Delhi High Court
Delhi Gymkhana Club Limited vs Col Ashish Khanna Sm Retd & Ors. on 27 September, 2024
Author: Prathiba M. Singh
Bench: Prathiba M. Singh, Amit Sharma
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:-27th September, 2024.
+ FAO(OS) 102/2023 & CM APPL. 49218/2023
DELHI GYMKHANA CLUB LIMITED .....Appellant
Through: Mr Prateek Kumar, Ms Raveena Rai,
Ms Moha Paranjpe, Advocates (M-91
8369757825)
versus
COL ASHISH KHANNA SM RETD & ORS. .....Respondents
Through: Mr. C. Arayama Sundaram, Sr. Adv.
with Mr. Sanyam Khetrapal, Mr.
Nitesh Goyal, Mr. Zaffar, Ms. Prakriti
Anand, Ms. Lisa Sankrit & Ms. Arya
Suresh, Advs. for R-1.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
2. Ld. Counsels for the parties submit that have no objection to this Bench
hearing this matter. Further, no issue of maintainability of the instant appeal
has been raised by the Respondents.
3. This is an appeal filed by the Appellant- Delhi Gymkhana Club Limited
under Order XLIII Rule 1 of Code of Civil Procedure, 1908 read with Section
10 of Delhi High Court Act, 1966 challenging the impugned order dated 21st
August, 2023 (as corrected and modified vide order dated 5th September,
2023) passed by the ld. Single Judge dismissing the Chamber Appeal being
O.A. No. 37/2022. The said Chamber Appeal was filed assailing order dated
1st September, 2022 passed by the ld. Joint Registrar in CS(OS) No.
171/2022, whereby the right of the Appellant/Defendant No. 1 to file the
written statement in the suit has been closed.
4. The present appeal arises out of a suit being CS(OS) 171/2022 filed by
the Respondent/Plaintiff- Col. Ashish Khanna, SM (retd.), who is stated to be
the former Secretary of the Delhi Gymkhana Club Limited. In the said suit,
the club was Defendant No.1 and the erstwhile management was arrayed as
Defendant Nos. 2 to 6.
5. Summons were issued in the said suit vide order dated 25th March,
2022. On the said date, the Appellant Club was duly represented by a Counsel
appearing on advance service, and he accepted summons on behalf of the
Appellant Club. The relevant paragraphs of the said order are set out below:
"8. Issue summons to the defendants, returnable
31st May 2022.
9. Mr. Namit Saxena, Advocate for defendant No.
1/Delhi Gymkhana Club Pvt. Ltd., appears on
advance copy; accepts summons; and seeks leave
to file written statement.
10. Upon the plaintiff taking steps within 10 days,
let summons be issued to defendants Nos. 2 to 6 by
all permissible modes. Let the summons indicate
that the defendants are required to file written
statement/s within 30 days from the receipt of
summons, alongwith affidavit/s of admission/denial
of documents filed by the plaintiff; the plaintiff may
file replication to the written statement within 30
days thereafter, alongwith affidavit of
admission/denial of the documents filed by
defendants, with copy to the opposing counsel.
11. List before the learned Joint Registrar for
completion of pleadings, for admission/denial of
documents and marking of exhibits on 04th May
2022.
12. List before court on 31st May 2022."
6. On 04th May, 2022 the matter was listed before the ld. Joint Registrar
for completion of pleadings, however, none appeared on behalf of the
Appellant Club. The remaining Defendant Nos. 2 to 6 were duly represented
on the said date, and sought time for filing their respective written statements.
The relevant portion of the said order of ld. Joint Registrar is reproduced
under:
"Defendant nos.2 to 5 stands served by way of e-mail.
Service report qua defendant no.6 is awaited.
Counsels have appeared on behalf of defendant nos.2 to
6 and sought time to file written statement along with
reply to interim application under Order XXXIX Rule 1
and 2 CPC. Let the same be filed within stipulated time
period in accordance with law. Thereafter, plaintiff is at
liberty to file replication/rejoinder without prejudice to his
right to contest delay in filing written statement, if any."
