Delhi High Court
Vinod Kumar Kad And Ors vs Girish Kumar Kad And Ors on 9 February, 2021
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 09.02.2021
+ FAO(OS) 60/2020 & C.M. No. 29846/2020
VINOD KUMAR KAD AND ORS ..... Appellants
Through: Mr. Anand Nandan, Adv.
versus
GIRISH KUMAR KAD AND ORS ..... Respondents
Through: Mr. Lalit Gupta, Adv. for R- 2 to 5.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present appeal under Section 10 of the Delhi High Court Act
1966, assails the order dated 03.09.2020 passed in I.A. No. 7670/2020 in CS
(OS) 636/2019 by the learned Single Judge condoning the delayed filing of
the written statement by the respondent nos.2 to 5/defendants. The
appellants, who filed the suit in question, have also assailed the subsequent
order dated 20.10.2020 passed by the learned Single Judge rejecting their
prayer for review of the order dated 03.09.2020.
2. The appellants preferred a suit for declaration, permanent injunction
and partition in respect of the property bearing no. B-27, Satyawati Colony,
Ashok Vihar, Phase-III, Delhi 110052. The suit came to be listed before the
learned Single Judge on 05.02.2020, on which date the Court, while issuing
summons in the suit and notice in the applications, directed the defendants to
file the written statement within a period of 30 days. On 13.03.2020, in view
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Signed By:GARIMA MADAN
Signing Date:11.02.2021
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of COVID-19 pandemic gripping the world, the Court issued a notification
suspending its regular functioning w.e.f. 16.03.2020.
3. It turns out, the respondents failed to file the written statement either
within the 30 day-period granted by the Court or within the period of 90
days provided under Order VIII Rule 1 of the Code of Civil Procedure,
1908. The written statement was filed only on 31.08.2020 alongwith an
application under Section 5 of the Limitation Act, 1963 seeking condonation
of delay in filing the written statement, primarily on the ground that the said
delay had been occasioned on account of the respondents' inability to visit
their counsel for drafting and filing the written statement on account of the
COVID-19 pandemic. The said application has been allowed by learned
Single Judge under the impugned order dated 03.09.2020, whereafter the
appellant's application seeking review thereof was also rejected on
20.10.2020.
4. The present appeal has been filed primarily on the ground that even
though regular functioning of this Court had been suspended with effect
from 16.03.2020, an office order permitting mentioning of matters on
designated links to request a hearing through video conferencing was issued
on 22.04.2020, followed by an office order dated 08.05.2020 which
permitted online filing of all kinds of pleading. It has, therefore, been
contended that there is no reason as to why the respondents did not file their
written statement through online mode, within the time granted to them.
5. Learned counsel for the appellant submits that the respondents nos. 2-
5 had ample opportunities to file the written statement on time and,
therefore, the learned Single Judge erred in condoning the delay in filing the
written statement, especially when it was beyond the maximum permissible
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Signed By:GARIMA MADAN
Signing Date:11.02.2021
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period of 120 days under the Delhi High Court (Original side) Rules 2018.
6. We are unable to find any merit in the submission of learned counsel
for the appellant. It is an admitted position that the time within which the
respondents could file their written statement in terms of the 2018 Rules
expired during the period when the pandemic had already set in and, as a
consequence, regular functioning of Courts across the country, including the
Apex Court as also this Court, stood suspended. In response to this situation,
the Supreme Court took suo moto cognisance of the problems faced by
litigants across the country, in filing pleadings within the period of
limitation and, consequently, on 23.03.2020 passed the following order in
SMW (C) No. 3/2020 titled In Re: Cognizance for Extension of Limitation:
"This Court has taken Suo Motu cognizance of the
situation arising out of the challenge faced by the country on
account of Covid-19 Virus and resultant difficulties that may be
faced by litigants across the country in filing their
petitions/applications/suits/ appeals/all other proceedings
within the period of limitation prescribed under the general law
of limitation or under Special Laws (both Central and/or State).
