Delhi High Court
Bharat Singh vs Karan Singh And Others on 3 February, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 03rd FEBRUARY, 2025
IN THE MATTER OF:
+ CS(OS) 427/2022 & I.A. 11530/2022, I.A. 39184/2024, I.A.
39185/2024
BHARAT SINGH .....Plaintiff
Through: Mr. Abhimanyu Mahajan, Mr,
Abhimanyu Walia, Ms. Anubha
Goyal, Mr. Tanishq Sirohi and Ms.
Ishani Pillai, Advocates.
versus
KARAN SINGH AND OTHERS .....Defendants
Through: Mr. Utsav Trivedi, Mr. Himanshu
Sachdeva, Mr. Anudatt Dubey,
Advocate for Defendant No.1
Ms. Chand Chopra and Ms. Neha
Bhupathiraju Advocates for
Defendant No.2
Mr. Saurav Agarwal, Ms. Sunanda
Tulsyan, Mr. Anshuman Choudhary
and Mr. Akhil Sachar, Advocates for
Defendant No.4
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The present appeals have been filed by Defendants No.1 and 4
respectively under Chapter II Rule 5 of the Delhi High Court (Original Side)
Rules, 2018 challenging an Order dated 31.05.2024 passed by the learned
Joint Registrar dismissing the applications filed by the
Applicants/Defendants No.1 and 4 seeking condonation of delay in filing the
written statement.
2. The present suit is one for partition qua properties being House No.H-
21, First and Second Floor, Green Park Extension, New Delhi-110016 on a
plot admeasuring 463 square yards and House No.11, Sector 4, Chandigarh
admeasuring 3813 square yards (hereinafter referred to as "Suit properties")
by metes and bounds for separate and independent possession of the share of
the Plaintiff.
3. Summons was issued and the plaint was registered as a suit by this
Court vide Order dated 26.07.2022. On 28.09.2022, during the course of
hearing, it was submitted by the Defendants that the copies of plaint and
documents are not legible and accordingly this Court vide Order dated
28.09.2022 had directed the Plaintiff to supply the legible copies of the
plaint and documents to all the Defendants within one week.
4. The legible copies of the plaint and documents were received by the
Defendants on 03.10.2022. On 02.11.2022, during the course of hearing, it
was submitted by the Plaintiff that the matter can be referred to mediation.
This submission was not opposed by the Defendants and accordingly, the
matter was referred to Delhi High Court Mediation and Conciliation Centre.
It was jointly submitted by the Defendants that since the matter is now being
referred to mediation, they may be allowed to file their written statement
only after the mediation proceedings are completed. Vide Order dated
02.11.2022, the request of the Defendants for deferring the filing of the
written statement was accepted by this Court. The Order dated 02.11.2022
reads as under:
"1. The present suit is for partition.
2. Learned Counsel for plaintiff submits that the matter
can be referred for mediation as there are chances of
amicable settlement.
3. Learned Counsels for other parties submit that they
have no objection if the matter is referred for
mediation.
4. With the consent of all the parties, the matter is
referred to Delhi High Court Mediation and
Conciliation Centre on 15.11.2022.
5. Learned Counsels for defendants jointly submit that
since the matter is now being referred to mediation,
they may be allowed to file their written statement only
after the mediation proceedings are completed.
Learned Counsel for defendant no. 2 submits that
written statement on behalf of defendant no.2 has
already been filed. Request on behalf of defendants is
recorded by this court.
6. Learned Counsel for plaintiff submits that they have
not received copy of written statement filed on behalf
of defendant no. 2.
7. Let copy of written statement be supplied by
defendant no.2 to learned counsel for plaintiff.
8. List before the court on 25.01.2023."
5. The mediation proceedings failed, which was recorded in the
proceedings dated 24.01.2023. Defendant No.1 filed his written statement on
09.04.2024. Defendant No.4 filed her written statement on 12.04.2023. The
Applicant/Defendant No.1 filed an IA being No. 7900/2023 under Order
VIII Rule 1 of CPC seeking condonation of delay of 74 days in filing the
written statement and Applicant/Defendant No.4 filed an IA being No.
