurisdiction. Section 7 of the
DHC Act further empowers this Court to make Rules and
Orders with respect to practice and procedure for exercise
of its ordinary original civil jurisdiction. The DHC Original
Side Rules, being special law, will prevail over the CPC, and
have an overriding effect over the general provisions of the
CPC.
16. The plea raised by the petitioners regarding Rule 4,
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Chapter VII of the DHC Original Side Rules, being
discriminatory in nature, is totally misplaced. The very
distinction, between procedures of the High Court and Civil
Court, is found ingrained in Section 129 of the CPC. The
said Section recognizes special Rules for the High Court,
and thereby, itself makes a distinction between High Court
and Civil Court. When the CPC itself envisages distinction
in the practice and procedure between High Court and Civil
Court, the Rules framed thereunder, cannot be challenged
on the anvil of discrimination.
17. The High Court is within its authority and jurisdiction
to frame Rules of practice and procedure as to its original
civil procedure. The very fact that such an authority has
been conferred on the High Court, and such a provision
exists in the CPC, which confers such authority on the
High Court, envisions difference in the Rules of practice
and procedure between a High Court, and a Civil Court.
18.1 The reliance by the petitioners on the judgment in the
case of Kailash Vs. Nanhku (supra)5 , is totally misplaced.
The said judgment was in the context of interpretation of
Order VIII Rule 1 of CPC. Rule 4, Chapter VII of DHC
Original Side Rules was not a subject matter of discussion in
the said judgment. Even otherwise, Rule 4, Chapter VII of
DHC Original Side Rules itself was introduced only in the
year 2018. Consequently, in view of Section 129 of CPC, the
Original Side Rules of the High Court prevail over the
provisions of the CPC.
18.2 The position in the present case is totally different as
Section 129 of CPC, which empowers the High Court to
frame its own Original Side Rules, is a non-obstante clause
and itself excludes the operation of other provisions of the
CPC, while conferring jurisdiction on the High Court to
frame its Rules. Thus, in case of any inconsistency between
the provisions of the DHC Original Side Rules and the
provisions of the CPC, the DHC Original Side Rules shall
prevail. The judgment relied upon by the petitioners is not
applicable to the facts and circumstances of the present
cases.
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18.3 Therefore, Rule 4 Chapter VII of DHC Original Side
Rules cannot be challenged on the ground of being
contrary to the aforesaid judgment, which was delivered in
the context of Order VIII Rule 1 CPC. The amended
provisions of Order VIII Rule 1 CPC, would not apply to
the suits on the Original Side of the High Court, and such
suits would continue to be governed by the High Court
Original Side Rules.
xxx xxx xxx
21. Section 129 CPC expressly gives the power to the High
Court to make Rules, notwithstanding the provisions of the
CPC, meaning thereby, the High Court is in its authority to
frame Rules that may be contrary to other provisions of the
CPC. Therefore, relying on judicial interpretations of the
provisions of the CPC, to challenge Rule 4 Chapter VII of
DHC Original Side Rules, is totally fallacious.
22. The petitioners have not challenged Section 129 CPC,
which refers to the Rules framed by a High Court, having
overriding effect over the provisions of the CPC, in view of
the non-obstante clause contained therein. The petitioners
have also not challenged Section 7 of the DHC Act that
empowers the High Court to make Rules and Orders, with
respect to Practice and Procedure for exercise of its ordinary
original civil jurisdiction. Thus, when plenary powers of this
Court to frame the Original Side Rules, are recognized and
accepted, the petitioners have not been able to establish any
case that the exercise of such powers by this Court, and the
Rules framed thereunder, are unconstitutional in any
manner.
23. For the foregoing reasons, the present petitions are held
to be devoid of any merits. Accordingly, the same are
dismissed, along with the pending applications.”
12. Thereafter, this appeal challenging order dated 13th April, 2024
dismissing the aforesaid Chamber Appeal was listed for hearing. The present
appeal has been filed by the Appellants in the Chamber Appeal i.e. , Defendant
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Nos. 2(a)-2(d) and Defendant No. 4 in the suit.