7. The Appellant Club, however, did not file its written statement by the
next date of hearing before the ld. Single Judge i.e., 31st May, 2022. On the
said date a new Counsel appeared for the Appellant Club and the Court
noticed that pleadings in the suit were yet to be completed. Further, in the
meantime, the Court directed the new 'General Committee' of the Appellant
Club, as constituted by the National Company Law Tribunal, New Delhi vide
order dated 1st April, 2022 in Company Petition 71/241-241/PB/2020 titled
Union of India v. Delhi Gymkhana Club Limited & Ors., to consider the
representation of the Respondent/Plaintiff in respect of the grievances raised
in the concerned suit. It was also directed that the said representation shall be
decided within two months from the date of submission of the same by the
Respondent/Plaintiff. The said order of the ld. Single Judge dated 31st May,
2022 is relevant and is set out below:
"CS(OS) 171/2022 and I.A. 4679/2022 (Order 39
Rules 1 & 2 CPC)
Mr. Snehal Kakrania, learned counsel appears for
defendant No.l/Delhi Gymkhana Club Ltd ('Club')
and submits that in compliance of last order dated
01.04.2022 made by the National Company Law
Tribunal, Principal Bench, New Delhi, the Central
Government has nominated 15 persons as Directors
of the General Committee to manage the affairs of
the Club in accordance with its Memorandum and
Articles of Association. Counsel submits that all 15
members of such General Committee are however
yet to take charge.
2. Pleadings in the suit and in the interim
application are yet to be completed.
3. Accordingly, list before the learned Joint
Registrar on 12th July 2022, the date already fixed
for the aforesaid purpose.
4. In the meantime, as requested by the
plaintiff, upon the plaintiff making a fresh
representation relating to the grievances raised in
the present suit, before the new General
Committee of the Club, the new General
Committee shall consider and decide the
representation within 02 months from the date of
submission. The decision of the General Committee
shall be communicated in writing to the plaintiff;
who shall place the same before this court, before
the next date of hearing.
5. List before court on 7th September 2022."
8. On 12th July, 2022, the ld. Joint Registrar recorded that there was no
written statement filed by the Defendant No.1/Appellant Club. The said order
reads as under:
"[...]
CS(OS) 171/2022
Written statement e-filed on behalf of D-2 returned
under objections. However, documents and V/Nama on
behalf of D-2 are on record. Counsel for defendant no.
2 to remove the objections and get the same placed on
record in accordance with law. Replication to w.s and
A/D affidavit of documents qua D-2 e-filed on behalf of
Plaintiff. Written Statement and affidavit of
admission/denial of documents e-filed on behalf of D-3
and D-4. Replication be filed in accordance with law.
No written statement filed by D-1, D-5 and D-6.
Put up for completion of pleadings on 01.09.2022"
9. It is stated that the written statement on behalf of Appellant Club finally
came to be filed on 24th August, 2022 along with the affidavit of admission
and denial. It is also stated that the said written statement was accompanied
with an application for condonation of delay of 120 days in filing of the
written statement. However, again on 1st September, 2022, it was recorded
by the ld. Joint Registrar that the written statement on behalf of Appellant
Club was not on record and appeared to be under scrutiny, although the list of
documents filed was on record. Vide the said order, considering the
application filed on behalf of Respondent/Plaintiff under Order VIII Rule 1
and 10 of CPC, the ld. Joint Registrar closed the right of the Appellant Club
to file written statement and bring the same on record. The relevant portion of
the order dated 1st September, 2022 is set out below:
"[...]
IA No.14014/2022(U/O VIII Rule 1 and 10 CPC
filed by plaintiff to strike off the defence of the D-
1)
Written statement of D-1 is not on record.
However, list of document filed by D-1.
Learned counsel for plaintiff submits that he has not
received the written statement from D1 so far. He
further submits that D1 had appeared on advance
notice on 25.03.2022 and sought time to file the
written statement. Learned counsel for plaintiff
further submits that statutory period to file the
written statement is already over.
On the other hand, learned counsel for D1 submits
that this is not a Commercial Suit and therefore,
period of 120 days is not mandatory and only
directory. Learned counsel for D1 further submits
that she has already filed the written statement
alongwith condonation application in the registry
vide diary No. 1424131/2022 dated 24.08.2022 and
therefore, she be given an opportunity to place the
same on record.
