Citation Codes

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Case Number

IAs 3014/06 & 5506/06 in CS(OS) No. 979/05

Advocates

PRESENT: Mr. Pravin Anand & Mr. Mohit Lahoty, Advocates for the Plaintiffs.
Mr. M.L Bhargava, Adv., for the Defendants 1 & 2.

Judges

Manju Goel, J.

Acts

Order 8 Rule 10 of the Code of Civil Procedure (in short CPC)
provisions of Order 8 Rule 1, Delhi
presented.3. Order 8 Rule 1 of CPC
provisions of Order 8 Rule 1,
Order 8 Rule 1 of the Code
Order 8 Rule 10 CPC
Order 8 Rule 1 CPC
Order 8 Rule 10
Order 8 Rule 1
Rule 2(ii)

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Smart Summary

Structured Summary of the Opinion — Manju Goel, J.

Factual and Procedural Background

The suit was presented on 19.7.2005. On 20.7.2005 the court ordered issuance of summons (ordinary process and registered A.D.). Summons were served on the defendants on 2.8.2005. The defendants appeared through counsel on 18.8.2005, but no written statement ("WS") was filed then or on an adjourned date of 31.8.2005. The WS was required within 30 days from service and thus was due by 1.9.2005; the maximum period under Order 8 Rule 1 CPC (and the aligned Original Side Rule) was 90 days, ending 1.11.2005.

The defendants moved an application (IA No. 6552/05) for permission to shift goods, which was allowed, and the matter was listed for 5.12.2005. On 5.12.2005 defence counsel stated a compromise had been proposed; the court directed defendants to file a written statement within four weeks and the plaintiff to file replication within three weeks thereafter. The plaintiff filed an application under Order 8 Rule 10 CPC (IA No. 3014/06) to strike off the defence, which was listed on 14.3.2006; the defendants filed an application under Order 8 Rule 1 CPC (IA No. 5506/06) seeking condonation of delay in filing the written statement. The written statement of defendant Nos. 1 & 2 and an application for enlargement of time were ultimately presented on 28.3.2006.

Legal Issues Presented

Whether the court can extend the time for filing a written statement beyond the 90‑day period prescribed by Order 8 Rule 1 CPC (and the corresponding Original Side Rule) and, if so, on what parameters such an extension may be granted.
Whether the defendants have shown sufficient cause to justify an extension of time (beyond the applicable deadlines) for filing their written statement.
Whether the Delhi High Court (Original Side Rules) apply to suits on the Original Side to the exclusion of the CPC provisions and the effect of any such rule on the court's power to extend time for filing a written statement.
Whether the plaintiff's application under Order 8 Rule 10 CPC (to strike off the defence and pronounce judgment) should be entertained in view of the above.

Arguments of the Parties

Defendants' Arguments

The defendants said they were served at the end of July (process returns show service on 2.8.2005) and thereafter stopped manufacturing goods and sought to settle the matter by compromise; they instructed counsel to pursue compromise.
The defendants contended the court had granted time (as part of the discussion on compromise) and that delay in filing the written statement was due to their interest in settling the matter and therefore not intentional.
Defence counsel relied on section 129 CPC to contend that the Delhi High Court (Original Side Rules) governed procedure on the Original Side and not the generic CPC provisions, implying the court retains power to extend time (even beyond 90 days) under those Rules.

Plaintiff's Arguments

The plaintiff pointed out that the defendants' offer to settle was mentioned only on 5.12.2005, which was after the 90‑day period had already expired.
The plaintiff's counsel stated on 5.12.2005 that she had no instructions regarding any offer to compromise; in the plaintiff's IA under Order 8 Rule 10 it was specifically denied that settlement talks had occurred.
The plaintiff argued the court on 5.12.2005 merely allowed the defendants an opportunity to file the written statement within four weeks and did not extend time for compromise; nothing prevented the defendants from filing the WS after 5.12.2005 within that four‑week period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kailash v. Nanhku & Ors., (2005) 4 SCC 480	The Supreme Court's guidance that the time schedule in Order 8 Rule 1 must ordinarily be honoured; extension beyond 90 days is an exception and may be granted only in very exceptional circumstances where reasons beyond the control of the defendant exist and grave injustice would result otherwise; the court must record reasons in writing; courts may impose costs and insist on evidence when granting extensions.	The court relied on Kailash to hold that extension beyond 90 days is exceptional, must be justified, and cannot be granted where the delay arises from laxity or gross negligence; applying those principles, the court concluded the defendants had not shown exceptional circumstances and thus time could not be extended.
DDA & Anr. v. K.R. Builders P. Ltd., 2005 (81) DRJ 708 (DB)	A Division Bench decision that Original Side Rules govern suits on the Original Side to the exclusion of CPC provisions where the Rules occupy the field; the bench held the court has power to extend time for filing a written statement even beyond 90 days but cautioned that Rule 3 (as then worded) did not permit unending extensions.	The court noted the DDA decision supported the proposition that Original Side Rules could govern, but observed that the Original Side Rules had since been amended (effective 9.1.2006) to mirror the 90‑day limitation; consequently, the court treated the Rules and Order 8 Rule 1 as having the same time schedule and applied Kailash's principles.

