$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd JANUARY, 2025
IN THE MATTER OF:
+ CS(OS) 655/2017 & I.A. 12826/2018, I.A. 1434/2020, I.A.
7449/2023, I.A. 49323/2024, I.A. 49324/2024, I.A 1547/2025, I.A.
1550/2025, O.A. 226/2024, O.A. 227/2024
DORIS CHUNG GIM LIAN AND ANR ......Plaintiffs
Through:
versus
SHANTANU PRAKASH & ORS ......Defendants
Through: Ms Pritha Srikumar Iyer and Ms
Saumya Sinha, Advocates
Mr. Dhruv Dewan, Mr.Rohan Batra,
Mr. Rishabh Bhargava, Ms. Raj Sarit
Khare, Advocates for R-10
Mr. Dhruva Vig, Advocate for
Appellant in O.A. 226/2024 &
Defendant No. 4 in CS(OS) 655/2017
Mr. Gautam Narayan, Sr. Advocate
with Ms. Bani Dikshit, Mr. Uddhav
Khanna, Mr. Punishk Handa,
Advocates for Appellant in O.A.
227/2024
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
CS(OS) 655/2017 Page 1 of 38
Signing Date:07.02.2025
19:50:48
JUDGMENT
1. O.A. 226/2024 has been filed by the Appellant/Defendant No.4 herein
under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018
challenging the Order dated 05.11.2024, passed by the learned Joint
Registrar of this Court in I.A. No. 16486/2022 refusing to condone the delay
of 120 days in filing the Written Statement.
2. O.A. 227/2024 has been filed by the Appellant/Defendant No.1 herein
under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018
challenging the Order dated 05.11.2024, passed by the learned Joint
Registrar of this Court in I.A. No.15029/2022 refusing to condone the delay
of 120 days in filing the Written Statement.
3. Shorn unnecessary details, the facts leading to the present appeals are
that the summonses in the present case were accepted by the Defendants
No.1 & 4 herein on 21.08.2022 and Written Statement was filed by the
Defendant No.1 on 27.08.2024 and by the Defendant No.4 on 12.09.2022
along with the applications, being I.A. No.15029/2022 & I.A. No.
16486/2022 respectively, for condonation of delay in filing the Written
Statements.
4. It is not in dispute that the Written Statements have been filed beyond
the maximum prescribed period of 120 days under Rule 4 of the Delhi High
Court (Original Side) Rules, 2018.
5. The short question which arises for consideration is as to whether the
Courts have power to condone the delay beyond the maximum period
prescribed under Rule 4 of the Delhi High Court (Original Side) Rules,
2018. Learned Joint Registrar, while refusing to condone the delay in filing
the Written Statements, has placed reliance on the Judgments of this Court
in Ms. Charu Agarwal Vs. Mr. Alok Kalia & Ors., 2023 SCC OnLine Del
1238; Delhi Gymkhana Club Limited Vs. Col. Ashish Khanna S, Retd and
Others, 2024, SCC OnLine Del 7022; Manhar Sabrawal Vs. High Court of
Delhi, 2024: DHC: 6406. The argument raised by the Learned Counsel for
the Plaintiff before the learned Joint Registrar was that the statutory period
of 120 days provided in Rule 4 of Chapter VII of Delhi High Court (Original
Side) Rules is mandatory and non-negotiable and any Written Statement
filed beyond the said period cannot be taken on record is no longer res
integra. The reliance placed by the learned Counsel for the Defendants No.1
& 4 on the Judgment passed by this Court in Vikrant Khanna & Ors Vs.
Smt. Amita Lamba & Anr., FAO(OS) 20/2023 decided on 17.09.2024 has
been distinguished on facts by the learned Joint Registrar.
6. For the sake of convenience Rule 4 & 5 of Chapter VII of Delhi High
Court (Original Side) Rules 2018 are being extracted and the same reads as
under:
"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.
5. Replication.-The replication, if any, shall be filed
within 30 days of receipt of the written statement. If the
Court is satisfied that the plaintiff was prevented by
sufficient cause for exceptional and unavoidable
reasons in filing the replication within 30 days, it may
extend the time for filing the same by a further period
not exceeding 15 days but not thereafter. For such
extension, the plaintiff shall be burdened with costs, as
deemed appropriate. The replication shall not be taken
on record, unless such costs have been paid/deposited.
In case no replication is filed within the extended time
also, the Registrar shall forthwith place the matter for
appropriate orders before the Court. An advance copy
of the replication together with legible copies of all
documents in possession and power of plaintiff, that it
seeks to file along with the replication, shall be served
on the defendant and the replication together with the
said documents shall not be accepted unless it contains
an endorsement of service signed by the defendant/his
Advocate." (emphasis supplied)
7. The Division Bench of this Court in Ram Sarup Lugani v. Nirmal
Lugani, 2020 SCC OnLine Del 1353, has observed as under:
"14. The term "The Court" and "Registrar" have been
defined in Rule 4 that is a part of Chapter I of the
Rules. On a reading of Rule 5 it is clear that the
replication, if any, should be filed within a period of 30
days from the date of receipt of the written statement.
The word "shall" used in the said Rule postulates that
the replication must be filed within 30 days of the
receipt of the written statement. The Registrar does not
have the power to condone any delay beyond 30 days.
The permission to condone the delay beyond the period
of 30 days, lies with the court. If the court is satisfied
that the plaintiff was prevented by sufficient cause or
for exceptional and unavoidable reasons from filing
the replication within 30 days, it may extend the time
for filing the same by a further period not exceeding 15
days with a suffix appended to the Rule stating, "but
not thereafter". The phrase "but not thereafter"
mentioned in the Rule indicates that the intention of the
rule making authority was not to permit any
replication to be entertained beyond a total period of
45 days. If any other interpretation is given to the said
Rule, then the words "but not thereafter", will become
otiose.