I have heard the submissions of learned counsel for
parties and have perused the record carefully.
The period of 30 days from the date of service of
defendant No.1 and 90 days thereafter, as a
discretionary period to file the written statement is
already over. Learned counsel for D1 has stated
that she has filed the written statement alongwith
condonation application on 24.08.2022 which in
itself has been filed after lapse of 120 days. The
said written statement has not come on record till
date and appears to be under scrutiny. Defendant
No.1 cannot be granted indefinite time to clear the
objections.
As far as the contentions of learned counsel for D1
with respect to the suit being not a Commercial one
is concerned, the attention of learned counsel for
D1 is drawn towards Rule 4 of Chapter VII of Delhi
High Court (Original Side) Rules, 2018 which are
applicable to the Original Civil Jurisdiction. The
said rule is reproduced hereinunder for the purpose
of convenience:-
"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."
This Rule clearly provides the total period of 120
days for filing the written statement. It would not be
out of place to mention here that the statutory
period for filing the same is only 30 days and after
that the defendant has to show that he/she was
prevented by sufficient cause for exceptional and
unavoidable reasons and only on being convinced,
the time can be extended to further 90 days.
It is pertinent to mention here that no application
for enlargement of time or condonation of delay
citing the reasons for not filing the written
statement on time is listed before me. So at this
stage, no grounds for giving further opportunity to
the defendant No.1 to place the written statement
on record are made out.
I do not find any merits in the submissions made
by learned counsel for D-1. Hence, right to file the
written statement on behalf of D-1 stands closed.
As a consequence thereof, the instant application
filed by plaintiff stands disposed off accordingly."
10. The aforesaid order of the ld. Joint Registrar was challenged by the
Appellant Club through the Chamber Appeal being O.A. No. 37/2022. In the
said Chamber Appeal, notice was issued on 16th September, 2022, and the
same was finally dismissed by the ld. Single Judge vide impugned order dated
21st August, 2023. The rationale of the ld. Single Judge for dismissing the
said Chamber Appeal is that the filing of written statement in the instant case
would be governed by the Rule 4, Chapter VII of Delhi High Court (Original
Side) Rules, 2018 (hereinafter 'DHC Original Side Rules'). The ld. Single
Judge passed a detailed judgment, whereby it is held that the written statement
having been filed by the Appellant Club beyond the stipulated period of 120
days in a non-commercial suit as per the aforesaid Rule, the ld. Joint
Registrar's order closing the right of the Appellant Club to file written
submissions is in accordance with law as also the various judgments of the
Division Benches of this Court. The observations of the Ld. Single Judge are
set out below:
12. Admittedly, the present case is a non-commercial
suit. Rule 1 Order VIII CPC deals with the time
period for filing of written statement. It prescribes
that defendant shall file written statement within 30
days from the date of service of summons on him.
Proviso to the said Rule prescribes that in case the
defendant fails to file written statement within the
stipulated period of 30 days, the Court is empowered
to allow the same to be filed upto a maximum further
period of 90 days, subject to reasons being recorded
in writing. The second proviso relates to a commercial
suit only. Chapter VII of the DHC Rules, which came
into force on 01.03.2018, deals with the procedure for
appearance by defendant, written statement, set off,
counterclaim and replication. Rule 4 specially vests
power with the Court to extend time for filing written
statement. It provides that, in case written statement
is not filed within 30 days, subject to defendant
satisfying the Court that there was sufficient cause
i.e., that he was prevented from filing the same due to
some exceptional or unavoidable reason, the Court
may extend the time by a further period not exceeding
90 days, but not thereafter. The Rule additionally
provides that the defendant be burdened with
appropriate cost, and only upon the payment of such
cost, would the written statement be taken on record.
Another departure from Rule 1 Order VIII is the use
of expression 'but not thereafter', to which I would
advert later.
13. The controversy raised as to whether filing of the
written statement and condonation of delay in filing
the same, would be governed by Order VIII Rule 1
CPC or Rule 4 of the DHC Rules has surfaced in many
cases.