10408/2023 under Order VIII Rule 1 of CPC seeking condonation of delay
of 77 days in filing the written statement.
6. The Ld. Joint Registrar vide Order dated 31.05.2024 dismissed the
applications for condonation of delay and observed that the written
statements have been filed much beyond the period prescribed in the CPC as
well as Delhi High Court (Original Side) Rules, 2018. The Ld. Joint
Registrar further ordered that the written statements along with affidavit of
admission/denial and documents filed by the Applicant/Defendant No.1 and
4 be taken off record and the documents filed by the Plaintiff with the plaint
are deemed to be admitted by the Applicant/Defendant No.1 and 4 as per
relevant provisions of the Delhi High Court (Original Side) Rules, 2018.
7. It is this Order dated 31.05.2024 passed by the Ld. Joint Registrar
against the present appeals have been filed.
8. Learned Counsel for the Applicant/Defendant Nos.1 and 4 submits
that the time limit for filing the written statement started to run from
03.10.2022 when the legible copies of the plaint and documents were
received by the Defendants. It is submitted that vide Order dated
02.11.2022, the filing of the written statement was deferred by this Court
until the conclusion of the mediation proceedings and, therefore, the time for
filing the written statement which had started from 03.10.2022 halted on
02.11.2022. It is further submitted that the Applicant/Defendant No.1 and 4
had filed applications bearing I.A. No.20408/2022 and I.A. No. 20486/2022
seeking deferment from filing the written statement till the conclusion of the
mediation proceedings so as to obviate any technical objections sought to be
raised in event of failure of mediation proceedings. It is submitted that the
Plaintiff chose not to file a reply in said application as recorded in the Order
dated 05.12.2022 and vide Order dated 03.02.2023, the said application was
rendered infructuous as the mediation proceedings failed on 24.01.2023. It is
submitted that the time limit for filing the written statement started again
from 25.01.2023 and the written statement was filed on 12.04.2023 i.e.,
within a period of 120 days.
9. Learned Counsel for the Plaintiff states that the time period given
under Clause 4 of Chapter 7 of the Delhi High Court (Original Side) Rules,
2018 does not permit filing of a written statement beyond the maximum
time prescribed under the said Rule which is 120 days from the date of
service of the Plaint and that there is no power to condone the delay after the
period of 120 days. He states that time to file the written statement started on
the date when the legible copies of the plaint and other documents was
served on the Defendants which is 03.10.2020. He further states that the
time spent in mediation will not stop the clock and therefore, the written
statement filed on 09.04.2023 by Defendant No.1 and the written statement
filed on 12.04.2023 by Defendant No.4 cannot be permitted to be taken on
record.
10. Heard the learned Counsel for the parties and perused the material on
record.
11. At the outset, this Court places its appreciation to the assistance
rendered by the learned Counsels for the parties who have assisted the Court
remarkably well.
12. This Court places its appreciation to the arguing Counsel for
Defendant No.4 who has filed a compilation of judgments which includes
judgments for and against his case.
13. The short question that arises for consideration is whether the clock
for calculating the time period to file written statement would stop running
when the parties are in Mediation or not. The time period for calculating the
limitation for filing written statement is governed by Rules 2 and 4 of
Chapter VII of the Delhi High Court (Original Side) Rules, 2018, which
reads as under:-
" ***
2. Procedure when defendant appears.--If the
defendant appears personally or through an Advocate
before or on the day fixed for his appearance in the
writ of summons:--
(i) where the summons is for appearance and for filing
written statement, the written statement shall not be
taken on record, unless filed within 30 days of the date
of such service or within the time provided by these
Rules, the Code or the Commercial Courts Act, as
applicable. An advance copy of the written statement,
together with legible copies of all documents in
possession and power of defendant, shall be served on
plaintiff, and the written statement together with said
documents shall not be accepted by the Registry, unless
it contains an endorsement of service signed by such
party or his Advocate.