15. This is not the first time that the phrase, "but not
thereafter" have been used in the statute. The said
preemptory words have been used in other provisions
that have come up for interpretation before the
Supreme Court. In Union of India v. Popular
Construction Co., reported as (2001) 8 SCC 470, the
words "but not thereafter" were used in relation to the
power of the court to condone the delay in challenging
the award beyond the period prescribed under Section
34 of the Arbitration and Concilliation Act, 1996 and
the Supreme Court observed as below:--
"12. As far as the language of Section 34 of the
1996 Act is concerned, the crucial words are "but
not thereafter" used in the proviso to sub-section
(3). In our opinion, this phrase would amount to
an express exclusion within the meaning of
Section 29(2) of the Limitation Act, and would
therefore bar the application of Section 5 of that
Act. Parliament did not need to go further. To
hold that the court could entertain an application
to set aside the award beyond the extended period
under the proviso, would render the phrase "but
not thereafter" wholly otiose. No principle of
interpretation would justify such a result.
16. Furthermore, Section 34(1) itself provides that
recourse to a court against an arbitral award may
be made only by an application for setting aside
such award "in accordance with" sub-section (2)
and sub-section (3). Sub-section (2) relates to
grounds for setting aside an award and is not
relevant for our purposes. But an application filed
beyond the period mentioned in Section 34, sub-
section (3) would not be an application "in
accordance with" that sub-section. Consequently
by virtue of Section 34(1), recourse to the court
against an arbitral award cannot be made beyond
the period prescribed. The importance of the
period fixed under Section 34 is emphasised by
the provisions of Section 36 which provide that
"where the time for making an application to
set aside the arbitral award under Section 34
has expired ... the award shall be enforced
under the Code of Civil Procedure, 1908 in
the same manner as if it were a decree of the
court".
This is a significant departure from the provisions
of the Arbitration Act, 1940. Under the 1940 Act,
after the time to set aside the award expired, the
court was required to "proceed to pronounce
judgment according to the award, and upon the
judgment so pronounced a decree shall follow"
(Section 17). Now the consequence of the time
expiring under Section 34 of the 1996 Act is that
the award becomes immediately enforceable
without any further act of the court. If there were
any residual doubt on the interpretation of the
language used in Section 34, the scheme of the
1996 Act would resolve the issue in favour of
curtailment of the court's powers by the exclusion
of the operation of Section 5 of the Limitation
Act." (emphasis supplied)
16. In Singh Enterprises v. Commissioner of Central
Excise, Jamshedpur, reported as (2008) 3 SCC 70, on
interpreting Section 35 of the Central Excise Act,
which contains similar provisions, the Supreme Court
has observed as under:
"8. The Commissioner of Central Excise(appeals)
as also the Tribunal being creatures of statute are
not vested with jurisdiction to condone the delay
beyond the permissible period provided under the
statute. The period up to which the prayer for
condonation can be accepted is statutorily
provided. It was submitted that the logic of
Section 5 of the Limitation Act, 1963 (in short
"the Limitation Act") can be available for
condonation of delay. The first proviso to Section
35 makes the position clear that the appeal has to
be preferred within three months from the date of
communication to him of the decision of order.
However, if the Commissioner is satisfied that the
appellant was prevented by sufficient cause from
presenting the appeal within the aforesaid period
of 60 days, he can allow it to be presented within
a further period of 30 days. In other words, this
clearly shows that the appeal has to be filed
within 60 days but in terms of the proviso further
30 days time can be granted by the appellate
authority to entertain the appeal. The proviso to
sub-section(1) of Section 35 makes the position
crystal clear that the appellate authority has no
power to allow the appeal to be presented beyond
the period of 30 days. The language used makes
the position clear that the legislature intended the
appellate authority to entertain the appeal by
condoning delay only up to 30 days after the
expiry of 60 days which is the normal period for
preferring appeal. Therefore, there is complete
exclusion of Section 5 of the Limitation Act. The
Commissioner and the High Court were therefore
justified in holding that there was no power to
condone the delay after the expiry of 30 days'
period."(emphasis supplied)
17. After referring to the above decision, in
Commissioner of Customs and Central Excise v.
Hongo India Private Limited, reported as (2009) 5
SCC 791, the Supreme Court went on to observe as
under:
"30. In the earlier part of our order, we have
adverted to Chapter VI-A of the Act which
provides for appeals and revisions to various
authorities. Though Parliament has specifically
provided an additional period of 30 days in the
case of appeal to the Commissioner, it is silent
about the number of days if there is sufficient
cause in the case of an appeal to the Appellate
Tribunal. Also an additional period of 90 days in
the case of revision by the Central Government
has been provided. However, in the case of an
appeal to the High Court under Section 35-G and
reference application to the High Court under
Section 35-H, Parliament has provided only 180
days and no further period for filing an appeal
and making reference to the High Court is
mentioned in the Act.
XXXX
32. As pointed out earlier, the language used in
Sections 35, 35-B, 35-EE, 35-G and 35-H makes
the position clear that an appeal and reference to
the High Court should be made within 180 days
only from the date of communication of the
decision or order. In other words, the language
used in other provisions makes the position clear
that the legislature intended the appellate
authority to entertain the appeal by condoning the
delay only up to 30 days after expiry of 60 days
which is the preliminary limitation period for
preferring an appeal. In the absence of any clause
condoning the delay by showing sufficient cause
after the prescribed period, there is complete
exclusion of Section 5 of the Limitation Act. The
High Court was, therefore, justified in holding
that there was no power to condone the delay
after expiry of the prescribed period of 180 days.
XXXX
35. It was contended before us that the words
"expressly excluded" would mean that there must
be an express reference made in the special or
local law to the specific provisions of the
Limitation Act of which the operation is to be
excluded. In this regard, we have to see the
scheme of the special law which here in this case
is the Central Excise Act. The nature of the
remedy provided therein is such that the
legislature intended it to be a complete code by
itself which alone should govern the several
matters provided by it. If, on an examination of
the relevant provisions, it is clear that the
provisions of the Limitation Act are necessarily
excluded, then the benefits conferred therein
cannot be called in aid to supplement the
provisions of the Act. In our considered view, that
even in a case where the special law does not
exclude the provisions of Sections 4 to 24 of the
Limitation Act by an express reference, it would
nonetheless be open to the court to examine
whether and to what extent, the nature of those
provisions or the nature of the subject-matter and
scheme of the special law exclude their operation.