14. In Kailash (Supra), Supreme Court, while
considering the object and purpose behind enacting
Rule 1 of Order VIII, opined that the provision is to be
construed as directory and not mandatory, and at the
same time it was cautioned that only in exceptional
cases, the Court may extend the time for filing written
statement, though the period of 30 days and 90 days
had expired. Again in R.N. Jadi & Brothers & Ors v.
Subhashchandra11, Supreme Court, while referring to
its earlier decision in Kailash (Supra), held that
extension of time beyond 90 days was not automatic
and satisfaction of the Court has to be recorded, as to
the existence of sufficient justification, for departing
from the time limit fixed by the Court. The Court again
cautioned that the decision in Kailash (Supra) should
not be considered as an authority for receiving written
statement after the expiry of period permitted by the
law, in a routine manner. The decision in Kailash
(Supra) was again referred to by the Supreme Court in
Bharat Kalra (Supra), while condoning a delay of 193
days in filing of the written statement.
15. Recently, in Desh Raj (Supra), a decision rendered
by a three Judge Bench, the provision again came up
for consideration before the Supreme Court. The
defendant had failed to file the written statement within
the period of 120 days of notice, resulting in closure of
opportunity to file the same and his defence being
struck off. While considering the effect of Commercial
Courts Act, 2015, it was held that after the coming into
force of the said Act, two regimes of civil procedure
came into existence. While commercial disputes, as
defined under Section 2(c) of the Commercial Courts
Act, were governed by Section 16 of the said Act, all
other noncommercial disputes fell within the ambit of
the unamended (or original) provisions of CPC. It was
held that the unamended Order VIII Rule 1 CPC would
continue to be directory, and thus would not come in
the way of inherent jurisdiction of the Court, to
condone certain delays. Notably, in this case, the effect
of Rule 4 and 5 of the DHC Rules was not the matter
for court's consideration.
16. The interpretation of Order VIII Rule 1 CPC vis-à-
vis Rule 4 and 5 of the DHC Rules first came up before
this Court in Gautam Gambhir & Ors. v. Jai Ambey
Traders & Ors.12 and Ram Swarup Lugani (Supra),
wherein the Court dealt with a Chamber Appeal
against an order of Joint Registrar rejecting the
application for condonation of delay. The Court taking
note of the fact that the DHC Rules came into effect in
2018 i.e., after the Commercial Courts Act was
notified, opined that use of expression 'but not
thereafter' in Rule 4 would mean that a total 120 days
(30 + 90) was granted for filing written statement.
Further, both Rules 4 and 5 were held to be
mandatory.
[...]
18. Rule 4 of the DHC Rules came up for interpretation
in a noncommercial suit before a Single Judge of this
Court in Amrendra Dhari (Supra). The court drew a
distinction between the discretionary powers of
condonation of delay envisaged under Rule 4 and Rule
5 for filing of the written statement and replication,
respectively. Court was of the considered view that the
construct of the two Rules has different outcomes, even
though textually they are perceived to be the same
merely because of the use of the expression "not
thereafter" in the two Rules. The court held that (not
necessarily in the same words) while Rule 5
circumscribes the courts discretion to 45 days -and not
a day beyond- in permitting the filing of replication, no
such hard stop date is envisaged to apply to Rule 4, as
far as written statements filed beyond 120 days are
concerned. The court found a nuanced distinction in the
two Rules, because of the use of words "may" in Rule 4
and "shall" in Rule 5, the Court was of the view that
"may" signifies existence of discretion unlike "shall"
used in Rule 5. The court was also persuaded by the
dictum of law that a party should not be condemned
unheard. Closing the right to file written statement was
considered to be a serious consequence that could not
be undermined due to a procedural breach.
