Ms Charu Agrawal vs Mr Alok Kalia & Ors. on 1 March, 2023

[Cites 70, Cited by 2]

Delhi High Court

Ms Charu Agrawal vs Mr Alok Kalia & Ors. on 1 March, 2023

1. The present Chamber Appeal has been preferred assailing an order passed by the Joint Registrar dated 06 January 2023 taking off the record the written statement which had been filed by the Appellant/ Defendant No. 1. The appeal rests principally on the ground that Defendant No. 1 had not been served in accordance with Order V of the Civil Procedure Code, 19081 and that the Joint 1 the Code CS(OS) 214/2022 Page 1 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 Registrar has taken a hypertechnical view disregarding the fact that the proceedings related to a non-commercial suit. It was also urged that the view as taken by the Joint Registrar is contrary to the decisions delivered by the Supreme Court in Bharat Kalra v. Raj Kishan Chabra2 and Kailash v. Nanhku3. The submission essentially was that the reasoning accorded is not only contrary to the decisions aforenoted but also to the decision of the Supreme Court in Desh Raj v. Balkishan4 which had, despite the peremptory language employed in Order VIII Rule 1 of the Code, taken the position that the discretion as vested in a Court to condone the delay that may have occurred in filing of a written statement would, notwithstanding the above, be available to be exercised. Learned counsel has also placed reliance on a recent decision rendered by a learned Judge of this Court in Amarendra Dhari Singh v. R.C. Nursery (P) Ltd.5 in which on an ultimate analysis of Rules 4 and 5 contained in Chapter VII of the Delhi High Court (Original Side) Rules, 20186, the Court had held that a written statement could be filed even beyond the maximum period of 120 days as prescribed in Rule 4 in light of the discretion vested in the Registrar to close the right to file a written statement, if circumstances so warrant.

2. For the purposes of the disposal of the instant appeal, the following essential facts as they stand recorded in the order of 06 2 2022 SCC OnLine SC 613 3 (2005) 4 SCC 480 4 (2020) 2 SCC 708 5 2023 SCC OnLine Del 84 6 The Rules CS(OS) 214/2022 Page 2 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 January 2023 may be noticed. The suit is stated to have been instituted on or about 13 April 2022. On 18 April 2022, when the matter first came before Court, summons were issued on the suit. Additionally, notice was also issued on the application seeking ad interim injunction and an ex parte restraint order restraining Defendant Nos. 1 and 2 from selling, alienating, parting with or creating any third-party rights or changing the nature and title of the suit property also came to be passed. The Plaintiff was also directed to ensure compliance with the provisions of Order XXXIX Rule 3 of the Code. When the matter was thereafter taken up for consideration before the Joint Registrar on 20 July 2022, it was noted that the Plaintiff had taken due steps in terms of the earlier order passed and that an affidavit of compliance had also been filed. The Joint Registrar further noted that written statements had not been filed by Defendant Nos. 3, 6 and 5. It also took on board the statement made on behalf of the Plaintiff that its counsel had been served with a copy of a written statement filed on behalf of Defendant No. 5. The Joint Registrar also noted the submissions addressed on behalf of the Plaintiff that Defendant Nos. 1 and 2 stood duly served through speed post. Directions were accordingly issued for an affidavit of service being filed in this respect.

3. On 08 August 2022, the Joint Registrar noted that Defendant No. 1 stood duly served through speed post. When the matter was placed before Court on 16 August 2022, Defendant Nos. 3, 4 and 6 CS(OS) 214/2022 Page 3 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 were represented by counsel and they were consequently granted time to file their written statement as well as replies on the pending I.As.

4. On 19 October 2022, when the matter was taken up for consideration before the Joint Registrar, it was noted that the written statement filed on behalf of Defendant Nos. 1 and 4 were reported to be under objection. Accordingly, they were directed to take appropriate steps to attend to the objection as noted and to ensure that they were placed on the record.

5. On 06 January 2023, the Joint Registrar found that the written statement and documents along with affidavit of admission and denial had been duly filed on behalf of Defendant No. 1. It however noticed an objection taken on behalf of the Plaintiff that the said written statement is liable to be taken off the record since it was not accompanied with any application for condonation of delay. On behalf of the said Defendant, it was urged that it had not been served with the summons of the suit and thus there was no requirement of filing any application for condonation of delay. It was further asserted that the said Defendant No. 1 had only been provided with the advance copy of the paper book and that till date summons of the suit had not been served.

6. An objection was initially taken with learned counsel for Defendant No. 1 urging that summons appear to have been sent on an email address which was neither used regularly by the Defendant nor was the same the official email id. The aforesaid assertions were CS(OS) 214/2022 Page 4 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 opposed on behalf of the Plaintiff with learned counsel asserting that he had duly filed the affidavit of compliance as required under Order XXXIX Rule 3 of the Code and that the paper book stood duly served. He is also stated to have asserted that process fee had also been duly supplied. Reference was also made to the tracking report with respect to service via speed post which indicated that the Defendant No. 1 stood duly served on 20 April 2022.