Court's Reasoning and Analysis

The court began by extracting the text of Order 8 Rule 1 CPC: a defendant must present a written statement within thirty days from service and, where the defendant fails to do so, may be allowed to file it on such other day as specified by the court but not later than ninety days from service, with reasons to be recorded.

The central legal question identified was whether the court can extend the time beyond the ninety‑day limit. The court referred to the Supreme Court's decision in Kailash v. Nanhku, which sets strict parameters: extensions beyond 90 days are exceptional, must be for reasons beyond the defendant's control, be required in the interest of justice, and be recorded in writing; courts may also impose conditions and require supporting evidence.

The defence argued that the Original Side Rules (under section 129 CPC) applied and that a Division Bench decision (DDA v. K.R. Builders) supported the court's power to extend time beyond 90 days. The court observed that the Original Side Rules had been amended with effect from 9.1.2006 so that Rule 3 now mirrors Order 8 Rule 1 and fixes the outer limit at 90 days. Thus, the Rules and Order 8 Rule 1 had become substantively identical as to the time schedule, and Kailash's interpretation accordingly applied.

On the facts, the court examined the timeline: service on 2.8.2005; appearances on 18.8.2005, 25.8.2005, 31.8.2005 and 5.12.2005; no written statement filed by the 30‑day or 90‑day deadlines; no application for extension in September/October 2005; the 90‑day period expired on 1.11.2005. Although on 5.12.2005 the court (without an application by defendants) directed that the written statement be filed within four weeks, that order did not record reasons for extending time and the four weeks expired on 2.1.2006 with no filing by the defendants.

The defendants' stated grounds for delay — attempts to compromise and cessation of manufacturing — were evaluated. The court noted that the offer to settle was mentioned only on 5.12.2005 (after the 90‑day limit) and that the plaintiff denied any ongoing settlement discussions. The court concluded that the defendants had not established exceptional circumstances beyond their control, nor had they shown sufficient cause in the manner and at the times contemplated by the authorities. The court emphasized the need to apply the strict parameters of Kailash and the restricted interpretation of any provision allowing "further extension."

On this basis, the court found it was not possible to extend time for filing the written statement and therefore refused to take the written statement of defendant Nos. 1 & 2 on record.

Holding and Implications

Core Rulings:

IA No. 5506/2006 (application to condone delay under Order 8 Rule 1 CPC) is dismissed.
The written statement of defendant Nos. 1 & 2 cannot be taken on record.
IA No. 3014/2006 (application under Order 8 Rule 10 CPC by the plaintiff) may now be disposed of on hearing the parties on the merits of the suit.

Implications:

Direct effect on the parties: the defendants' application for condonation of delay failed and their written statement filed after the permitted period will not be recorded; the plaintiff's application under Order 8 Rule 10 will be taken up for hearing on the merits (which could lead to further orders as per that procedure).
The court applied existing precedent (Kailash v. Nanhku) and the amended Original Side Rule; the decision enforces the strict, exceptional‑circumstances standard for granting extensions beyond 90 days. The opinion does not purport to create a new precedent beyond the application of existing binding authority and the statutory/rule provisions quoted.

Administrative note from the order: The matter was listed for final disposal on 5.7.2006.

Show full summary ...

Htil Corporation, B.V. v. Ajay Kohli

Manju Goel, J.:— IA No. 3014/06 is an application under Order 8 Rule 10 of the Code of Civil Procedure (in short ‘CPC’) for striking off the defence of the defendants and for pronouncing the judgment against the defendants. Reply to the application has been filed. IA No. 5506/06 is an application by defendants 1 & 2, hereinafter referred to as ‘defendants’, under Order 8 Rule 1 CPC for condoning the delay in filing the written statement. Both the applications are disposed of by this order.