19. The ruling in Amrendra Dhari (Supra) was
scrutinised in Charu Agrawal v. Alok Kalia & Ors.15,
wherein another Division Bench of this Court examined
the width of Rule 4. While traversing the entire case law
on the subject and agreeing with the conclusion in
earlier decisions of the Division Bench including that in
Ram Swarup Lugani (Supra) and Harjyot Singh
(Supra), it was held as under :-
"35. It must with due respect be observed that
neither Order VIII as originally standing in
the Code nor its provisions as adopted by the
2015 Act employ the phase "but not
thereafter". The said expression stands
enshrined in both Rules 4 and 5 of 2018
Rules. It was the adoption of the aforesaid
phrase which was understood by the Division
Bench in Ram Sarup Lugani to be of critical
and vital significance. The Court is further
constrained to observe that once the Division
Bench had on an extensive review of Rule 5
come to conclude that the usage of the
expression was indicative of a terminal point
having been constructed, it would have been
impermissible to take a contrary view. Ram
Sarup Lugani had tested the provisions of
Rule 5 based on a textual interpretation, the
adoption of a special period of limitation, the
recognition of the Order VIII principles not
being applicable and even the inherent power
not being liable to be invoked in light of the
emphatic language of the provision itself.
Ram Sarup Lugani had also noticed the
earlier Division Bench judgments in DDA vs
K.R. Builders Pvt Ltd. , HTIL Corporation
B.V vs Ajay Kohli as well as in Print Pak
Machinery Ltd. v. Jay Kay Papers Converters
. all of which
had consistently upheld and recognised the
primacy of the
Rules over the provisions of the Code. The
Court in Ram Sarup Lugani had also duly
noticed the judgment of the Supreme Court in
Desh Raj. The former decision thus
constituted a binding precedent on the scope
of the Rules, the mandatory nature of the
timelines prescribed thereunder and that
neither Order VIII nor the inherent powers of
the Court being liable to be invoked to extend
the period of limitation as stipulated in Rule
36. While the aforesaid discussion would
have been sufficient to lay the controversy at
rest, since Amarendra Dhari Singh also
proceeds on a perceived distinction between
Rules 4 and 5, the Court deems it apposite to
observe as follows. As was noticed in the
preceding parts of this decision, both Rules
employ the phrase "but not thereafter". Both
the phrases "not exceeding" and "but not
thereafter" must clearly be accorded due
weight and consideration. This was an aspect
which was duly noticed in Ram Sarup Lugani.
37. Regard must also be had to the fact that
while the penultimate part of Rule 4 is not
replicated in Rule 5, that too would be of little
significance when one holistically reads Rule
4. It becomes pertinent to note that the
obligation to file a written statement in 30
days is originally placed by Rule 2 falling in
Chapter VII. Rule 4 deals with the extension
of time for filing a written statement. As is
manifest from a plain reading of that
provision, it confers a power on the Court to
condone the delay that may have been caused
and a written statement having not being filed
within 30 days if it be satisfied that the
Defendant was prevented by sufficient cause
and for exceptional and unavoidable reasons
to file the same within the prescribed period.
Rule 4 then and upon such satisfaction being
arrived at empowers the Court to extend the
time for filing a written statement by a further
period not exceeding 90 days but not
thereafter.
38. The penultimate part of Rule 4 talks of the
power of the Registrar to close the right of a
Defendant to file a written statement if it be
found that the same has not been tendered
within the extended time. The use of the
phrase "extended time" cannot possibly run
beyond the maximum period of 120 days. In
any case, the said provision as made in Rule
4 cannot possibly be countenanced or
interpreted to recognise the Registrar being
empowered to additionally extend time
beyond the period of 120 days. The reliance
which has been placed on various decisions
noticed above and delivered in the context of
Order VIII as found in the Code would have
to be duly understood bearing in mind what
had been held by the earlier Division Benches
of our Court in K.R. Builders Pvt Ltd, HTIL
Corporation as well as in Print Pak. The said
judgments had consistently held that the
Rules as adopted by the Court would clearly
prevail over and above those which may find
place in the Code. All the four decisions
noticed above, had been rendered prior in
point of time to Esha Gupta and had neither
been noticed nor considered in the said
judgment. Ram Sarup Lugani while relying on
the aforenoted decisions, had drawn
sustenance from those decisions in support of
its ultimate conclusion that Order VIII and
the principles underlying the same would not
apply to Rule 5.
39. The Court also deems it necessary to
observe that the Rules directly fell for
consideration of the Division Bench in Ram
Sarup Lugani as well as the learned Judges
who authored Gautam Gambhir and Harjyot
Singh. The facial distinction between Rules 4
and 5 which appears to have weighed with the
Court in Amarendra Dhari Singh would, in
any case, not justify taking a contrary view.