7. On a consideration of the aforesaid submissions, the Joint Registrar firstly noticed that the summons of the suit for service upon the Defendants appear to have been prepared by the Registry on 20 July 2022. The process server is stated to have sent summons to Defendant No. 1 via email on 20 May 2022. The objection taken at the behest of Defendant No. 1 with respect to service via email was negatived with the Joint Registrar noting that the Defendant No. 1 had failed to deny service of the summons via email on 20 May 2022 and thus he was obliged to file a written statement within 30 days from that date. He also noticed that the written statement was filed for the first time on 13 October 2022 and subsequently refiled on 27 October 2022. However, and since the written statement according to the Joint Registrar, had been filed beyond the maximum period as prescribed under Rule 4 falling in Chapter VII when computed from 21 May 2022, the same was liable to be taken off the record. It is aggrieved by the aforesaid order that the instant chamber appeal has come to be preferred.

CS(OS) 214/2022 Page 5 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59

Neutral Citation Number: 2023/DHC/001454

8. In order to appreciate the submissions which were addressed, it would firstly be appropriate to set out Rules 4 and 5 as comprised in Chapter VII in tabular form hereunder: -

                                       "RULE 4                                RULE 5

                          4. Extension of time for filing        5. Replication.- The replication, if
                          written statement.--If the Court        any, shall be filed within 30 days
                          is satisfied that the defendant was    of receipt of the written statement.
                                                                 If the Court is satisfied that the
                          prevented by sufficient cause for
                                                                 plaintiff was prevented by
                          exceptional and unavoidable            sufficient cause for exceptional
                          reasons in filing the written          and unavoidable reasons in filing
                          statement within 30 days, it may       the replication within 30 days, it
                          extend the time for filing the same    may extend the time for filing the
                          by a further period not exceeding      same by a further period not
                          90 days, but not thereafter. For       exceeding 15 days but not
                                                                 thereafter. For such extension, the
                          such extension of time, the party
                                                                 plaintiff shall be burdened with
                          in delay shall be burdened with        costs, as deemed appropriate. The
                          costs as deemed appropriate. The       replication shall not be taken on
                          written statement shall not be         record, unless such costs have
                          taken on record unless such costs      been paid/ deposited. In case no
                          have been paid/ deposited. In case     replication is filed within the
                          the defendant fails to file the        extended time also, the Registrar
                                                                 shall forthwith place the matter for
                          affidavit of admission/ denial of
                                                                 appropriate orders before the
                          documents filed by the plaintiff,      Court. An advance copy of the
                          the documents filed by the             replication together with legible
                          plaintiff shall be deemed to be        copies of all documents in
                          admitted. In case, no written          possession and power of plaintiff,
                          statement is filed within the          that it seeks to file along with the
                                                                 replication, shall be served on the
                          extended time also, the Registrar
                                                                 defendant and the replication
                          may pass orders for closing the        together with the said documents

right to file the written statement. shall not be accepted unless it contains an endorsement of service signed by the defendant/ his Advocate."

CS(OS) 214/2022 Page 6 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59

Neutral Citation Number: 2023/DHC/001454

9. The provisions as embodied under Rules 4 and 5 and insofar as they make provisions for the filing of a written statement and replication respectively, appear to have fallen for consideration initially before a learned Judge in Gautam Gambhir and Ors. vs. Jai Ambay Traders and Ors.7 The said decision was dealing with Chamber Appeals filed by both the Defendants as well as the Plaintiff questioning orders passed whereby the right to file a written statement as well as replication had been closed. Dealing with the question of whether the delay caused in the filing of a written statement or replication could be condoned even after the maximum period prescribed under the Rules, the learned Judge firstly noted the issues which arose for consideration in the following terms: -

"32. Having heard the learned counsel for the parties, in both the cases, the issue, which arises for consideration is whether the delay in filing the written statement over and above 120 days by defendant Nos. 2, 3 and 6 and delay in filing the written statement by defendant No. 4 over and above 30 days from the date of service of summons needs to be condoned and the written statement is required to be taken on record.

33. A similar issue arises in Chamber Appeal bearing O.A. No. 122/2019 that whether the learned Joint Registrar had rightly closed the right of the plaintiff in CS(OS) 182/2019 in filing the replication being beyond a period of 45 days, as prescribed in the Rules of 2018."

10. Proceeding then to deal with the question which stood posited, the learned Judge held as follows: -

MANU/DE/1509/2020 CS(OS) 214/2022 Page 7 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 "35. I may, at this stage, mention that I have recently in Odeon Builders Pvt. Ltd. (supra) has decided that the learned Joint Registrar / Court cannot extended the time beyond 45 days for filing the replication. The reasoning given by me was to the following effect:-

"9. Having heard and considered the rival submissions made by the learned counsel for the parties, the issue which falls for consideration in this case is, whether the learned Joint Registrar was right in closing the right of the appellant / plaintiff to file replication and affidavit of admission / denial of documents. To answer the issue, it is necessary to reproduce here the relevant Rule 5 of Chapter VII of Delhi High Court (Original Side Rules), 2018, which reads as under:

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.

10. Mr. Tandon, learned counsel for the plaintiff had relied upon Rules 14 and 16 of Chapter-I of Delhi High Court (Original Side Rules), 2018 which I have already re-produced above. Perusal of Rule 5 clearly reveals that the period within which replication could be filed is 30 days and 15 days as extended time. The words "not thereafter' under Rule 5 are of some significance. A similar provision of this nature in the context of Arbitration and Conciliation Act, 1996 had come up for consideration before the CS(OS) 214/2022 Page 8 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 Supreme Court in the case of Union of India v. Popular Construction Company MANU/SC/0613/2001 : (2001) 8 SCC 470 wherein the court was considering the issue whether the provisions of Section 5 of the Limitation Act shall apply to a petition under Section 34 of the Arbitration and Conciliation Act, 1996, more specifically in view of Section 34, sub-section (3) has held as under: -

"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."

