Delhi High Court - Orders
Ashish Bhalla vs Sunil Gandhi on 11 January, 2023
Author: Yashwant Varma
Bench: Yashwant Varma
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 341/2019, I.A. 9107/2019, I.A. 15226/2019
ASHISH BHALLA ..... Plaintiff
Through: Ms. Nistha Gupta and Mr.
Kanav Agarwal, Advs.
versus
SUNIL GANDHI ..... Defendant
Through: Mr. Neeraj Kumar and Mr.
Harsh Vardhan Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 11.01.2023 I.A. No. ....../2023 (to be numbered) (for delay in filing appeal) and I.A. No. ......./2023 (to be numbered) (for delay in re-filing appeal) Bearing in mind the disclosures made, the delay of 5 days in the filing the appeal and the delay of 431 days in re-filing the appeal is condoned.
The applications shall stand disposed of.
O.A. No. ....../2023 (to be numbered)
1. This appeal is directed against an order of 27 February 2020 passed by the Joint Registrar refusing the application made by the plaintiff petitioner for being permitted to file replication. The Court notes from the recordal of facts in the order of the Joint Registrar and it is so admitted that the written statement was filed and taken on record on 23 January 2020. The plaintiff had in terms of the Delhi High Court (Original Side) Rules, 2018 [2018 Rules] a maximum period of 45 days from the same to file a replication. The Joint Registrar has noticed that the period of 45 days had already expired. In view of the aforesaid, it has relied upon the decision rendered in Signature Not Verified Digitally Signed By:NEHA Signing Date:13.01.2023 17:17:31 Odeon Builders Pvt. Ltd. vs. NBCC (India) Ltd. [2019 SCC OnLine DeL 10795] and refused to accord further time to the plaintiff to file a replication.
2. The Court notes that the interpretation to be accorded upon Rule 5 of the 2018 Rules is an issue which is no longer res integra and stands concluded in light of the judgment rendered by the Division Bench of the Court in Ram Sarup Lugani and Anr. vs. Nirmal Lugani and Ors. [2020 SCC OnLine Del 1353].
3. Dealing with the power of the Court to expand the period of time which is stipulated in Rule 5, the Division Bench had held thus:-
"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 Signature Not Verified the Registrar, there is no such embargo placed on the court.Digitally Signed By:NEHA Signing Date:13.01.2023 17:17:31
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.
27. Since the language of Rule 5 shows that the intention of the Rule making Authority was to exclude the provisions of the Limitation Act, 1963, giving no power to the court to condone any delay beyond the period of 45 days for accepting the replication, learned counsel for the appellants/plaintiffs cannot be heard to state that Rule 16 could have been very well invoked by the learned Single Judge to take on record the belatedly filed replication. The sanctity of the period of 30 days, extendable by another period of 15 days cannot be diluted by giving such an interpretation. In view of the specific provision and the timeline stated in Rule 5 of Chapter VII, that precludes the court from extending the timeline beyond 45 days for accepting the replication, the argument advanced by Mr. Mehta, learned counsel for the appellants/plaintiffs that notwithstanding Rule 5, provisions of Rule 16 and Rule 14 of Chapter I of the DHC Rules empower the court to take on record, the replication even beyond the period of 45 days and ought to have been resorted to by the learned Single Judge, cannot be accepted.
31. In view of the aforesaid discussion, it is held that in case of any inconsistency, the provisions of the Delhi High Court (Original Side) Rules, 2018 will prevail over the Civil Procedure Code. The inherent powers contemplated in Rule 16 are not to be exercised to overcome the period of limitation expressly prescribed in Rule 5 for filing the replication. Nor can Rule 5 be circumvented by invoking any other provision or even the inherent powers of the court, contrary to the scheme of the Rules. The phrase, "but not thereafter" used in Rule 5 makes it crystal clear that the Rule is mandatory in nature and the court cannot permit the replication to be taken on the record after the plaintiff has exhausted the maximum prescribed period of 45 days. Any other interpretation will result in causing violence to the DHC Rules."Signature Not Verified Digitally Signed By:NEHA Signing Date:13.01.2023 17:17:31
4. In view of the aforesaid, this Court finds no merit in the appeal. It shall stand dismissed.
CS(OS) 341/2019, I.A. 9107/2019, I.A. 15226/2019
5. The parties shall place their proposed issues on the record on or before the next date fixed.
6. List before the Joint Registrar on 01.03.2023.
YASHWANT VARMA, J.
JANUARY 11, 2023 SU Signature Not Verified Digitally Signed By:NEHA Signing Date:13.01.2023 17:17:31