In other words, the applicability of the provisions
of the Limitation Act, therefore, is to be judged
not from the terms of the Limitation Act but by the
provisions of the Central Excise Act relating to
filing of reference application to the High Court."
(emphasis supplied)
18. We may also profitably refer to Bengal Chemists
and Druggists Association v. Kalyan Chowdhury,
reported as (2018) 3 SCC 41, where while examining
the provisions of the Companies Act, the Supreme
Court made the following observations:
"3. Before coming to the judgments of this Court,
it is important to first set out Section 421(3) and
Section 433 of the Act. These provisions read as
follows:
"421. Appeal from orders of Tribunal.--(1)-
(2) * * *
(3) Every appeal under sub-section (1) shall
be filed within a period of forty-five days
from the date on which a copy of the order of
the Tribunal is made available to the person
aggrieved and shall be in such form, and
accompanied by such fees, as may be
prescribed:
Provided that the Appellate Tribunal may
entertain an appeal after the expiry of the
said period of forty-five days from the date
aforesaid, but within a further period not
exceeding forty-five days, if it is satisfied that
the appellant was prevented by sufficient
cause from filing the appeal within that
period. ...
***
433. Limitation.--The provisions of the
Limitation Act, 1963 (36 of 1963) shall, as
far as may be, apply to proceedings or
appeals before the Tribunal or the Appellate
Tribunal, as the case may be."
4. A cursory reading of Section 421(3) makes it
clear that the proviso provides a period of
limitation different from that provided in the
Limitation Act, and also provides a further period
not exceeding 45 days only if it is satisfied that the
appellant was prevented by sufficient cause from
filing the appeal within that period. Section 433
obviously cannot come to the aid of the appellant
because the provisions of the Limitation Act only
apply "as far as may be". In a case like the
present, where there is a special provision
contained in Section 421(3) proviso, Section 5 of
the Limitation Act obviously cannot apply.
5. Another very important aspect of the case is
that 45 days is the period of limitation, and a
further period not exceeding 45 days is provided
only if sufficient cause is made out for filing the
appeal within the extended period. According to
us, this is a peremptory provision, which will
otherwise be rendered completely ineffective, if
we were to accept the argument of the learned
counsel for the appellant. If we were to accept
such argument, it would mean that
notwithstanding that the further period of 45 days
had elapsed, the Appellate Tribunal may, if the
facts so warrant, condone the delay. This would
be to render otiose the second time-limit of 45
days, which, as has been pointed out by us above,
is peremptory in nature." (emphasis supplied)
19. In P. Radhabai v. P. Ashok Kumar, reported as
(2019) 13 SCC 445, while construing the phrase, "but
not thereafter" used in the proviso to sub section (3) of
Section 34 of the Arbitration and Concilliation Act, the
Supreme Court held thus:
"32.4. The limitation provision in Section 34(3)
also provides for condonation of delay. Unlike
Section 5 of the Limitation Act, the delay can only
be condoned for 30 days on showing sufficient
cause. The crucial phrase "but not thereafter"
reveals the legislative intent to fix an outer
boundary period for challenging an award.
XXXX
33.2. The proviso to Section 34(3) enables a court
to entertain an application to challenge an award
after the three months' period is expired, but only
within an additional period of thirty dates, "but
not thereafter". The use of the phrase "but not
thereafter" shows that the 120 days' period is the
outer boundary for challenging an award. If
Section 17 were to be applied, the outer boundary
for challenging an award could go beyond 120
days. The phrase "but not thereafter" would be
rendered redundant and otiose. This Court has
consistently taken this view that the words "but
not thereafter" in the proviso of Section 34(3) of
the Arbitration Act are of a mandatory nature,
and couched in negative terms, which leaves no
room for doubt. (State of H.P. v. Himachal
Techno Engineers [State of H.P. v. Himachal
Techno Engineers, (2010) 12 SCC 210 : (2010) 4
SCC (Civ) 605], Assam Urban Water Supply &
SewerageBoard v. Subash Projects & Mktg. Ltd.
[Assam Urban Water Supply & Sewerage Board
v. Subash Projects & Mktg. Ltd., (2012) 2 SCC
624 : (2012) 1 SCC (Civ) 831] and Anilkumar
Jinabhai Patel v. Pravinchandra Jinabhai Patel
[Anilkumar Jinabhai Patel v. Pravinchandra
Jinabhai Patel, (2018) 15 SCC 178 : (2019) 1
SCC (Civ) 141].)
34. In our view, the aforesaid inconsistencies with
the language of Section 34(3) of the Arbitration
Act tantamount to an "express exclusion" of
Section 17 of the Limitation Act." (emphasis
supplied)
20. In New India Assurance Company Limited v. Hili
Multipurpose Cold Storage Private Limited, reported
as (2020) 5 SCC 757, the issue before the Supreme
Court was whether Section 13(2)(a) of the Consumer
Protection Act, 1986 that provides for the
respondent/opposite party to file its response to the
complaint within 30 days or such extended period, not
extending 15 days, should be read as mandatory or
directory i.e. whether the District Forum would have
the power to extend the time for filing the response
beyond the period of 15 days, in addition to 30 days.
The Supreme Court has answered the said question in
the following words:
"20. The legislature in its wisdom has provided
for filing of complaint or appeals beyond the
period specified under the relevant provisions of
the Act and Regulations, if there is sufficient
cause given by the party, which has to be to the
satisfaction of the authority concerned. No such
discretion has been provided for under Section
13(2)(a) of the Consumer Protection Act for filing
a response to the complaint beyond the extended
period of 45 days (30 days plus 15 days). Had the
legislature not wanted to make such provision
mandatory but only directory, the provision for
further extension of the period for filing the
response beyond 45 days would have been
provided, as has been provided for in the cases of
filing of complaint and appeals. To carve out an
exception in a specific provision of the statute is
not within the jurisdiction of the courts, and if it is
so done, it would amount to legislating or
inserting a provision into the statute, which is not
permissible.