13. Ld. Counsel for the Appellants primarily places reliance on the decision
of the ld. Single Judge in Amarendra Dhari Singh v. R.C. Nursery Pvt. Ltd.,
[CS (OS) 128/2022, decided on 09.01.2023] to argue that the Delhi High
Court Original Side Rules, 2018 are in contradistinction with the provisions
of the Commercial Courts Act, 2015. As per the Appellants, the time period
prescribed in the said Rules are not mandatory inasmuch the latter part of the
aforementioned Rule 4, uses the word ‘may’ and vests discretion with the
Registrar to close or not to close the right to file the written statement.
14. The Court has considered the matter. The language in Rule 4 of the
Rules is very clear when it uses the terminology ‘ but not thereafter ’. The said
Rule has been recently interpreted by this Court in Delhi Gymkhana Club
Limited. Vs. Col. Ashish Khanna SM Retd. & Ors. [2024:DHC7524-DB]
where the Court has clearly observed as under:-
“21. The purpose of fixing an outer time limit under
Rule 4 of Chapter VII of the DHC Original Side Rules for
filing the written statement is to ensure that the delay in filing
of written statement does not lead to further delay in
adjudication of civil suits. The validity of this Rule having
been upheld by the Division Bench in Manhar Sabharwal
(supra), the said Rule becomes mandatorily applicable to all
suits including non-commercial suits before the Delhi High
Court (Original Side). Accordingly, the Court can only
extend the period of 30 days for filing of written statement
by further 90 days, but not beyond the period of 120 days in
total in the opinion of this Court. The language of Rule 4,
Chapter VII of the Delhi High Court (Original Side) is clear
when it uses the term ‘not thereafter’ , as is seen from the text
extracted above.
22. In view of the applicable rule, the delay in filing of the
written statement in the present case would not be liable to
be condoned, and accordingly, the impugned order does not
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warrant any interference.”
15. In view of the fact that the constitutional validity of the said Rules has
now been upheld in Manhar Sahbarwal (supra) and in view of the decision
in Delhi Gymkhana Club Limited (supra) , it is settled law that the written
statement cannot be filed beyond the period of 120 days prescribed in the
DHC (Original Side) rules 2018. Clearly, in the suit, the written statement has
been filed beyond the prescribed period under the Rules.
16. Further, the discretion exercised by the Court to condone the delay in
filing of the written statement is limited to a period of 90 days after the initial
30 days’ time period prescribed under the Rules. The said discretion can be
exercised if the Court is satisfied that the Defendant was prevented by
sufficient cause for exceptional and unavoidable reasons in filing the written
statement within the period of 30 days. Moreover, the time period mandated
under the Rule 4 of the Rules cannot be extended beyond 120 days on any
ground, including on the ground that mediation/ settlement talks were on
going or pending between the parties during the relevant time for filing of
written statement. Ld. Single Judge of this Court in Harjyot Singh v.
Manpreet Kaur [2021 SCC OnLine Del 2629] , has considered the mandatory
nature of Rule 4 vis-à-vis delay in filing to written statement on the ground of
pendency of mediation or settlement talk between parties. The observations
of ld. Single Judge are reproduced hereinunder:
“ 38. Mr. Baruah's contention that the defendant could not
have been expected to file the written statement while the
parties were endeavouring to resolve the disputes amicably,
is merited. As noticed above, the same is a sufficient ground
for condoning the delay in filing the written statement. In Red
Bull AG v. Pepsico India Holdings Pvt. Ltd. (Supra); Dr.
Sukhdev Singh Gambhir v. Shri Amrit Pal Singh : (2003) 105
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DLT 184; Telefonaktiebolaget L.M. Ericsson v. Lava
International Limited : (2016) 226 DLT 342 this court had
condoned the delays on account of the time spent by the
parties in endeavouring to resolve the disputes in Mediation.
However, the time spent by the parties in Mediation cannot
be excluded from the time stipulated for filing of the written
statement or replication . As noticed above, the defendant is
required to file the written statement within a period of thirty
days from the date of receipt of summons. This Court can
condone a delay of ninety days beyond that period provided
that the defendant satisfies this Court that it was prevented
by ‘sufficient cause for exceptional and unavoidable
reason’ in filing the written statement within the period of
30 days. The fact that the parties were attempting to resolve
the disputes would be a sufficient cause to condone the delay.
