CHARU AGRAWAL Vs. MR ALOK KALIA

JUDGEMENT

(1.) The present Chamber Appeal has been preferred assailing an order passed by the Joint Registrar dtd. 6/1/2023 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, 1908[1] and that the Joint 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 Chabra, 2022 SCC OnLine SC 613 and Kailash v. Nanhku, (2005) 4 SCC 480. 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. Balkishan, (2020) 2 SCC 708 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., 2023 SCC OnLine Del 84 in which on an ultimate analysis of Rules 4 and 5 contained in Chapter VII of the Delhi High Court (Original Side) Rules, 2018[6], 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 6/1/2023 may be noticed. The suit is stated to have been instituted on or about 13/4/2022. On 18/4/2022, 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 20/7/2022, 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 8/8/2022, the Joint Registrar noted that Defendant No. 1 stood duly served through speed post. When the matter was placed before Court on 16/8/2022, Defendant Nos. 3, 4 and 6 were represented by counsel and they were consequently granted time to file their written statement as well as replies on the pending I.As.