(emphasis supplied)

11. On similar lines, by relying upon its opinion in Popular Construction Co. (supra), the Supreme Court has in the case of P. Radha Bai and Ors. V. P. Ashok Kumar and Ors.

MANU/SC/1063/2018: 2018 (5) ARBLR 204 (SC), wherein the issue which fell for consideration was whether Section 17 of the Limitation Act, is applicable while determining the limitation period under Section 34(3) of the Arbitration and Conciliation Act, the Court has in Para 37 held as under:

"37. This Court in Popular Construction Case (supra) at page 474 followed the same approach when it relied on the phrase "but not thereafter" to hold that Section 5 of the Limitation Act was expressly excluded.

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, CS(OS) 214/2022 Page 9 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result."

12. So it must be held by including the words "not thereafter" in Rule 5 of Chapter II of Rules, the rule making authority intended to exclude grant of further time for filing the replication and affidavit of admission / denial of documents after the expiry of period of 45 days. The plea of Mr. Tandon was that in view of Rule 14 and 16 of Chapter I, the court has discretion to grant further time over and above what has been prescribed in Rule 5 of Chapter VII of the Rules, I am afraid such a plea is not acceptable. Firstly, Rule 14 and 16 cannot be read in any manner to make the words "not thereafter" in Rule 5 of Chapter VII otiose. In any case, it is a settled position of law in terms of the Judgment of the Supreme Court in Padam Sen and Ors. v. State of Uttar Pradesh MANU/SC/0065/1960: 1961 ALT 84 (SC) that the inherent power of the court is in addition to the power specifically conferred on the court by the Code (Rules in this case). It was held by the Supreme Court that the inherent powers are complementary to those powers and the court held that it must be held that the Court is free to exercise them for the purpose mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the code or against the intentions of the Legislature. In other words, it is well- recognized that inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the code."

38. As stated above, it is the plea of Mr. Mehta that CPC applies differently to commercial suits and differently to ordinary suits. In other words, certain amendments to the CPC applies because of the Commercial Courts Act and the ordinary suit is governed by the provisions of the Rules of 2018.

39. As I have already noted the broad submissions made by the learned counsel for the parties, at the outset, I may state that learned counsel for the plaintiff in CS(OS) 149/2018 submitted in view of the judgment in Iridium India Telecom Ltd. (supra) that the Rules of 2018 framed by this Court shall override the provisions of the CPC. In fact Mr. Mehta has conceded to the said position that the Rules of 2018 shall prevail over the provisions of the CPC.

40. In Iridium India Telecom Ltd. (supra), the Supreme Court has traced the history of the charter establishing High Courts in the CS(OS) 214/2022 Page 10 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 country and after exhaustive consideration of various aspects has, inter-alia, held that the rules framed by High Courts would prevail over the provisions of the CPC, even if the said rules are inconsistent with the Code. The contention that the Letters Patent and other rules framed by High Courts to regulate its own procedure are in nature of subordinate or delegated legislation and, therefore, cannot override the legislative mandate and substantive provisions of CPC was rejected. The Supreme Court in this regard referred to Section 129 of the CPC and the object and purpose of the enactment of the said Code and distinction as drawn between proceedings before civil courts and proceedings on the original side of the chartered High Courts. It was further held subsequent amendments and even the last amendment of the Code in the year 2002 does not affect this principle and the rules will override and are binding even if they are contrary or inconsistent with the Code.

41. Even the Full Bench of this Court, similarly in Akash Gupta (supra), on which reliance has been placed, had stated as under:-

"9. The Delhi High Court in the case of Printpak Machinery v. Jay Kay Paper Congeners reported in MANU/DE/0074/1979:

AIR, 1979 Delhi 271 has also held that the non-obstinate clause in Section 129 of the Code left untouched the original side rules of High Court whenever framed and the said rules would prevail over the Code.

10. It is not disputed that Rules 3 and 4 of the Rules have been made under Section 7 of the Act. The said rules have been framed under Sections 122 and 129 of the Code and under Rule 19 of Chapter-I of the Rules. Original Side proceedings of the High Court are to be conducted as per the Rules and the Code is applicable when the rules are silent.

Rule 19 of Chapter I of the Rules reads as under: -

19. Miscellaneous - Except to the extent otherwise provided in these rules, the provisions of the Civil Procedure Code shall apply to all proceedings on original side."

42. I must also state here that wherever the Rules are silent, the provisions of PC shall hold the field.

43. Having said that, in these cases, this Court is concerned with the filing of the written statement / replication. I may state here, this Court had framed the Original Side Rules in the year 1967 (Old Rules). Rule 3 of Chapter-VI of the Old Rules refers to the CS(OS) 214/2022 Page 11 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 extension of time for filing the written statement. The same is reproduced as under: -

"3. Extension of time for filling written statement -Where the defendant fails to file written statement within a period of 30 days as stated in Rule 2(ji) 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."