2. The facts leading to the filing of the present application are as under:

The suit was presented on 19.7.2005 On 20.7.2005 this court, inter alia, passed an order for issue of summons through ordinary process as well as through Regd. A.D The defendants were served with summons on 2.8.2005 On 18.8.2005 Mr. S.K Tiwari and Mr. Y.R Sharma put in appearance for the defendants. The summons required the defendants to file their written statement within 30 days from the date of the service. The written statement of defendant Nos. 1 & 2, therefore, should have been filed by 1.9.2005 Although the defendants put in appearance on 18.8.2005 through Shri S.K Tiwari and Shri Y.R Sharma, Advocates, no written statement was filed on that day. Nor was any written statement filed on the adjourned date of 31.8.2005 The defendants moved an application being IA No. 6552/05 asking for permission to shift defendants' good from their godown to their factory which was allowed. The case was then listed for 5.12.2005 In none of these dates, the defendants asked for enlargement of time for filing their written statement. On 5.12.2005, the counsel for the defendants stated that a compromise had been proposed. The court directed that the defendants may file their written statement within four weeks and the plaintiff may file its replication within three weeks thereafter. Before the adjourned date, the plaintiff filed the application under Order 8 Rule 10 CPC which was listed on 14.3.2006 Counsel for the defendants stated that he would file a reply. Accordingly, the matter was listed for hearing on 15.5.2006 Written statement of defendant Nos. 1 & 2 was presented in the meantime on 28.3.2006 Along with the written statement the application under consideration, i.e, for enlargement of time for filing the written statement is also presented.

3. Order 8 Rule 1 of CPC prescribes the time for filing the written statement and it reads as under:

“1. Written statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.”

4. In view of this provision the written statement is required to be filed within 90 days from the date of service which in the present case ended on 1.11.2005 The question is whether the court can extend the time beyond the period of 90 days. This question was considered by the Supreme Court in the case of Kailash v. Nanhku & Ors., (2005) 4 SCC 480 and the Supreme Court has held as under:

“42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.

43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the fats and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which do exist.

44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.”

5. Learned counsel for the defendants refers to section 129 of the cpc and stated that since this High Court has Delhi High Court (Original Side Rules) framed under section 129 of CPC, the Delhi High Court (Original Side Rules) in this regard and not the provisions of cpc will apply. section 129 is extracted below:

“129. Power of High Courts to make rules as to their original civil procedure.—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.”

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 & Anr. v. K.R Builders P. Ltd., 2005 (81) DRJ 708 (DB). The finding of the Division Bench supported the view of the learned defence counsel that suits filed on the original side of this court would be governed by the rules framed by the High Court to the exclusion of the provisions of the CPC wherever the field is occupied by these Rules and that this court has the power to extend the time for filing the written statement even beyond 90 days. However, the Division Bench also clarified that Rule 3, as it then stood, of Chapter IV of the Delhi High Court (Original Side Rules) does not contemplate unending extensions to be granted on the asking. Rule 3 provided as under:

“3. Extension of time for filing written statement.—Ordinarily, not more than one extension of time shall be granted to the defendant for filing a written statement provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient grounds for such extension and supported, if so required, by an affidavit.”

7. The Division Bench pointed out that as per the rule quoted above, only one extension of time was to be granted for filing written statement and that the second or further extension may be granted only on an application made in writing setting forth sufficient grounds. It was also pointed out that the expression ‘any further extension’ in this proviso does not contemplate unending extensions on the asking and that ‘any further extension’ should receive a restricted interpretation. The situation has now changed since the Delhi High Court (Original Side Rules) have also been amended. The amendment which has taken effect on 9.1.2006 is now as under:

“3. Extension of time for filing written statement.—Where the defendant fails to file written statement within the period of 30 days as stated in Rule 2(ii) he shall be allowed to file the same on such other day as may be specified by the Court on an application made in writing setting forth sufficient ground for such extension and supported, if so required, by an affidavit but such day shall not be later than 90 days from the service of summons.”

8. In view of this amendment, the Delhi High Court (Original Side Rules) give the same time schedule for filing a written statement. Written statement, therefore, can be filed within 30 days and thereafter on sufficient ground for such extension being shown on an affidavit but such extension shall not be later than 90 days from the date of service.