XXXX
25. The contention of the learned counsel for the
respondent is that by not leaving a discretion with
the District Forum for extending the period of
limitation for filing the response before it by the
opposite party, grave injustice would be caused as
there could be circumstances beyond the control
of the opposite party because of which the
opposite party may not be able to file the response
within the period of 30 days or the extended
period of 15 days. In our view, if the law so
provides, the same has to be strictly complied, so
as to achieve the object of the statute. It is well
settled that law prevails over equity, as equity can
only supplement the law, and not supplant it.
XXXX
27. It is thus settled law that where the provision
of the Act is clear and unambiguous, it has no
scope for any interpretation on equitable
ground." (emphasis supplied)
21. A conspectus of the decisions referred to above
leaves no manner of doubt that where ever the phrase
"but not thereafter" has been used in a provision for
setting a deadline, the intention of the legislature is to
treat the same as a preemptory provision. Thus, if Rule
15 of the DHC Rules mandates filing of a replication
within a period of 30 days reckoned from the date of
receipt of the written statement, with an additional
period of 15 days provided and that too only if the
court is satisfied that the plaintiff has been able to
demonstrate that it was prevented to do so by sufficient
cause or for exceptional and unavoidable reasons, can
the time for filing the replication be extended for a
further period not exceeding 15 days in any event, with
costs imposed on the plaintiff. The critical phrase "but
not thereafter" used in Rule 15 must be understood to
mean that even the court cannot extend the period for
filing the replication beyond the outer limit of 45 days
provided in the DHC Rules. Upon expiry of the said
period, the plaintiff's right to file the replication would
stand extinguished. Any other meaning sought to be
bestowed on the above provision, would make the
words "but not thereafter", inconsequential.
22. The next contention of Mr. Mehta that the words
"the Registrar shall forthwith place the matter for
appropriate orders before the court" used in Rule 5 of
the DHC Rules indicates that the court would still have
the power to accept a replication filed beyond a period
of 45 days, is also untenable. The Supreme Court has
emphasized that the answer to the problem as to
whether a statutory provision is mandatory or is
directory in nature, lies in the intention of the law
maker, as expressed in the law itself. The words
"replication, if any, shall be filed within 30 days of the
receipt of the written statement" and further, the words
"further period not exceeding 15 days, but not
thereafter" used in Rule 5 will lose its entire meaning
if we accept the submission made on behalf of the
appellants that even if the timeline for filing the
replication cannot be extended by the Registrar, there
is no such embargo placed on the court.
23. The court must start with the assumption that every
word used in a statute, has been well thought out and
inserted with a specific purpose and ordinarily, the
court must not deviate from what is expressly stated
therein. The period granted for filing the replication
under Rule 15 of the DHC Rules is only 30 days and on
expiry of 30 days, the court can only condone a delay
which does not exceed 15 days over and above 30 days
and that too on the condition that the plaintiff is able to
offer adequate and sufficient reasons explaining as to
why the replication could not be filed within 30 days.
As observed earlier, since the terms „Court‟ and
„Registrar‟ have been defined in the DHC Rules, Rule
5 requires that the court alone can extend the time to
file the replication beyond the period of 30 days from
the date of receipt of the written statement. Even the
discretion vested in the court for granting extension of
time is hedged with conditions and the outer limit
prescribed is 15 days. If the replication is not filed
within the extended time granted, the Registrar is
required to place the matter back before the court for
closing the right of the plaintiff to file the replication.
24. A reading of the relevant provisions of the DHC
Rules shows that it is a special provision within the
meaning of Section 29(2) of the Limitation Act (for
short „the Act‟), that contemplates that where any
special or local law prescribes a time limit that is
different from the one provided for under the
Limitation Act, 1963, then Section 4 to Section 14 of
the Limitation Act, 1963 would be expressly excluded.
It is well settled that even in a case where the special
law does not exclude the provisions of Section 4 to
Section 14 of the Limitation Act, 1963 by an express
provision or reference, then too, if it is clear from the
mandate or the language of the statute, the scheme of
the special law will exclude the application of Section
4 to Section 14 of the Limitation Act, 1963. (Ref :
Hukumdev Narain Yadav v. Lalit Narain Mishra,
reported as (1974) 2 SCC 133).
25. It is equally well settled that when the provision of
a law/statute prescribes specific provisions, then those
provisions cannot be sidestepped or circumvented by
seeking to invoke the inherent powers of the court
under the statute. The principles required to be
followed for regulating the inherent powers of the
court in the context of applying the provisions of
Section 151 CPC, have been highlighted in State of
Uttar Pradesh v. Roshan Singh, reported as (2008) 2
SCC 488, wherein the Supreme Court has observed as
under:
"7. The principles which regulate the exercise of
inherent powers by a court have been highlighted
in many cases. In matters with which the Code of
Civil Procedure does not deal with, the court will
exercise its inherent power to do justice between
the parties which is warranted under the
circumstances and which the necessities of the
case require. If there are specific provisions of the
Code of Civil Procedure dealing with the
particular topic and they expressly or by
necessary implication exhaust the scope of the
powers of the court or the jurisdiction that may be
exercised in relation to a matter, the inherent
powers of the court cannot be invoked in order to
cut across the powers conferred by the Code of
Civil Procedure. The inherent powers of the court
are not to be used for the benefit of a litigant who
has a remedy under the Code of Civil Procedure.
Similar is the position vis-à-vis other statutes.