44. I may also state that there was no provision in the Old Rules, which refer to the filing of the replication. It is also noted that this Court and the Supreme Court has interpreted Order VIII Rule 1 of CPC and Rule 3 of Chapter-VI of Old Rules to mean the period of 90 days for filing the written statement is not mandatory and for good, valid and sufficient cause being shown, the time for filing written statement beyond 90 days can be extended. The position under the Old Rules has undergone a change with the framing of Rules of 2018 where a specific provision (Chapter-VIl, Rule 5) with regard to filing of the replication has been introduced and a time period extendable up to 120 days for filing of written statement (Chapter-VII, Rule 4)."

11. From a reading of the aforesaid conclusions, it is manifest that the learned Judge had found that the Rules framed by this Court stood untouched by virtue of Sections 122 and 129 of the Code. It also noted the decision of the Supreme Court in Iridium India Telecom Limited vs. Motorola Inc.8 which while tracing the history of the Charters establishing High Courts in the country had held that Rules framed by High Courts would prevail over the provisions of the Code even if they be inconsistent therewith.

AIR 2005 SC 514 CS(OS) 214/2022 Page 12 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454

12. The learned Judge then proceeded to consider whether the judgments rendered in the backdrop of Order VIII Rule 1 of the Code would have any application. Proceeding to rule upon the same, the Court held as follows: -

"47. Similarly, in Desh Raj (supra), the Supreme Court by referring to its judgment in Atcom Technologies Ltd. VS. Y.A. Chunawala & Co., MANU/SC/0508/2018: (2018) 6 SCC 639, held that Order VIII Rule 1 CPC continues to be directory and does not do away with inherent discretion of the Courts to condone certain delays. It is to be noted that in the aforesaid judgment of Desh Raj (supra), the Supreme Court was concerned with the issue of closing the right of the defendant in filing written statement under Order VIII Rule 1 instituted in trial court subordinate to the High Court and the Supreme Court was not concerned with the effect of the Rules of 2018 framed by this Court. Hence, the judgment of Desh Raj (supra) referred to by the learned counsel for the defendant shall not be applicable in the facts of this case. Similarly, in Atcom (supra) also the Supreme Court was concerned with the provisions of CPC.

48. Now coming to the issue of delay, Rule 4 of Chapter VII of the Rules of 2018, which is reproduced above, is very clear and on reading, the following position emerges:-

(i) the extension of the time beyond 30 days shall be for further period as 'not exceeding' 90 days and 'but not thereafter'

(ii) In case the written statement is not filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement.

49. From the above, it is seen that the maximum period permissible for filing written statement is 120 days and not beyond that. In other words, the Rule fixes an outer limit for filing the written statement. The words 'but not thereafter' have relevance and they do indicate that the period cannot be extended further. Further, the Rule also mandates, if the written statement is not filed then the Registrar may pass orders closing the right. This part of the Rule only gives discretion to the Registrar to give a declaration of the fact that the right of the defendant to file written statement has been closed/forfeited. In fact, this part of the Rule depicts the consequence of not filing the written statement within the extended time. In this regard, I may reproduce paras 13 and 14 of the CS(OS) 214/2022 Page 13 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 judgment in SCG Contracts India Pvt. Ltd. (supra), wherein the Supreme Court inter-alia held that where in any provision (Order VIII Rule 1), the consequences are clearly laid down then the same could be held as mandatory. In fact, the Supreme Court held, the consequence like, non-extension of any further time and the fact that the Court shall not allow a written statement to be taken on record, as some examples in that regard.

"13. Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of the CPC will have to be held to be mandatory. [See Oku Tech Private Limited vs. Sangeet Agarwal & Ors. by a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics vs. Oasis Commercial Pvt. Ltd.

14. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order VIII Rule 1 on the filing of written statement under Order VIII Rule 1 has now been set at naught."

50. In Odeon Builders Pvt. Ltd. (surpa), this Court had interpreted the words 'but not thereafter' as found mentioned in Rule 5 of Chapter VII of the Rules of 2018 in para 12 in the following manner:-

"12. So it must be held by including the words "not thereafter' in Rule 5 of Chapter VII of Rules, the rule making authority intended to exclude grant of further time for filing the replication and affidavit of admission / denial of documents after the expiry of period of 45 days. The plea of Mr. Tandon was that in view of Rule 14 and 16 of Chapter I, the court has discretion to grant further time over and above what has been prescribed in Rule 5 of Chapter VII of the Rules, I am afraid such a plea is not acceptable. Firstly, Rule 14 and 16 cannot be read in any manner to make the words "not thereafter" in Rule 5 of Chapter VII otiose. In any case, it is a settled position of law in terms of the Judgment of the Supreme CS(OS) 214/2022 Page 14 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 Court in Padam Sen and Ors. v. State of Uttar Pradesh MANU/SC/0065/1960: 1961 ALT 84 (SC) that the inherent power of the court is in addition to the power specifically conferred on the court by the code (Rules in this case). It was held by the Supreme Court that the inherent powers are complementary to those powers and the court held that it must be held that the Court is free to exercise them for the purpose mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the code or against the intentions of the Legislature. In other words, it is well-recognized that inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the code."

51. The Apex Court in a Constitutional Bench decision in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. MANU/SC/0272/2020 : AIR 2020 1267 while adjudicating as to whether under Section 13(2) (a) of the Consumer Protection Act, 1986 ('CPA', for short), the District Forum has the power to extend the time for filing the response beyond the period of 15 days in addition to 30 days, deliberated at length the mandatory character of the said provision. Section 13(2) (a) of the CPA reads as under:

"Section 13. Procedure on admission of complaint.-

Xxx xxx xxx (2)..

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

...."

