India: No Question Of Condonation Of Delay In Filing Replication Under Rule 5 In Chapter VII Of The Original Side Rules: Delhi High Court

The Hon'ble Delhi High Court in the case of Atlantech Online Services Pvt. Ltd. & Anr. Vs. Google India Pvt. Ltd. & Anr. [CS (Comm) 647/2021] held that Rule 5 in Chapter VII of the Delhi High Court (Original Side) Rules, 2018 ("the Original Side Rules"), which categorically states that, even in exceptional and unavoidable cases, the time for filing of replication may be extended only up to 15 days beyond the original period of 30 days as envisaged in that regard, and the judgment of the Supreme Court in Ram Sarup Lugani, concerning Rule 5¹ is binding on the High Court.

Facts and Issue

In accordance with Rule 5, the original period of filing a replication by the Petitioner to a written statement of the defendant is 30 days from the date of receipt of the Written statement, which may be extended up to a maximum period of 15 days, with the total period for filing a replication being 45 days.

The Petitioner, by way of an application, was seeking the condonation of delay of 90 days in filing and 97 days in refiling the replication to the Written statement filed on behalf of one of the defendants.

CONTENTIONS OF THE COUNSEL FOR THE PETITIONER

The procedural rules are always subservient to the ultimate objective of justice. The language adopted by the draftsman of processual law may be liberal or stringent. Still, the fact remains that the object of the prescribing procedure is to simplify the cause of advancing justice. In a process involving conflict or opposition, none of the parties in a dispute should be denied the opportunity to participate in the process of justice dispensation.

Unlike Rule 4 of the High Court 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. No such rigorous language has been used in Rule 5. It mandates the Registrar to place the matter for appropriate order(s) before the Court forthwith. This difference in the language used cannot also be said to be without any purpose. In support of the above contention, the Counsel for the Petitioner placed reliance upon Para 29 of the judgment of the High Court of Delhi in the matter of Amarendra Dhari Singh v. R.C. Nursery Pvt. Ltd [2023 SCC OnLine Del 84: 2023 AIR CC 1068].

Observation of the Court

Upon a bare perusal of the provision, the Hon'ble Court could construe that the law is worded in a negative/punitive manner. The opening sentence of the Rule makes it clear that even in exceptional and unavoidable circumstances, the time for filing a replication may be extended only up to 15 days beyond the original period of 30 days. The Rule proceeds to clarify that even the extension beyond the original period shall be subject to cost; if the costs as decided by the Court are not paid, the replication would not be taken on record.

The Rule proceeds with the phrase 'but not thereafter' used in Rule 5, making it abundantly clear that the provision 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.

As far as the judgment relied upon by the counsel for the Petitioner in the matter of Amarendra Dhari Singh deals with Rule 4, which empowers the Registrar to close the right to file the written statement, no such discretion is available under Rule 5, which specifically closes the right with the words "but not thereafter", therefore, in no manner the relied upon judgment dilutes the ruling of the judgment of the Delhi High Court in the matter of Ram Sarup Lugani [2020 SCC OnLine Del 1353: 2021 AIR CC 917] which held that the Court could not extend the period for filing the replication beyond the outer limit of 45 days as mandated in the Rules. Upon expiry of the said period, the plaintiff's right to file the replication would stand extinguished.

Further, the present case deals with Rule 5 of Chapter VII of the Rules and not Rule 4.² Therefore, the judgment in Ram Sarup Lugani concerning Rule 5 shall remain binding upon this bench.

Conclusion

The judgment has clarified that unlike Rule 4, which directs the Registrar to close the right to file a written statement once the statutory period is exhausted, Rule 5 provides for no such discretion to the Registrar. Yet the wording of the provision makes it clear that once the original period of 30 days of filing a replication is exhausted, the courts can only extend the period for filing the same for 15 days, which shall also be subject to cost as deemed appropriate by the Court. Under no circumstances can the outer limit of 45 days be extended to any further period, as no such discretion is available with the Registrar or the Court under Rule 5.

Footnotes

1 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 in 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 deemed appropriate. The replication shall only be taken on record if such costs have been paid/deposited. In case no replication is filed within the extended time, the Registrar shall forthwith place the matter for appropriate orders before the Court. An advance copy of the replication, along with legible copies of all documents in possession and power of the 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.

2 4. Extension of time for filing written statement. – If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days, it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter. For such extension of time, the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid/deposited. If the defendant fails to file the affidavit of admission/denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed admitted. If no written statement is filed within the extended time, the Registrar may pass orders for closing the right to file the written statement.

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