The Court notes that both Gautam Gambhir
and Harjyot Singh were decisions rendered
directly in the context of Rules 4 and 5 as
enshrined in Chapter VII. This Court thus
finds itself unable to accord an interpretation
upon Rule 4 or 5 which would run contrary to
what had been held in the earlier decisions
and which necessarily bind this Court.
40. In conclusion, this Court is of the
considered opinion that Gautam Gambhir,
Ram Sarup Lugani and Harjyot Singh are
binding precedents on the scope of Rules 4
and 5 as falling in Chapter VII of the Rules.
The mere fact that the argument of a
perceived discretion vesting in the Registrar
in Rule 4 was not specifically raised or
addressed would not justify the judgment of
the Division Bench being either ignored or
doubted. The Court has already noticed the
issues that arise out of the judgment of the
Division Bench in Esha Gupta. The earlier
decisions of the Division Benches of the Court
in K.R. Builders, HTIL Corporation, and
Print Pak do not appear to have been cited for
the consideration of the Bench. Ram Sarup
Lugani was a judgment which came to be
rendered upon an exhaustive analysis of the
earlier precedents rendered in the context of
the Rules and the Code, the peremptory
language in which Rule 5 stood couched, of
how the creation of a special rule relating to
limitation would exclude the permissibility of
condonation or extensions being granted.
While the order of the Division Bench in
Tushar Bansal was based on a concession
that was made, the judgment in Jamaluddin
came to be pronounced with neither side
having drawn the attention of the Court to the
decision in Ram Sarup Lugani. The said
decision proceeded on the principles which
underlie Order VIII of the Code and the
judgments of the Supreme Court in Kailash
and Bharat Kalra rendered in the context of
that provision. The Court notes that the
adoption of Order VIII principles already
stood negated by the earlier Division Benches
in K.R. Builders, HTIL Corporation, Ajay
Kohli and Print Pak. Those decisions too do
not appear to have been cited for the
consideration of the Court in Jamaluddin."
20. In Charu (Supra), the Division Bench has very
emphatically held the inviolability of the hard stop
period of 120 days prescribed in Rule 4 for filing the
written statement. Court re-stated the principles laid
down in Gautam Gambhir (Supra) and Harjyot Singh
(Supra), and declared that they act as binding
precedents on the issue.
As of now, Charu (Supra) has laid to rest the debate on
the ability of courts to condone delay in filing of
written statement beyond 120 days in a noncommercial
suit. Rule 4 circumscribes the power of court to
condone the delay beyond the maximum permissible
time of 120 days.
21. Resultantly, this Court has no hesitation in holding
that that the decision of Registrar is in conformity with
the law as it stands and the exhaustive decisions of
Division Benches of this Court.
22. The chamber appeal merits dismissal and is
accordingly rejected."
11. In this appeal the aforesaid order passed the ld. Single Judge has been
challenged.
12. The present appeal was initially heard along with a writ petition viz.,
Manhar Sahbarwal v. High Court of Delhi & Ors. (2024:DHC:6406)
wherein the constitutional validity of Rule 4, Chapter VII of DHC Original
Side Rules was challenged. The said Rule is reproduced hereunder:
"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.
13. The validity of the said rule has been upheld by the Co-ordinate Bench
of this Court vide judgment dated 23rd August, 2024 in Manhar Sahbarwal
(supra). 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, 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.
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.
19. Reliance by the petitioners on the judgment in the
case of Raj Kumar Yadav (supra)6 , to contend that
statutory period of limitation cannot be taken away by
the Rules framed by the High Court governing its
procedure, is again, misconceived. The said judgment
was rendered in an Election Petition, wherein, the High
Court Rules in the said case stipulated that an Election
Petition could be filed only in the open court. In the said
case, the Election Petition was presented ten minutes
after the Judge had retired to his chamber. The
Representation of People Act, 1951 stipulated limitation
under Section 81 of the said Act, to expire on the 45th
day from the date of election. The word "day‟ was
interpreted to cover a period of twenty four hours, to
include period till midnight. It was in this context that it
was held that the limitation period would continue till
midnight of the last day, and non-acceptance of the
Election Petition on the ground of its presentation after
the Judge had risen for the day, was rejected.