53. Rule 4 of Chapter VII also contains the phrase 'period not exceeding', similar to Section 13(2) (a) of the CPA. Inference can be drawn from New India Assurance (supra) to hold that, in addition to 'but not thereafter', Rule 4 of Chapter VII contains the phrase (period not exceeding' having a mandatory flannel.

54. The said interpretations hold good for Rule 4 of Chapter VI of the Rules of 2018, which also contemplates extension of time for CS(OS) 214/2022 Page 15 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 filing written statement beyond 30 days, for a 'period not exceeding' 90 days 'but not thereafter'. Moreover, the Rules of 2018 came into effect after the Commercial Courts Act was notified and it can very well be presumed that a total of 120 days (30+90) was granted for filing the written statement in the Rules of 2018, drawing spirit from the upper limit amongst the time periods provided in Order VIII Rule 1 and its proviso (applicable to commercial suits), to make it applicable to all suits filed in the Original Side of this Court."

13. An identical question then came up for consideration before a Division Bench of the Court in Ram Sarup Lugani v. Nirmal Lugani9. Ram Sarup Lugani was dealing with the correctness of a view taken by a learned Judge of the Court dismissing a Chamber Appeal and upholding an order passed by the Joint Registrar closing the right of the Plaintiff to file a replication. Dealing with the question which stood posited, the Division Bench held as under: -

"15. This is not the first time that the phrase, "but not thereafter"

have been used in the statute. The said peremptory 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.

2020 SCC OnLine Del 1353 CS(OS) 214/2022 Page 16 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 "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 CS(OS) 214/2022 Page 17 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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.

CS(OS) 214/2022 Page 18 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59

Neutral Citation Number: 2023/DHC/001454 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)

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 CS(OS) 214/2022 Page 19 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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 CS(OS) 214/2022 Page 20 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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."

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.

15. Proceeding further to deal with the submission that notwithstanding the expiry of the maximum period prescribed, the Registrar would still have the discretion to condone the delay and take on board the replication, the Division Bench observed as under: -

"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 CS(OS) 214/2022 Page 21 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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 CS(OS) 214/2022 Page 22 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454

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)"

CS(OS) 214/2022 Page 23 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59

Neutral Citation Number: 2023/DHC/001454

16. Another argument which was addressed before the Division Bench in Ram Sarup Lugani was the assertion of flexibility and discretion as vesting in a Court and traceable to the provisions contained in Order VIII of the Code and the judgment of the Supreme Court in Desh Raj. While noticing the earlier decisions rendered by the Division Benches which had held that the Rules framed by the Court would prevail over those contained in the Code, the Court in Ram Sarup Lugani held as follows: -

"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 CS(OS) 214/2022 Page 24 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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) CS(OS) 214/2022 Page 25 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454

29. In Print Pak Machinery Ltd. v. Jay Kay Papers Converters, reported as AIR 1979 Del 217, answering a reference placed before it for reconciling the consistency between the scheme of Order 37 of the CPC, as amended in 1976 and the provisions Chapter XV of the Delhi High Court (Original Side) Rules, 1967 that deals with "summary suits", a Full Bench of this court held that the Rules will take a precedence over the Code and observed as under:--

"8. I think, the question is really concluded by Section 129 of the Code. It reads:

"Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code."

No doubt the closing words will not save the Original Side Rules of this Court, as they were not „in force at the commencement‟ of the Code. But, the opening words „Notwithstanding anything in this Code‟ are self-effacing, and subordinate the Code to rules made by a High Court for its original side at any time. The cumulative effect of those two parts of the section is to leave untouched the original rules of a High Court whether framed before or after 1908. Since section 2 (1) says that the „"Code" includes rules‟, the original side rules will prevail both over the body of the Code and the First Schedule. Therefore, the statement in Order 37 rule 1(a) that „This order shall apply to........High Courts‟ must be read subject to section 129.

9. These propositions are old and well-established. In Newab Behram Jung v. Haji Sultan Ali Shustry, ILR 27 Bom 572 (1) it was held that, in view of section 129, a rule in the Code did not apply as it was inconsistent with a rule in the Bombay High Court Rules. Similarly, in Virupaksha Rao Naidu v. M. Ranganayaki Ammal, AIR 1925 Mad 1132 (2), it was said:

„Section 129 of the Code gives the High Court the power to make rules, regulating the procedure of the Original Side and nothing in the Code will affect such rules. The effect is that if the rules of the High Court, Original Side, and the Code are inconsistent, the rules prevail.‟ Many cases from Calcutta hold the same : Umeshchandra CS(OS) 214/2022 Page 26 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 Banerji v. Kunjilal Biswas, AIR 1930 Cal 685 (3), Gowal Das Sidany v. Luchmi Chand Jhawar, AIR 1930 Cal 324 (4); In re :

Ram Dayal De, AIR 1932 Cal 1 (5); Shaw & Co. v. B. Shamaldas & Co., AIR 1954 Cal 369 (6) and Manickchand Durgaprasad v. Pratabmull Rameswar, AIR 1961 Cal 483 (7). And, so does the High Court of Allahabad: Mool Chand v. Kamta Prasad, AIR 1961 All 595 (8).