8. The object of Section 151 CPC is to supplement
and not to replace the remedies provided for in
the Code of Civil Procedure. Section 151 CPC
will not be available when there is alternative
remedy and the same is accepted to be a well-
settled ratio of law. The operative field of power
being thus restricted, the same cannot be risen to
inherent power. The inherent powers of the court
are in addition to the powers specifically
conferred on it. If there are express provisions
covering a particular topic, such power cannot be
exercised in that regard. The section confers on
the court power of making such orders as may be
necessary for the ends of justice of the court.
Section 151 CPC cannot be invoked when there is
express provision even under which the relief can
be claimed by the aggrieved party. The power can
only be invoked to supplement the provisions of
the Code and not to override or evade other
express provisions. The position is not different so
far as the other statutes are concerned.
Undisputedly, an aggrieved person is not
remediless under the Act."(emphasis supplied)
****
28. In our opinion, reliance placed by Mr. Mehta on
Desh Raj (supra), is also misplaced. No doubt, the
Supreme Court has held that a reading of proviso 2
appended to Rule 1 of Order VIII would show that the
said Rule is only directory and not mandatory,
ultimately the Supreme Court has refused to condone
the delay in that case. In fact, the said decision is not
applicable to the facts of this case for the reason that
in the said judgment, there was no occasion to deal
with the scope and effect of Rule 5 of Chapter VII of
the DHC Rules. In any event, the DHC Rules will have
an overriding effect on the CPC. Notably the Code
does not provide for filing of any replication. Order VI,
Rule 1 describes "pleadings" to mean plaint or written
statement. It is the Delhi High Court (Original Side)
Rules, 2018 that provides a time limit for filing the
replication and since the said Rules regulate the
procedure, the same will have to prevail over the Code.
We are in complete agreement with the view taken by
the Division Bench of this court in DDA v. K.R.
Builders (P) Ltd., reported as (2005) 81 DRJ 708 and
relied on in HTIL Corporation, B.V v. Ajay Kohli,
reported as (2006) 90 DRJ 410, where it was observed
as under:
"6. The question as to whether the CPC or the
Original Side Rules will apply was considered by
a Division Bench of this court in the recent case
of DDA v. K.R. Builders P. Ltd., (2005) 81 DRJ
708 (DB). The finding of the Division Bench
supported the view of the learned defence counsel
that suits filed on the original side of this court
would be governed by the rules framed by the
High Court to the exclusion of the provisions of
the CPC wherever the field is occupied by these
Rules and that this court has the power to extend
the time for filing the written statement even
beyond 90 days. However, the Division Bench
also clarified that Rule 3, as it then stood, of
Chapter IV of the Delhi High Court (Original
Side Rules) does not contemplate unending
extensions to be granted on the asking. Rule 3
provided as under:
"3. Extension of time for filing written
statement.-- Ordinarily, not more than one
extension of time shall be granted to the
defendant for filing a written statement
provided that a second or any further
extension may be granted only on an
application made in writing setting forth
sufficient grounds for such extension and
supported, if so required, by an affidavit."
7. The Division Bench pointed out that as per the
rule quoted above, only one extension of time was
to be granted for filing written statement and that
the second or further extension may be granted
only on an application made in writing setting
forth sufficient grounds. It was also pointed out
that the expression „any further extension‟ in this
proviso does not contemplate unending extensions
on the asking and that „any further extension‟
should receive a restricted interpretation. The
situation has now changed since the Delhi High
Court (Original Side Rules) have also been
amended. The amendment which has taken effect
on 9.1.2006 is now as under:
"3. Extension of time for filing written
statement.-- Where the defendant fails to file
written statement within the period of 30
days as stated in Rule 2(ii) he shall be
allowed to file the same on such other day as
may be specified by the Court on an
application made in writing setting forth
sufficient ground for such extension and
supported, if so required, by an affidavit but
such day shall not be later than 90 days from
the service of summons."
8. In view of this amendment, the Delhi High
Court (Original Side Rules) give the same time
schedule for filing a written statement. Written
statement, therefore, can be filed within 30 days
and thereafter on sufficient ground for such
extension being shown on an affidavit but such
extension shall not be later than 90 days from the
date of service."(emphasis supplied)"
8. The said Judgment has been followed by a Coordinate Bench of this
Court in Ms. Charu Agarwal Vs. Mr. Alok Kalia & Ors., 2023 SCC OnLine
Del 1238, while dealing with the power to condone delay in filing Written
Statement. The Coordinate Bench after placing reliance on the Judgment
passed by the Apex Court in Iridium India Telecom Ltd. v. Motorola Inc.,
(2005) 2 SCC 145, has observed as under:
"14. As would be evident from the aforesaid
observations as entered, the Division Bench of the
Court found that the usage of the phrase "but not
thereafter" was of criticality and thus would lead to
the conclusion that upon the expiry of the maximum
period prescribed under Rule 5, the right of the
Plaintiff to file a replication would stand extinguished.
The Division Bench further pertinently observed that
any other meaning if accorded to Rule 5 would render
the words "but not thereafter" inconsequential."
9. Learned Counsel for the Appellants/Defendants No.1 & 4 has placed
emphasis on another judgment passed by the co-ordinate Bench of this Court
in Amarendra Dhari Singh v. R.C. Nursery Pvt. Ltd., 2023 SCC OnLine
Del 84, wherein the co-ordinate Bench of this Court after placing reliance on
the Ram Sarup Lugani (supra) has observed as under:
"24. Rule 4 of the Rules, though in the opening part
thereof states that the Court may extend the time for
filing the written statement by a further period not
exceeding 90 days, „but not thereafter‟, further goes on
to state that 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. It is
settled principle of law that the word „may‟ is not a
word of compulsion; it is an enabling word and implies
discretion unless it is coupled with a duty or the
circumstances of its use otherwise warrants. The use of
word „may‟ in Rule 4 is to confer a discretion in the
Registrar in a given case not to close the right of the
defendant to file the written statement even though the
same has not been filed within the extended time. The
discretion that was left in the Court under Order VIII
Rule 1 read with Order VIII Rule 10 of the CPC as
applicable to non-commercial suits, has been
continued by the Rules.