However, the Court cannot condone the delay beyond the
period of ninety days as stipulated under Rule 4 of
DHC(OS) Rules. There is no provision to the aforesaid
effect . Once it has been held that the provisions of Rule 4 of
DHC(OS) Rules are mandatory and, the Court does not have
jurisdiction to condone the delay beyond a period of ninety
days as has been held by the Division Bench of this Court
in Ram Sarup Lugani (supra), the question of condoning
the delay beyond that period for any reason whatsoever is
not permissible .
39. This Court is unable to accept the contention that the
delay in filing the written statement on the part of the
defendant can be condoned.
xxx xxx xxx
46. Rule 4 of the DHC Rules is a rule of procedure and
insofar as expedient, a liberal view in condoning the delay
ought to be taken by the Court, however, that does not mean
that the said Rule can be completely ignored or should be
interpreted to render it meaningless. In the present case,
even if it is accepted that this Court has the jurisdiction to
condone the delay in filing the written statement beyond a
period of 90 days (which this court does not), there are
grounds for doing so in this case. ”
17. In view of the above, it is clear that the period for filing the written
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statement cannot be extended beyond the mandatory period of 120 days even
if parties are engaged in settlement/ mediation. Accordingly, even in the
present case, merely because alleged settlement talks were going on between
the parties, the same is not a sufficient ground to extend the period for filing
of the written statement beyond 120 days.
18. It is also the settled position in law that filing of an application under
Order VII Rule 11 CPC, would not extend the period for filing of written
statement. In fact, the settled legal position is that the written statement should
be filed irrespective of an application under Order VII Rule 11 CPC being
pending. The said position is clear as laid down in R.K. Roja v. U. S. Rayudu
& Anr. [(2016) 14 SCC 275] , where the Supreme Court held as under:
“6. Once an application is filed under Order VII Rule 11 of
the CPC, the court has to dispose of the same before
proceeding with the trial. There is no point or sense in
proceeding with the trial of the case, in case the plaint
(Election Petition in the present case) is only to be rejected
at the threshold. Therefore, the defendant is entitled to file
the application for rejection before filing his written
statement. In case, the application is rejected, the defendant
is entitled to file his written statement thereafter (See Saleem
Bhai and others v. State of Maharashtra and others2 ). But
once an application for rejection is filed, the court has to
dispose of the same before proceeding with the trial court.
To quote relevant portion from paragraph-20 of Sopan
Sukhdeo Sable case (supra):
“20. … Rule 11 of Order 7 lays down an independent
remedy made available to the defendant to challenge
the maintainability of the suit itself, irrespective of his
right to contest the same on merits. The law ostensibly
does not contemplate at any stage when the objections
can be raised, and also does not say in express terms
about the filing of a written statement. Instead, the
word “shall” is used, clearly implying thereby that it
casts a duty on the court to perform its obligations in
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rejecting the plaint when the same is hit by any of the
infirmities provided in the four clauses of Rule 11,
even without intervention of the defendant. …”
7. In Saleem Bhai case (supra), this Court has also held that
… “A direction to file the written statement without deciding
the application under Order VII Rule 11 cannot but be a
procedural irregularity touching the exercise of jurisdiction
of the trial court.” However, we may hasten to add that the
liberty to file an application for rejection under Order VII
Rule 11 of the CPC cannot be made as a ruse for retrieving
the lost opportunity to file the written statement” .
19. In the present case, the said position also would not assist the Appellant
as the application under Order VII Rule 11 CPC was filed after the time period
for written statement was exhausted. Accordingly, the plea based on the
pendency of the application under Order VII Rule 11 CPC or the alleged on-
going settlement talks, by the Appellant, for seeking condonation of delay in
filing of the written statement beyond the mandatory period prescribed under
the Rules, is not tenable.
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20. In view of the above, the impugned order dated 13 April 2024 does
not warrant any interference.
21. The appeal is, accordingly, dismissed. Pending applications, if any, are
also disposed of.
22. The suit shall now proceed before the ld. Single Judge.
PRATHIBA M. SINGH, J.
AMIT SHARMA, J.
NOVEMBER 7, 2024/ Nk/bh
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(Corrected and released on 14 November 2024)
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