11. The conclusion thus drawn from section 129 can also be reached from section 4(1) of the Code, though not in the manner that was suggested in argument. Section 4(1) of the Code provides that:

„In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.‟ It has been held that rules made by a High Court or the Supreme Court to regulate their procedure and practice are a „special law‟ as they deal with a particular subject: The Union of India v. Ram Kanwar, AIR 1962 SC 247 (11); Punjab Co-operative Bank Ltd., Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. (in liquidation), AIR 1941 Lah 257 (12) and The Deities of Sri. Audinarayana Swamy and Anjenayaswami Temples of Donepudi v. R. Hanumacharyulu, AIR 1962 AP 245 (13). Nevertheless, the Original Side Rules of Delhi High Court would not be protected by section 4(1) of the Code. Only those „special laws‟ are saved which are „now in force‟, which means 1908. But, they are a „special form of procedure prescribed‟ by or under a law „for the time being in force‟, and would be covered on that account. There is no „specific provision to the contrary‟ and the result is that nothing in the Code „shall be deemed to limit or otherwise affect‟ anything in the Original Side Rules."

(emphasis supplied)"

17. The argument of inherent powers vesting with the court was also negated as would be evident from the following observations: -

"30. To answer the last plea taken by Mr. Mehta, learned counsel for the appellants/plaintiffs that a Constitutional Court cannot be CS(OS) 214/2022 Page 27 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 denuded of the power to condone the delay in filing the replication even if the power of the High Court to condone delay in relation to periods prescribed in the DHC Rules has been circumscribed, we need not travel beyond Pallav Sheth v. Custodian, reported as (2001) 7 SCC 549, where the Supreme Court has observed as under:

"31. This Court has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance with law, if any, enacted by the legislature, it would stand to reason that the power under Article 129 and /or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously."

18. The Division Bench ultimately framed its conclusions in the following terms: -

"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."

19. For the sake of completeness of a review of the legal position, it would be pertinent to refer to certain other decisions handed down by the Division Benches of our Court and dealing with the provisions of Rules 4 and 5. In Esha Gupta vs. Rohit Vig10, a judgment rendered just a few months before Ram Sarup Lugani, the Division Bench 10 FAO(OS) 2/2020 CS(OS) 214/2022 Page 28 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 while dealing with an identical situation of a written statement having been filed beyond the time prescribed held as under: -

"7. It must be noticed at this stage that the Appellant has also referred to certain instructions given by her to her lawyers regarding the preparation of the written statement. She has inter alia averred that "due to one inadvertent reason or the other, the written statement could not be filed." However, the Court does not wish to examine this aspect of the matter but would confine itself to examining whether the reasons given by the Appellant/Defendant herein are sufficient for the Court to condone the delay.

8. What weighs with the Court in addition to the documents produced adduced and submissions made, is that her proposed written statement is ready. A copy thereof has been enclosed as Annexure A-16 to the present appeal. In other words, if the present appeal was to be allowed, the Appellant/Defendant is in a position to file her written statement, as she proposes, straightaway, without seeking any further time. The second factor that weighs with the Court is that given the nature of the suit, it would be in fact be in the interest of the Plaintiff to know as to what the stand of the Defendant is, rather than a situation where there is no written statement at all. Thirdly, in the circumstances, the impugned order was passed just five days after the expiry of the deadline to file the written statement, and before the filing of the present appeal, i.e. by 19th December, 2019, the Appellant/Defendant was ready with the proposed written statement. Therefore, the bona fides of the Appellant/Defendant, as far as her willingness to file the written statement is concerned, are evident. The Court, therefore, refrains from expressing any opinion on the truthfulness or otherwise of the other assertions of the Appellant.

9. This Court is also guided by the recent decision dated 20th January, 2020 of the Supreme Court in Civil Appeal No. 433/2020 (Desh Raj v Balkishan), where, in dealing with the issue of the condonation of delay in filing written statements that do not fall within the ambit of the CC Act, it was observed in paragraph 16 as under:

"16. However, it would be again said that although the unamended Order VIII Rule 1 of CPC is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the list. The legislative objective behind prescription of CS(OS) 214/2022 Page 29 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 timelines under the CPC must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion of Courts, like the ability to condone delays under Order VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay."

10. In the peculiar facts referred to above, and without expressing any view on the correctness or otherwise of the assertions of the Appellant/Defendant, vis-à-vis, the conduct of her counsel, this Court considers it appropriate to put the Appellant/Defendant to terms while permitting her to file the proposed written statement, as enclosed with the present appeal as Annexure A-16."

20. As would be evident from the aforesaid passages as appearing in the decision of Esha Gupta, the Court had on due consideration of the principles as enunciated in Desh Raj relating to Order VIII permitted the filing of the written statement despite the peremptory language employed in Rule 4. It must however be noted that Esha Gupta failed to notice the earlier Division Bench decisions which had recognised the primacy of the Rules over the provisions of the Code.

21. Again, in Tushar Bansal v. Jai Ambey Traders11, a similar question fell for consideration of yet another Division Bench. In the aforesaid case, however, the Court taking on board the concession made on behalf of the Plaintiff in the suit proceeded to dispose of the appeal in the following terms: -

"We have heard learned counsel for the parties and perused the record. Learned counsel for the respondent No.5 (plaintiff in the suit) fairly does not oppose the appellant‟s prayer for condonation of delay in filing the written statement. In the light of this stand 11 FAO (OS) 55/2020 CS(OS) 214/2022 Page 30 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 taken by the respondent and Rule-16 of the Delhi High Court (Original Side) Rules, 2018 which clothes the Court with inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court; we are of the view that it will be in the interest of justice to condone the delay in filing of written statement by the appellant.