25. It is to be kept in mind that the High Court of
Delhi, at the time of notifying the Rules in 2018, had
the benefit of the CPC as applicable to non-
commercial suits as also the special provisions
applicable to Commercial Suits under the Commercial
Courts Act, 2015. The High Court would have been
well aware of the interpretation placed by the Courts
on these provisions, laying special emphasis on the
words used therein. The High Court did not choose the
language of the Commercial Courts Act. This shows
the intent of the High Court, in its Rule making power,
not to foreclose the discretion vested in the
Court/Registrar to condone the delay even beyond 120
days of the service of summons if sufficient cause is
shown for such non-filing. It is settled law that use of
same language in a later statute as was used in an
earlier one in pari materia is suggestive of the
intention of the legislature that the language so used in
the later statute is used in the same sense as in the
earlier one, and change of language in a later statute
in pari materia is suggestive that change of
interpretation is intended.
26. Applying the above principle, it must be held that
the High Court, not having adopted the language of the
Commercial Courts Act, but of the CPC as applicable
to non-commercial suits, did not intend the Court to be
completely denuded of its power to condone the delay
in filing of the written statement beyond 120 days of the
service of the summons.
27. Of course, in considering the delay beyond 120
days, the court will adopt an even more harsh and
strict yardstick in determining the sufficiency of cause
shown, as has been held in Kailash (supra).
28. In Ram Sarup Lugani (supra), a Division Bench of
this Court was considering Rule 5 of Chapter VII of the
Rules, which read as under:--
CHAPTER VII
5. Replication.- The replication, if any, shall be
filed within 30 days of receipt of the written
statement. If the Court is satisfied that the plaintiff
was prevented by sufficient cause for exceptional
and unavoidable reasons in filling the replication
within 30 days, it may extend the time for filing
the same by a further period not exceeding 15
days but not thereafter. For such extension, the
plaintiff shall be burdened with costs, as deemed
appropriate. The replication shall not be taken on
record, unless such costs have been
paid/deposited. In case no replication is filed
within the extended time also, the Registrar shall
forthwith place the matter for appropriate orders
before the Court. An advance copy of the
replication together with legible copies of all
documents in possession and power of plaintiff,
that it seeks to file along with the replication,
shall be served on the defendant and the
replication together with the said documents shall
not be accepted unless it contains an endorsement
of service signed by the defendant/his Advocate."
(Emphasis supplied)
29. The Division Bench laying emphasis on the words
„but not thereafter‟, held that the Court cannot extend
the period for filing the replication beyond the outer
limit of 45 days as mandated in the Rules, and upon
expiry of the said period, the plaintiff's right to file the
replication would stand extinguished. However, it must
be noticed that unlike Rule 4 of the Rules which states
that „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‟, no such
discretion was vested in the Registrar or the Court by
Rule 5 of the Rules. Rule 5, in fact, mandates the
Registrar to forthwith place the matter for appropriate
order before the Court. This difference in language
used cannot also be said to be without any purpose.
The judgment in Ram Sarup Lugani (supra), therefore,
cannot govern the interpretation to be placed on Rule 4
of the Rules.
30. In Harjyot Singh (supra), the learned Single Judge
of this Court, placing reliance on the Ram Sarup
Lugani (supra), held that the Court does not have the
power to condone a delay of beyond 90 days in filing of
the written statement. However, in holding so, the
learned Single Judge did not take notice of the
difference between Rule 4 and Rule 5 of the Rules, as
has been highlighted hereinabove. It also did not take
note of the earlier judgment of the Division Bench of
this Court in Esha Gupta (supra), which taking note of
Rule 4 of the Rules and placing reliance on Desh Raj
(supra), condoned the delay in filing of the written
statement beyond the period of 120 days of service of
summons.
31. In view of the above, it is held that though normally
the learned Registrar/Court, in a non-commercial Suit,
shall not condone the delay in filing of the Written
Statement beyond a period 120 days of the service of
summons on the defendant, the learned
Registrar/Court may, for exceptionally sufficient cause
being shown by the defendant for not filing the written
statement even within the extended time, grant further
extension of time to the defendant to file the Written
Statement. On such exceptionally sufficient cause been
shown by the defendant, the Court is not powerless. It
must exercise the discretion vested in it to ensure that
procedural law does not trump over the endeavour to
ensure that justice is done and the defendant is not
condemned unheard. Again, even while exercising such
discretion in favour of the defendant, the Court may
adequately compensate the plaintiff and burden the
defendant with exemplary costs so that injustice is not
done to the plaintiff as well. The above cited test
propounded by the Supreme Court in Kailash (supra)
shall have to be kept in view by the Court while
considering an application filed by the defendant
seeking condonation of delay in filing of the written
statement beyond 120 days of the receipt of the
summons."
10. However, the co-ordinate Bench of this Court in Charu Agarwal
(supra) after noticing the conclusion in Amarendra Dhari Singh (supra) has
held that the principle propounded by this Court in Ram Sarup Lugani
(supra) was a binding principle and has held as under:
"28. As would be apparent from the aforesaid
conclusions which stand recorded in Amarendra Dhari
Singh, the learned Judge appears to have taken the
view that notwithstanding the usage of the expression
"but not thereafter" in Rule 4, the penultimate part of
that Rule, and which in the opinion of the learned
Judge conferred a discretion upon the Registrar to
either close the right to file a written statement or to
grant further time, clearly appeared to suggest that the
said power of condonation would still be available
notwithstanding the maximum period as prescribed in
that Rule having lapsed. While seeking to explain the
decision in Ram Sarup Lugani, the learned Judge held
that the difference between the language of Rule 4 and
5 would be crucial and decisive and thus the Registrar
being empowered to extend time beyond the maximum
prescribed notwithstanding the use of the expression
"but not thereafter". It becomes significant to recall
here that a submission was in fact addressed before the
Division Bench that the stipulation of the matter being
placed before the Court after the maximum period had
expired in terms of Rule 5 would appear to suggest that
the prescription of time in that provision was not
inviolable. The said contention was soundly rejected by
the Division Bench in light of the peremptory language
employed in the Rule.