(ii) the Registrar shall mark the documents produced
by parties for purpose of identification, and after
comparing the copies with their respective originals, if
they are found correct, certify them to be so and return
the original(s) to the concerned party.
***
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. "
14. A perusal of the aforesaid Rules show that the written statement
should be filed within 30 days of the service of the plaint. Rule 4 of Chapter
VII of the Delhi High Court (Original Side) Rules, 2018 gives power to the
Court to extend the time for filing written statement for a further period not
exceeding 90 days, but not thereafter. The written statement can be accepted
after a period of 30 days but not exceeding 90 days after the said period of
30 days with an application of condonation of delay giving reasons as to
why the written statement could not be filed within a period of thirty days.
15. A Co-ordinate Bench of this Court in Charu Aggarwal v. Ashok Kalia
and Others, (2023) SCC OnLine Del 1238, after analyzing the various
judgments, has held that the Rules framed by the High Courts were
overriding the provisions of CPC. The Court thereafter places reliance on
the judgment passed by the Division Bench of this Court in Ram Sarup
Lugani v. Nirmal Lugani, 2020 SCC OnLine Del 1353, wherein the
Division Bench of this Court has held that there is no power to condone
delay when the time limit given in the Delhi High Court (Original Side)
Rules, 2018 has exceeded.
16. It is a settled law that the period of 120 days is sacrosanct and beyond
that period written statement cannot be filed and, therefore, the time cannot
be extended. The question in this case is as to whether the time when the
parties are in mediation should be excluded or not.
17. The present suit is one for partition. Section 89 of the CPC provides
for settlement of disputes outside Court. Section 89 of the CPC is
reproduced, which reads as under:-
"89. Settlement of disputes outside the Court.--(1)
Where it appears to the Court that there exist elements
of a settlement which may be acceptable to the parties,
the Court shall formulate the terms of settlement and
give them to the parties for their observations and after
receiving the observations of the parties, the Court
may reformulate the terms of a possible settlement and
refer the same for:--
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement
through Lok Adalat: or
(d) mediation.
(2) Were a dispute has been referred--
(a) for arbitration or conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996)
shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the
provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the
Lok Adalat in accordance with the provisions of sub-
section (1) of section 20 of the Legal Services Authority
Act, 1987 (39 of 1987) and all other provisions of that
Act shall .apply in respect of the dispute so referred to
the Lok Adalat;
(c) for judicial settlement, the Court shall refer the
same to a suitable institution or person and such
institution or person shall be deemed to be a Lok
Adalat and all the provisions of the Legal Services
Authority Act, 1987 (39 of 1987) shall apply as if the
dispute were referred to a Lok Adalat under the
provisions of that Act;
(d) for mediation, the Court shall effect a compromise
between the parties and shall follow such procedure as
may be prescribed."
18. In view of Section 89 of the CPC, every Court while dealing with
family disputes does make a sincere endeavour to ensure that parties reach
an amicable settlement rather spending good time and money in litigation.
The Apex Court in Vikram Bakshi and Others v. Sonia Khosla, (2014) 15
SCC 80, has emphasized the spirit of Mediation and has observed as under:-
"16. According to us it would have been more
appropriate for the parties to at least agree to resort to
mediation as provided under Section 89 CPC and make
an endeavour to find amicable solution of the dispute,
agreeable to both the parties. One of the aims of
mediation is to find an early resolution of the dispute.
The sooner the dispute is resolved the better for all the
parties concerned, in particular, and the society, in
general. For parties, dispute not only strains the
relationship but also destroys it. And, so far as society
is concerned it affects its peace. So what is required is
resolution of dispute at the earliest possible
opportunity and via such a mechanism where the
relationship between individual goes on in a healthy
manner. Warren Burger, once said:
"The obligation of the legal profession is ... to serve as
healers of human conflict ... we should provide
mechanisms that can produce an acceptable result in
shortest possible time, with the least possible expense
and with a minimum of stress on the participants. That
is what justice is all about."