20. Similarly the judgments in the cases of Salem
Advocate Bar Association (supra)7 and Sambhaji
(supra)8 , are not applicable to the present cases, as the
said judgments were dealing with Order VIII Rule 1 of
CPC. As discussed in the preceding paragraphs, the
operation of the said provision to Original Side of this
Court, stands excluded and the DHC Original Side
Rules, shall operate to govern the practice and
procedure of the Original Side of this Court.
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."
14. Coming to the facts of this particular case, Rule 4, Chapter VII of the
DHC Original Side Rules would be clearly applicable for deciding the instant
Appeal.
15. Mr. Prateek Kumar, ld. Counsel appearing on behalf of the Appellant
Club submits that the said Club was placed in an extraordinary situation,
whereby after summons were issued by the Court on 25th March, 2022 in the
concerned suit. The NCLT, Delhi took note of various irregularities in the
functioning of the said Club in Company Petition 71/241-241/PB/2020 titled
Union of India v. Delhi Gymkhana Club Limited & Ors. Thereafter, vide
order dated 1st April, 2022, the NCLT, Delhi permitted the Central
Government to nominate 15 persons as Directors on the General Committee
of the Appellant Club to manage its daily affairs.
16. It is submitted that after the new Directors took charge of the Appellant
Club, a new Counsel was engaged to appear before the ld. Single Judge in the
concerned suit on the next date of hearing i.e., 31st May, 2022. It is further
submitted that for the first time the new management was represented before
the Court in the concerned suit only on 31st May, 2022.
17. Considering the above, it is argued by the ld. Counsel for the Appellant
Club that the time between the date of issuance of summons i.e., 25th March,
2022, and the date of first appearance on behalf of the new management in
the concerned suit i.e., 31st May, 2022, deserves to be excluded for the
purpose of calculating the 120 days limitation period stipulated under Rule 4
of Chapter VII of DHC Original Side Rules. However, it is not disputed by
the ld. Counsel for the Appellant Club that the Counsel appearing for the said
Club on 25th March, 2022 in the concerned suit, had duly accepted the
summons on behalf of the Appellant Club.
18. In the opinion of this Court, merely because the management of the
club had been changed, the same would not constitute a justifiable ground for
extending the time for filing the written statement in terms of Rule 4 of
Chapter VII of DHC Original Side Rules. It is also not the case of the
Appellant Club that the Counsel who had appeared on 25th March, 2022 on
its behalf was not duly authorised by the said Club. It deserves to be noted
that the matter was also listed before the ld. Joint Registrar on 4th May, 2022
after the new management had taken over, however, on the said date, there
was no appearance on behalf of Appellant Club.
19. Rule 4 of Chapter VII of DHC Original Side Rules being mandatory in
nature the 120 days limitation period stipulated under the said Rule would
begin from 25th March, 2022 i.e., the date when summons was issued and
duly accepted on behalf of the Appellant Club.
20. It is noted that on the date on which the new management is stated to
have appeared for the first time before the Court in the concerned suit i.e.,
31st May, 2022, the outer period of limitation of 120 days had not been
exhausted. Thus, the Appellant Club could have still filed the written
statement at that stage, but it chose not to do so, albeit on the ground that the
representation of the Respondent/Plaintiff to the new management was under
consideration in terms of the direction passed by the ld. Single vide order
dated 31st May, 2022 in the concerned suit. However, as is clear from the said
order of the ld. Single Judge, there is no direction regarding exclusion of the
time taken for consideration of the said representation from the stipulated time
for filing of written statement.
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 warrant any interference.
23. Needless to add, the right of the Appellant Club to participate in the suit
proceedings including for framing of issues, cross-examination etc., can be
availed of by the Club. Further, the Court has been informed that the other
Defendants i.e., the erstwhile management of the Appellant Club have already
filed their written statements and the same are on record.
24. Accordingly, the present appeal is dismissed.
25. Pending Application(s), if any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
SEPTEMBER 27, 2024
dj/nk/pr/ms