29. Similarly, the decision in Harjyot Singh was sought
to be explained with the learned Judge observing that
the Court had failed to notice the distinction in the
language employed in Rules 4 and 5 and that it had not
noticed the judgment of the Court in Esha Gupta.
Suffice it to note at this juncture that the decision in
Esha Gupta rested principally on Order VIII and the
decisions rendered in the context of that provision.
However, that analogy as would be evident from the
preceding parts of this decision, had been stoutly
negated in Ram Sarup Lugani which had come to be
delivered after the judgment in Esha Gupta.
Additionally, it may be noted that the decision in Esha
Gupta had in any case failed to consider the earlier
decisions of the Court and which had categorically
held that the principles underlying Order VIII could
not have been imputed to construe the Rules of the
Court.
30. The learned Judge further observed that this Court
while framing the Rules consciously chose not to adopt
the language as employed in the Commercial Courts
Act, 201515. This, according to the learned Judge,
would be indicative of the intent to preserve the
discretion which stands vested in the Registrar
notwithstanding the maximum period of 120 days
having expired. Suffice it to state that those provisions
do not employ the phrase "but not thereafter" at all.
31. The Court, on a foundational plane, firstly deems it
apposite to advert to the principles which govern the
theory of precedents. Our jurisprudence is based upon
certainty and the hierarchy of courts. The law evolves
based upon judgments which enunciate the law and lay
down principles which the courts are bound to follow.
Judgments rendered by coordinate benches or benches
of a larger composition bind a court irrespective of
doubts or views that may be harboured by individual
judges. The mere fact that a particular contention may
not have been urged or there be an angular argument
which gives birth to a doubt with respect to the
correctness of a decision have never been understood
or accepted to be adequate to tread a line contrary to
what may have been held in a decision which binds and
compels a court to follow a rule which has held the
field. A court would be entitled to take a contrary view
if it were sitting in a Bench of a larger composition or
where it comes across a judgment which permits it to
review or doubt a decision. These could be situations
where a judgment doubts the correctness of a decision
or where a judgment of a superior court permits a
court to review and reconsider a previously decided
case. A novel argument or a mere fresh review of what
a statutory provision entails or should mean has never
been accepted as being sufficient ground to discard a
binding precedent.
32. It must be borne in mind that the principle of
binding precedent bids each Court to adhere to the
principles that may have been enunciated by either
Coordinate Benches or those of a larger coram. The
ratio as flowing from those decisions can neither be
doubted nor brushed aside merely upon a fresh
interpretation or a review of the relevant provisions. A
precedent would continue to bind Benches of a smaller
coram as well as Coordinate Benches notwithstanding
a new argument being canvassed and which may
appear to be attractive. It becomes equally important
to observe that if a judge sitting singly were to doubt
the correctness of a precedent delivered by a bench of
superior strength on it being perceived that a latter
decision of a Bench of coordinate strength takes a
contrary view, the only recourse open to be adopted
would be to refer the matter for the consideration of a
larger Bench in terms of Chapter II Rule 2 of our
Rules.
33. The binding nature of verdicts was explained by a
Full Bench of our Court in Deepak Kumar v. District
and Sessions Judge, Delhi16 in the following terms:--
"38. In this context, the Supreme Court held in
Shyamaraju Hegde v. U. Venkatesha Bhat, (1988)
1 SCR 340 that:
"The Full Bench in the impugned judgment
clearly went wrong in holding that the two-Judge
Bench of this Court referred to by it had brought
about a total change in the position and on the
basis of those two judgments. Krishnaji's case
would be no more good law. The decision of a
Full Bench consisting of three Judges rendered in
Krishnaji's case was binding on a bench of equal
strength unless that decision had directly been
overruled by this Court or by necessary
implication became unsustainable. Admittedly
there is no overruling of Krishnaji's decision by
this Court and on the analysis indicated above it
cannot also be said that by necessary implication
the ratio therein supported by the direct authority
of this Court stood superseded. Judicial propriety
warrants that decisions of this Court must be
taken as wholly binding on the High Courts. That
is the necessary outcome of the tier system."
39. In view of the above discussion, this Court
holds that whatever reservations may exist and
might have even been voiced in Subhash Chandra
about the holding in S. Pushpa being contrary to
earlier Constitution Bench rulings in Marri,
Action Committee, Milind etc., it was not open to
a Division Bench of this court, in Delhi and State
Subordinate Selection Board v. Mukesh Kumar
(supra) to say that Subhash Chandra prevailed
particularly since S. Pushpa was by a larger three
member Bench. It is true that the concerns and
interpretation placed by Subhash Chandra flow
logically from a reading of the larger Supreme
Court Constitution Bench rulings. Nevertheless,
since this Court is bound by the doctrine of
precedent, and by virtue of Article 141 has to
follow the decision in Pushpa, as it deals squarely
with the issue concerning status of citizens
notified as scheduled castes from a state to a
Union Territory, it was not open, as it is not open
to this court even today, to disregard Pushpa. The
Court further notices that the correctness of
Subhash Chandra has been referred for decision
in the State of Uttaranchal case; the matter is
therefore at large, before the Constitution Bench,
which will by its judgment show the correct
approach. Till then, however, Pushpa prevails."
34. A more lucid enunciation of the legal principles
governing the theory of precedents appears in the
judgment of the Full Bench of the Allahabad High
Court in Rana Pratap Singh v. State of Uttar
Pradesh17;
"9. Reference may also be made to Maheshwar
Prasad v. Kanahaiya Lal,‟ (1975) 2 SCC 232 :
AIR 1975 SC 907, where it was said, "Certainty
of the law, consistency of rulings and comity of
courts -- all flowering from the same principle --
converge to the conclusion that a decision once
rendered must later bind like cases. We do not
intend to detract from the rule that, in exceptional
instances, where by obvious inadvertence or
oversight a judgment fails to notice a plain
statutory provision or obligatory authority
running counter to the reasoning and result
reached, it may not have the sway of binding
precedents. It should be a glaring case, an
obtrusive omission."