Mediation is one such mechanism which has been
statutorily brought into place in our justice system. It is
one of the methods of alternative dispute resolution
and resolves the dispute in a way that is private, fast
and economical. It is a process in which a neutral
intervenor assists two or more negotiating parties to
identify matters of concern, develop a better
understanding of their situation, and based upon that
improved understanding, develop mutually acceptable
proposals to resolve those concerns. It embraces the
philosophy of democratic decision-making [Alfin, et
al., Mediation Theory & Practice (2nd Edn., 2006)
Lexis Nexis].
17. Thus, mediation being a form of alternative dispute
resolution is a shift from adversarial litigation. When
the parties desire an ongoing relationship, mediation
can build and improve their relationships. To preserve,
develop and improve communication, build bridges of
understanding, find out options for settlement for
mutual gains, search unobvious from obvious, dive
underneath a problem and dig out underlying interests
of the disputing parties, preserve and maintain
relationships and collaborative problem solving are
some of the fundamental advantages of mediation.
Even in those cases where relationships have turned
bitter, mediation has been able to produce positive
outcomes, restoring peace and amity between the
parties.
18. There is always a difference between winning a
case and seeking a solution. Via mediation, the parties
will become partners in the solution rather than
partners in problems. The beauty of settlement through
mediation is that it may bring about a solution which
may not only be to the satisfaction of the parties and,
therefore, create a win-win situation, the outcome
which cannot be achieved by means of judicial
adjudication. Thus, life as well as relationship goes on
with mediation for all the parties concerned and thus
resulting into peace and harmony in the society. While
providing satisfaction to the litigants, it also solves the
problem of delay in our system and further contributes
towards economic, commercial and financial growth
and development of the country.
19. This Bench is of firm opinion that mediation is a
new dimension of access to justice. As it is one of the
best forms, if not the best, of conflict resolution. The
concept of Justice in mediation is advanced in the
oeuvres of Professors Stulberg, Love, Hyman, and
Menkel-Meadow (Self-Determination Theorists). Their
definition of justice is drawn primarily from the
exercise of party self-determination. They are hopeful
about the magic that can occur when people open up
honestly and empathetically about their needs and
fears in uninhibited private discussion. And, as
thinkers, these jurists are optimistic that the
magnanimity of the human spirit can conquer
structural imbalances and resource constraints.
19.1.Professor Stulberg, in his masterful comment on
the drafting of the Uniform Model Mediation Act,
Fairness and Mediation, begins with the understated
predicate that "the meaning of fairness is not
exhausted by the concept of legal justice". In truth, the
more pointed argument advanced in the article is that
legal norms often diverge quite dramatically from our
notion of fairness and the notion of fairness of many
disputants. Legal rules, in Stulberg's vision, are ill-
equipped to do justice because of their rigidity and
inflexibility.
19.2.Professors Lela Love and Jonathan M. Hyman
argue that mediation is successful because it provides
a model for future collaboration. The authors state that
the process of mediation entails the lesson that when
people are put together in the same room and made to
understand each other's goals, they will together reach
a fair resolution. They cite Abraham Lincoln's
inaugural address which proposed that in a
democracy, "„a patient confidence in the ultimate
justice of the people‟ to do justice among themselves ...
is a pillar of our social order".
19.3. Professor Carrie Menkel-Meadow presents a
related point of view in making the case that settlement
has a political and ethical economy of its own and
writes:
"Justice, it is often claimed, emerges only when
lawyers and their clients argue over its meaning, and,
in turn, some authoritative figure or body pronounces
on its meaning, such as in the canonical cases of the
late twentieth century ... For many years now, I have
suggested that there are other components to the
achievement of justice. Most notably, I refer to the
process by which we seek justice (party participation
and empowerment, consensus rather than compromise
or command) and the particular types of outcomes that
might help to achieve it (not binary win-lose solutions,
but creative, pie-expanding or even shared solutions)."