Accordingly, we allow the present appeal and set aside the impugned order passed by the learned Single Judge rejecting the appellant‟s application seeking condonation of delay in filing the written statement.

The written statement already filed by the appellant will be taken on record, subject to the appellants paying costs of Rs. 25,000/- to the respondent No. 5/plaintiff within two weeks. The appellants shall not be granted any unnecessary adjournments."

It would be apposite to note that Tushar Bansal though having been decided post Ram Sarup Lugani fails to notice the said judgment.

22. In yet another decision, the Division Bench in Jamaluddin vs. Nawabuddin & Ors.12 was called upon to consider the correctness of the view taken by a Joint Registrar closing the right of a party to file a written statement. The Court upon noticing the decisions of the Supreme Court in Kailash and Bharat Kalra, both of which related specifically to the provisions of the Code, proceeded to allow the appeal while entering the following observations: -

"5. In view of the ratio of the above decisions of the Hon'ble Supreme Court extracted herein above and in the facts and circumstances of the present case, learned counsel appearing on behalf of the respondent no. 1 in the present appeal (the original plaintiff in the subject suit) does not oppose the relief prayed for, in 12 2023 SCC OnLine 974 CS(OS) 214/2022 Page 31 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 the present appeal. It is observed that in view of the foregoing the issue involved in the present appeal is no longer res integra.

6. Further, it is also pertinent to observe that the Hon'ble Apex Court in the recent decision of Bharat Kalra v. Raj Kishan Chabra reported as 2022 SCC OnLine SC 613 has also inter alia observed, that the delay in filing the written statement can be condoned, subject to compensating the plaintiff with costs. The relevant portion of the ratio is extracted hereinbelow:--

"1. Leave granted.

2. The challenge in the present appeal is to an order passed by the High Court on 12.08.2021 whereby delay of 193 days in filing of the written statement was not condoned.

3. Admittedly, the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Act, 2015. Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as „Kailash v. Nankhu‟ reported in (2005) 4 SCC 480.

4. In view of the aforesaid judgment, we find that the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing of the written statement is unreasonable.

5. Consequently, we allow the present appeal. The order passed by the High Court is set aside. The written statement already filed is taken on record.

6. We do hope that the trial Court shall expedite the decision of the suit keeping in view the old age of the plaintiff.

7. Pending application(s), if any, also stand disposed of."

CS(OS) 214/2022 Page 32 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59

Neutral Citation Number: 2023/DHC/001454

7. In view of the foregoing, the impugned order dated 24.11.2022 passed by the learned Single Judge and order dated 30.08.2022 passed by the learned Joint Registrar are set aside. The appellant is permitted to file the written statement in CS (OS) No. 115/2020, titled „Nawabuddin v. Sh. Salahuddin‟, within a week from today, after serving an advance copy thereof to the other side; subject, however, to payment of compensatory costs of Rs. 25,000 (Rupees Twenty Five Thousand Only), to learned counsel appearing on behalf of Nawabuddin, respondent no. 1 herein (the original plaintiff in the subject suit)."

The judgment of the Court in Jamaluddin also proceeded on a concession with respect to the legal position as made before it by and on behalf of the Respondent.

23. It would be pertinent to note that the view taken in Ram Sarup Lugani and the correctness thereof does not appear to have been doubted by any coordinate Bench of the Court. At least the attention of this Court was not drawn to any decision which may have either departed from the settled view as flowing from that decision or having even expressed a doubt with respect to the correctness of the enunciation of the legal position in Ram Sarup Lugani.

24. That then takes the Court to deal with the recent decision rendered in Amarendra Dhari Singh. It must at the outset be noted that the said decision does take note of Ram Sarup Lugani as well as another judgment pronounced by a learned Judge of the Court in Harjyot Singh vs Manpreet Kaur13. Upon due consideration of the judgments of the Supreme Court in Desh Raj and Salem Advocate 13 2021 SCC OnLine Del 2629 CS(OS) 214/2022 Page 33 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 Bar Association, T.N. v. Union of India14, the learned Judge has held as under: -

"23. In Desh Raj's case, the Supreme Court had clearly held that the time lines provided for filing of the written statement in a noncommercial suit were only directory and not mandatory. It was earnestly contended by Mr. Baruah that the said standard would be equally applicable in interpreting Rule 4 of the DHC (OS) Rules. The said contention cannot be accepted as the decision of the Division Bench in Ram Sarup Lugani (supra) is unambiguous. The Division Bench of this Court had interpreted the words „but not thereafter‟ as used in Rule 4 of the DHC(OS) Rules, as limiting the jurisdiction of this Court to condone the delay only to the period as mentioned, which in the case of written statement is 90 days. The court had also considered the decision of the Supreme Court in Desh Raj v. Balkishan (Supra). The decision in Ram Sarup Lugani (supra) is binding on this Court.

24. The contention that the defendant has not received the summons also cannot be accepted. First of all, it is relevant to note that the defendant in her application (IA 2945/2020) had expressly stated that the summons were effected through speed post on 05.09.2019 and the electronic service was effected by way of an email dated 12.09.2019 by the learned counsel for the plaintiff.