9. Since the Rule is now the same as the provisions of Order 8 Rule 1, the interpretation of the Rules will also be the same as the interpretation of Order 8 Rule 1 regarding the extension of time for filing the written statement. Accordingly, this court has no option but to again refer to the judgment of Kailash v. Nankhu (Supra). The relevant paragraphs have already been quoted above.

10. The next question, therefore, is whether the defendants have made out sufficient cause for extension of time on merit. I hasten to add that the case of the defendants will be considered keeping in view the advice of the Supreme Court that extension should be granted only in very exceptional cases and the advice of this court that any further extension should be given a restricted interpretation. The defendants say in their application for extension of time that they were served sometime at the end of July, 2005. The signature on the process returns and the endorsement of the process server indicate that the summons were received by the defendant No. 1—Mr. Ajay Kohli & Westrack Clothing Pvt. Limited—and defendant No. 2—HANG TEN—on 2.8.2005 Therefore, I proceed to consider the case on the basis that the defendants were actually served on 2.8.2005 In the present case the defendants after being served on 2.8.2005 appeared on 18.8.2005, 25.8.2005, 31.8.2005 & 5.12.2005 The time for filing the written statement expired on 1.9.2005 Thereafter the defendants in the month of September & October, 2005 did not file any written statement. Nor did the defendants make any application for extension of time. The 90 days period expired on 1.11.2005 Yet the court on 5.12.2005 further permitted the defendants to file the written statement within four weeks. This order was without the defendants applying for extension of time. Nor did the court mention anything in its order dated 5.12.2005 as reason for such extension. Be that as it may, the four weeks provided by this court ended on 2.1.2006 The defendants remained unfazed. The plaintiffs then filed the application under Order 8 Rule 10 to which the defendants were again given the indulgence to file a reply. The defendants then filed the written statement on 28.3.2006 The ground for extension of time in the application are as under:

After service of summons the defendants suffered loss and had stopped manufacturing the goods and thought it proper to settle the matter by way of a compromise and instructed their counsel to settle the matter. The court also granted some time for settling the matter and so the written statement could not be filed. The defendants could not settle the matter and on 14.3.2006 the defendants made a request for adjourning the case to some other date so that the defendants may file their written statement. The defendants could not file their written statement within 30 days from the service of summons or within the period allowed by the court on account of the reasons that they were interested in settling the matter and that the delay was not intentional.

11. The application is vehemently opposed on the ground that the defendants' offer to settle was mentioned before the court only on 5.12.2005 by when 90 days period had already expired. Secondly, on the very date of 5.12.2005, the counsel for the plaintiff stated unequivocally that she had no instructions in respect of any offer to compromise. In the application under Order 8 Rule 10 it is specifically denied that the parties have ever been engaged in any kind of settlement talks. The court actually on 5.12.2005 did not grant any time for compromise. All that the court did was to give the defendants an opportunity to file the written statement. The order reads:

“Be that as it may, the defendants may file the written statement within four weeks………”. Therefore, the defendants cannot be heard to say that the court extended the time for compromise till the next date of 14.3.2006 Despite the fact that defendants Nos. 1 & 2 stated that they were trying to compromise, the court wanted a written statement within four weeks. The defendants even allowed this four weeks to go. There is nothing to show what prevented the defendants from filing the written statement after the date of 5.12.2005

12. Although the court has the power to extend the time for filing written statement the power has to exercised in accordance with the settled principles. The advice of the Supreme Court as also Division Bench of this court has already been noted above. This case certainly does not fall within the class of cases in which extension of time can be given. The defendants have totally failed to make out any good grounds justifying the delay in filing the written statement. In view of the law as laid down in the provisions of Order 8 Rule 1, Delhi High Court (Original Side Rules) and the interpretation of the law as given by the Supreme Court in the case of Kailash v. Nankhu (Supra) it is not possible for this court to extend the time for filing the written statement. The written statement of defendant Nos. 1 & 2, therefore, cannot be taken on record. IA No. 5506/2006 is dismissed. IA No. 3014/2006 can now be disposed of on hearing the parties on merit of the suit.

13. The matter be now listed for final disposal on 5.7.2006

Htil Corporation, B.V. v. Ajay Kohli

Structured Summary of the Opinion — Manju Goel, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendants' Arguments

Plaintiff's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Htil Corporation, B.V. v. Ajay Kohli

Comments