19.4. Justice in mediation also encompasses external
developments, beliefs about human nature and legal
regulation. Various jurists are drawn to mediation in
the belief that litigation and adversarial warring are
not the only, or the best ways to approach conflict. And
how optimistically and sceptically mediators assess the
capabilities of individual parties and institutional
actors to construct fair outcomes from the raw
material of human conduct.
19.5. Mediation ensures a just solution acceptable to
all the parties to dispute thereby achieving "win-win"
situation. It is only mediation that puts the parties in
control of both their disputes and its resolution. It is
mediation through which the parties can communicate
in a real sense with each other, which they have not
been able to do since the dispute started. It is
mediation which makes the process voluntary and does
not bind the parties against their wish. It is mediation
that saves precious time, energy as well as cost which
can result in lesser burden on exchequer when poor
litigants are to be provided legal aid. It is mediation
which focuses on long-term interest and helps the
parties in creating numerous options for settlement. It
is mediation that restores broken relationship and
focuses on improving the future not of dissecting the
past. It is based on an alternative set of values in which
formalism is replaced by informality of procedure, fair
trial procedures by direct participation of parties,
consistent norm enforcement by norm creation, judicial
independence by the involvement of trusted peers, and
so on. This presents an alternative conceptualisation of
justice. "
19. In the opinion of this Court, if parties are attempting to mediate and
settle the dispute and are forced to file written statements then this will
hamper the entire mediation process and would be detrimental to the spirit
of Mediation which ensures a just solution acceptable to all the parties to the
dispute thereby achieving a win-win situation. In the opinion of this Court,
forcing the parties to file a written statement or to complete the pleadings
during the process of mediation will prevent the parties in freely
communicating with each other which they have not been able to since the
dispute started. Confronted with a similar problem, while reckoning the time
period for filing the written statement and as to whether the time spent in
Mediation should be excluded or not, a Co-ordinate Bench of this Court in
Telefonaktiebolaget L.M. Ericsson v. Lava International Limited, 2015 SCC
Online Del 13903, has observed as under:-
"21. It is evident that from 31st August, 2015 till 29th
October, 2015 undisputedly parties were trying to
settle their dispute. Time of 59 days was spent on
settlement talks which at the end of the day could not
be materialized. Interim application is at the stage of
conclusion of the arguments on behalf of the defendant.
The advantage, if any, has gone in favour of the
defendant as there is no ex-parte interim injunction in
the present case. After having heard learned counsel
for the parties, I am of the view that since the parties
were trying to resolve their dispute amicably and that
process has taken 59 days, the said period is to be
excluded from the period provided in the Civil
Procedure Code and Clause 4D(i) of Commercial
Courts Ordinance.
22. Even otherwise, it is a well settled principle of law
that if parties are negotiating settlement during the
pendency of a matter, then the Court will condone the
delay in filing of written statement due to such
settlement talks. This Court, in its decision in Dr.
Sukhdev Singh Gambhir v. Amrit Pal Singh, ILR (2003)
I Delhi 577, inter alia held that:
"5. Having heard, counsel for the parties and taking
into consideration the respective pleas urged before
me, I am of the view that this is a case where the delay
in filing of the written statement deserves to be
condoned. Firstly it is a suit for partition concerning
family members where every endeavor should be made
for amicable settlement. Even otherwise, the mandate
under Section 89 effort ought to be made to settle the
matter. Secondly, the defendant had already filed the
written statement in the suit in District Court. Hence it
could not be the situation that the defendant was
delaying the case, but on account of the attempts at
settlement written statement was not filed"
20. The judgment of the Co-ordinate Bench in Telefonaktiebolaget L.M.
Ericsson (supra) has been quoted with approval by another Co-ordinate
Bench of this Court in Greaves Cotton Ltd. v. Newage Generators (P) Ltd.,
2019 SCC OnLine Del 6556, wherein after quoting the Telefonaktiebolaget
L.M. Ericsson (supra), this Court has observed as under:-
"12. Hence, this court would encourage mediation as a
mechanism to settle the disputes. While the mediation
process is on to insist that the parties should speedily
file pleadings in its very nature would be an
adversarial act and not be conducive for the mediation
process. Hence pendency of the mediation proceedings
itself would not be sufficient ground to condone the
delay in re-filing the written statement."