There is a clear admission that the defendant had received the summons on 05.09.2019 and by email on 12.09.2019. It is only as a matter of afterthought that the defendant had conducted an inspection of the records available with the Registry of this Court and has built up a case of non-receipt of summons on the basis of the notings made in the records of the Registry. Having affirmed that she had received the summons, it is not open for the defendant to contend that she had not received them. Second, there is no dispute that the defendant had received a copy of the plaint along with the copy of the order passed by this Court as well as the documents filed by the plaintiff. The defendant had also received the same by email. The returnable date for the summons was 16.09.2019 and on that date, the defendant was present in Court. She was fully aware of the case against her as well as, the fact that the Court had by the order dated 31.08.2019 directed issuance of summons and had passed ad-interim orders. The defendant thus had full knowledge of the case instituted against her and that she 14 (2005) 6 SCC 344 CS(OS) 214/2022 Page 34 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 was required to answer the claims. According to Mr. Baruah, the summons were deemed to be served on 22.10.2019 when this Court directed the written statement to be filed. Plainly, the defendant cannot decide as to when the summons are deemed to be served on her. The defendant was fully aware of the order dated 30.08.2019 passed by this Court whereby this Court had directed issuance of summons and had passed ad-interim relief. She was also aware that she had received copy of the plaint and the application along with the documents filed by the plaintiff pursuant to the orders passed by this court. She had thereafter appeared before this Court on 16.09.2019. This is sufficient to hold that the summons are deemed to have been served on her at least on 16.09.2019.

25. The defendant now claims that she had erroneously admitted in the application filed by her that she had received the summons on 05.09.2019 by speed post and by email on 12.09.2019. This is on account of an erroneous understanding by her counsel who although was familiar with the appellate side procedure in the Supreme Court, but has no knowledge of the proceedings on the Original Side. Plainly, this Court finds it difficult to accept the said explanation. Even if, the defendant is permitted to resile from her solemn affirmation of having received the summons on 05.09.2019 and on 12.09.2019, it is clear that the summons were deemed to have been served when she appeared along with her counsel and a Senior Counsel on 16.09.2019

26. Third, the manner as to how summons can be served is not inflexible. At this stage, it is also relevant to refer to Section 27 of CPC which reads as under:--

"27. Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed [on such day not beyond thirty days from date of the institution of the suit]."

25. Proceeding then to deal with the conclusions which were recorded in Ram Sarup Lugani, the learned Judge in Amarendra Dhari Singh has observed as follows: -

"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 CS(OS) 214/2022 Page 35 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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 CS(OS) 214/2022 Page 36 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 condonation of delay in filing of the written statement beyond 120 days of the receipt of the summons."

26. 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.

27. 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 CS(OS) 214/2022 Page 37 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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.

28. 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.

29. 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 15 The 2015 Act CS(OS) 214/2022 Page 38 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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.

30. 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 CS(OS) 214/2022 Page 39 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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.

31. 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 Bhat1988 SCR (1) 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 16 2012 SCC OnLine Del 4794 CS(OS) 214/2022 Page 40 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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."

32. 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 17 1995 SCC OnLine All 979 CS(OS) 214/2022 Page 41 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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 re- examination 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 CS(OS) 214/2022 Page 42 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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 caseAIR 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"."

33. 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 CS(OS) 214/2022 Page 43 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 period of limitation, the recognition of the Order VIII principles not being applicable and even the inherent power not being liable to be invoked in light of the emphatic language of the provision itself. Ram Sarup Lugani had also noticed the earlier Division Bench judgments in DDA vs K.R. Builders Pvt Ltd18 , HTIL Corporation B.V vs 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.

34. 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.

(2005) 81 DRJ 708 19 (2006) 90 DRJ 410 20 AIR 1979 Del 217 CS(OS) 214/2022 Page 44 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454

35. 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.

36. 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 CS(OS) 214/2022 Page 45 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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.

37. 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.

38. 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 CS(OS) 214/2022 Page 46 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 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.

CS(OS) 214/2022 Page 47 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59

Neutral Citation Number: 2023/DHC/001454

39. 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.

40. Reverting to the facts of the present case, the Joint Registrar has categorically found that the summons stood duly served on 21 May 2022. The written statement was originally presented on 13 October 2022 and then refiled on 27 October 2022. The Joint Registrar has also found that the Defendant No.1 also stood duly served with notice of the application seeking interim injunction via speed post. The judgment of the Court in HT Media Limited Vs. Brainlink International Inc.21, and which was cited by learned counsel for the Plaintiff, would appear to additionally shut out the challenge that is raised in the instant Chamber Appeal. The Defendant No. 1 appears to have been duly placed on notice in that respect on 21 April 2022. The written statement clearly came to be filed beyond the maximum 21 2021 SCC OnLine Del 5398 CS(OS) 214/2022 Page 48 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59 Neutral Citation Number: 2023/DHC/001454 period prescribed and when computed either from 21 April 2022 or 21 May 2022. The written statement was admittedly filed beyond the maximum time prescribed by Rule 4. In view of the above, the Joint Registrar was clearly justified in taking the written statement off the record.

41. The Chamber Appeal along with pending application for all the aforenoted reasons fails and shall stand dismissed.

CS(OS) 214/2022, I.A. 1838/2023(Delay)

1. List before the concerned Joint Registrar on 27.04.2023 for taking further proceedings on the suit.

YASHWANT VARMA, J.

MARCH 01, 2023 neha CS(OS) 214/2022 Page 49 of 49 Signature Not Verified Digitally Signed By:NEHA Signing Date:01.03.2023 16:09:59

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