To obviate such difficulties and to ensure that lawyers/litigants
do not have to come physically to file such proceedings in
respective Courts/Tribunals across the country including this
Court, it is hereby ordered that a period of limitation in all such
proceedings, irrespective of the limitation prescribed under the
general law or Special Laws whether condonable or not shall
stand extended w.e.f. 15th March 2020 till further order/s to be
passed by this Court in present proceedings. We are exercising
this power under Article 142 read with Article 141 of the
Constitution of India and declare that this order is a binding
order within the meaning of Article 141 on all Courts/Tribunals
and authorities. This order may be brought to the notice of all
High Courts for being communicated to all subordinate
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Signed By:GARIMA MADAN
Signing Date:11.02.2021
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Courts/Tribunals within their respective jurisdiction.
Issue notice to all the Registrars General of the High
Courts, returnable in four weeks."
7. When the Apex Court has clearly passed directions to accommodate
difficulties encountered by litigants in filing pleadings on time, and the spirit
of the reasoning in the impugned order is in line with the course set by the
Supreme Court, we are of the opinion that the learned Single Judge was
absolutely justified in condoning the delay in filing written statement. In
fact, this order passed by the Supreme Court extending the period of
limitation is continuing even as on date, for which purpose we may refer to a
recent order passed by the Supreme Court on 17.12.2020 in C.A. NO.
4085/2020 titled M/s SS Group Pvt Ltd Vs. Aaditiya J. Garg & Anr.
"The above order is still operative and by subsequent
orders, the scope has been enlarged so that the said order
applies in other proceedings also. In the present matter, it is an
admitted fact that the period of limitation of 30 days to file the
written statement had expired on 12.08.2020 and the extended
period of 15 days expired on 27.08.2020. This period expired
when the order dated 23.03.2020 passed by this Court in
SMW(C) No.3 of 2020 was continuing. In view of the aforesaid,
in our opinion, the limitation for filing the written statement in
the present proceedings before the National Commission would
be deemed to have been extended as it is clear from the order
dated 23.03.2020 that the extended period of limitation was
applicable to all petitions/ applications/suits/appeals and all
other proceedings. As such, the delay of four days in filing the
written statements in the pending proceedings before the
National Commission deserves to be allowed, and is
accordingly allowed.
In the circumstances, we allow these appeals, set aside
the order passed by the National Commission and direct that (i)
the written statement filed by the appellant shall be taken on
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Signed By:GARIMA MADAN
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record; and, (ii) the matter shall thereafter be proceeded with
expeditiously and in accordance with law."
8. We are also unable to agree with the learned counsel for the appellant
that merely because online filing was permitted by this Court with effect
from 08.05.2020-or even from 22.04.2020, COVID-19 pandemic stopped
hampering regular filings. We cannot lose sight of the fact that in most
cases, when it comes down to filing written statements, the defendant often
has to visit his counsel personally at his office to give appropriate
instructions for preparation thereof.; unfortunately, this has not been
possible for many litigants in the last one year owing to lockdown as well as
the social distancing practices imposed on account of the pandemic. We,
therefore, see no reason to disregard the respondent's version that the
written statement could not be filed within the time granted by the Court,
since the respondents could not visit the office of their counsel, especially
between March-July 2020, when the pandemic had just set in. In fact, even
as on date, social distancing is the norm and, notwithstanding partial
resumption of physical hearing at the Court, many counsel are still entering
appearance virtually. On that note, we may observe that even though we are
holding physical court today for which learned counsel for the respondent is
present in Court, learned counsel for the appellant has chosen to join the
proceedings only through video conferencing. He has duly been
accommodated in this manner by us, through hybrid mode hearing. When
such an accommodation-on the ground of the pandemic, is being granted to
the learned counsel for the appellant, there is absolutely no reason as to why
the respondents should be deprived of a similar accommodation, especially
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Signed By:GARIMA MADAN
Signing Date:11.02.2021
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since there are orders of the Supreme Court in this regard.
9. We, thus, see no reason to interfere with the impugned orders. The
appeal is dismissed with costs of Rs. 10,000/- payable to the Delhi High
Court Legal Services Authority within four weeks.
REKHA PALLI, J
VIPIN SANGHI, J
FEBRUARY 9, 2021/kk
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:11.02.2021
19:54:41