21. This Court has placed reliance on the two judgments of this Court,
one of a Co-ordinate Bench and other of a Division Bench i.e. Harjyot Singh
v. Manpreet Kaur, 2021 SCC OnLine Del 2629, and Charu Aggarwal
(supra) have also been quoted where period beyond 120 days has not been
condoned.
22. In Charu Aggarwal (supra), the question as to whether the time spent
in Mediation should be condoned or not, was not in issue. What was in issue
was as to whether time limits prescribed under the Delhi High Court
(Original Side) Rules, 2018 are mandatory or not and do the Courts have the
power to condone delay in filing the written statement or not, wherein the
Division Bench of this Court has categorically held that the said time is
sacrosanct and there is no power with the Courts to condone delay beyond
the period of 120 days in filing the written statement or beyond the time
prescribed under the Delhi High Court (Original Side) Rules, 2018 for filing
replication. There is no dispute with that proposition. Since the question that
arises here for the sake of repetition is as to whether the period of 120 days
would stop running when the parties are referred to Mediation or not. Hence,
this Judgment will not be applicable in the present case.
23. Similarly in Harjyot Singh (supra) also, the Co-ordinate Bench did not
condone the delay. However it is relevant to mention that the said Court had
excluded the time when the parties were in Mediation while computing the
period of 120 days. Paragraph No.32 of the said judgment is reproduced,
which reads as under:-
"32. However, the parties were attempting to resolve
their disputes as is evident from the orders passed by
this Court on 16.09.2019, 23.09.2019, 27.09.2019,
01.10.2019 and 22.10.2019. Thus, there is a good
ground to condone the delay in filing of the written
statement commencing for the period till 36 days, that
is, till 22.10.2019."
24. Applying the said law, it is seen that the legible copy of the plaint was
delivered to Defendants No.1 and 4 on 03.10.2022. On 02.11.2022, this
Court referred the parties to Mediation.
25. The Mediation failed on 24.01.2023. The Defendant No.1 has filed a
written statement on 09.04.2023 that is within the period of 120 days and
Defendant No.4 has filed his written statement on 12.04.2023 which is again
within 120 days, excluding the time spent in Mediation.
26. This Court is therefore inclined to exclude the time period from
02.11.2022 to 24.01.2023 for calculating the limitation. The only question
therefore, which arise are whether the delay in filing the written statement
which has been filed within a period of 120 days prescribed under the Delhi
High Court (Original Side) Rules, 2018 but beyond the period of 30 days
has been validly explained or not.
27. The Defendant No.1 has stated that he was bed-ridden for one month
i.e. from 21.02.2023 till 25.03.2023. He is also working in Mumbai in Stock
Market which resulted in delay of 74 days.
28. The Defendant No.4 has also given some reasons as to why there is a
delay of 79 days in filing the written statement.
29. Since this Court has excluded the time spent in Mediation and since
the written statement has been filed within the period of maximum 120 days
excluding the period spent in Mediation, this Court is inclined to accept the
written statement filed by Defendants No.1 and 4, subject to the payment of
costs of Rs.5,000/- to be deposited with "Armed Forces Battle Casualties
Welfare Fund".
30. The appeals are disposed of.
CS(OS) 427/2022 & I.A. 11530/2022, I.A. 39184/2024, I.A. 39185/2024
List before the learned Joint Registrar on 03.03.2025 for further
proceedings.
SUBRAMONIUM PRASAD, J
FEBRUARY 03, 2025
RJ