10. Finally, in Sundarjas Kanyalal Bhathija v.
The Collector, Thane, ((1989) 3 SCC 396 : AIR
1990 SC 261) it was held "One must remember
that pursuit of the law,‟ however glamorous it is,
has its own limitation on the Bench. In a multi-
judge court, the Judges are bound by precedents
and procedure. They could use their discretion
only when there is no declared principle to be
found, no rule and no authority."
14. The Full Bench in Pritam Kaur's case, AIR
1984 P&H 113 (supra), on its part, held, "It is
equally necessary to highlight that the binding
nature of precedents generally and of Full
Benches in particular, is the king-pin of our
judicial system. It is the bond that binds together
what otherwise might well become a thicket of
individualistic opinions resulting in a virtual
judicial anarchy. This is a self-imposed discipline
which rightly is the envy of other Schools of
Law." The Bench further added "The very use of
the word „binding‟ would indicate that it would
hold the field despite the fact that the Bench
obliged to follow the same may not itself be in
agreement at all with the view. It is a necessary
discipline of the : law that the judgments of the
superior Courts and of larger Benches have to be
followed unhesitatingly whatever doubts one may
individually entertain about their correctness. The
rationale for this is plain because to seek a
universal intellectual unanimity is an ideal too
Utopian to achieve. Consequently, the logic and
the rationale upon which the ratio of a larger
Bench is rested, are not matters open for
reconsideration. Negatively put, therefore, the
challenge to the rationale and reasoning of a
larger Bench is not a valid ground for unsettling it
and seeking a re-opening and reexamination of
the same thus putting the question in a flux
afresh."
15. The reference was answered in these terms,
"it would follow as a settled principle that the law
specifically laid down by the Full Bench is
binding upon the High Court within which it is
rendered and any and every veiled doubt with
regard thereto does not justify the reconsideration
thereof by a larger Bench and thus put the law in
a ferment afresh, The ratios of the Full Benches
are and should be rested on surer foundations and
are not to be blown away by every side wind. It is
only within the narrowest field that a judgment of
a larger Bench can be questioned for
reconsideration. One of the obvious reasons is,
where it is unequivocally manifest that its ratio
has been impliedly overruled or whittled down by
a subsequent judgment of the superior Court or a
larger Bench of the same Court. Secondly, where
it can be held with certainty that a co-equal Bench
has laid down the law directly contrary to the
same, and, thirdly, where it can be conclusively
said that the judgment of the larger Bench was
rendered per incuriam by altogether failing to
take notice of a clear-cut statutory provision or an
earlier binding precedent. It is normally within
these constricted parameters that a similar Bench
may suggest a reconsideration of the earlier view
and not otherwise. However, it is best in these
matters to be neither dogmatic nor exhaustive yet
the aforesaid categories are admittedly the well
accepted ones in which an othewise binding
precedent may be suggested for reconsideration".
16. On this aspect another relevant judicial
pronouncement comes in Ambika Prasad v. State
of U.P. ((1980) 3 SCC 719 : AIR 1980 SC 1762).
There, in the context of the U.P. Imposition of
Ceiling on Land Holdings Act, 1961, while
dealing with the question as to when
reconsideration of a judicial precedent is
permissible. Krishna Iyer, J. so aptly put it "Every
new discovery or argumentative novelty cannot
undo or compel reconsideration of a binding
precedent".
17. Further, "It is wise to remember that fatal
flaws silenced by earlier rulings cannot survive
after death because a decision does not lose its
authority „merely because it was badly argued,
inadequately considered and fallaciously
reasoned‟ (Salmond Jurisprudence, page 215,
11th Edition)".
18. Implicit, thus, in the disregard by a single
Judge or a Division Bench of a binding judicial
precedent of a larger Bench or seeking to doubt
its correctness for reasons and in circumstances
other than those spelt out in Pritam Kaur‟ s case
AIR 1984 P&H 113 (supra) is what cannot but be
treated as going counter to the discipline of law
so essential to abide by, for any efficient system of
law to function, if not it virtually smacking of
judicial impropriety. In other words, it is only
within the narrow compass of the rule as stated by
the Full Bench in Pritam Kaur's case, AIR 1984
P&H 113 that reconsideration of a judgment of a
larger Bench can be sought and as has been so
expressively put there, such judgments are not "to
be blown away by every side wind"."
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 v. K.R. Builders Pvt.
Ltd.18, HTIL Corporation B.V v. Ajay Kohli19 as well
as in Print Pak Machinery Ltd. v. Jay Kay Papers
Converters20. 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 5.
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 Gautum 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
Gautum 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.
41. The Court thus comes to conclude that the
principles enunciated in Ram Sarup Lugani would
continue to bind and govern the interpretation liable
to be accorded to the Rules. The Court has firstly
found that there exists no distinction between Rules 4
and 5 which may be countenanced in law as
justifying Rule 4 being interpreted or understood
differently. In any case the binding decisions
rendered on the subject constrain the Court to desist
from treading down this path. The Court, bound by
the rule of precedent, is of the considered opinion
that such a review or a reconsideration would be
impermissible in law. Since the Court has found that
both coordinate Bench as well as Benches of a larger
coram have conclusively settled all issues that stand
raised, no reference is also warranted."
(emphasis supplied)
11. This Court is in full agreement with the conclusion of the Judgment of
the Coordinate Bench of this Court in Charu Agarwal (supra) that there is no
distinction between Rule 4 & 5. This Court is equally bound by the
Judgment of this Court in Ram Sarup Lugani (supra) and is, therefore, of the
opinion that the Order of the learned Joint Registrar does not warrant any
interference.
12. Accordingly, the Appeals are dismissed.
SUBRAMONIUM PRASAD, J
JANUARY 23, 2025
Rahul
