Condoning Delay In Filing WS
   Date :03-Feb-2020

Numerous opportunities were given to appellant to file the Written Statement but there were repeated and blatant lapses and that his counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and appellant is seeking condonation in a casual manner. This is not permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time.
A 3-JUDGE bench of the Supreme Court consisting of the Chief Justice Sharad A. Bobde, Justice Bhushan Gavai and Justice Surya Kant have ruled in the judgment of the case – Desh Raj v. Balkishan (D) through proposed LR Ms. Rohini, delivered on January 20, 2020, that the courts continue to have discretion in condoning delay in filing of Written Statement (WS) beyond the prescribed period of limitation in non-commercial disputes. Regarding the timeline for filing of Written Statement in a non-commercial dispute, the Supreme Court has stated that its observations in its several decisions, most recently in the case – Atcom TechnologiesLtd. v. Y. A. Chunawala & Co.- (2018) 6 SCC 639, hold the field.
Unamended Order VIII Rule 1, CPC continues to be directory and does not do away with the inherent discretion of courts to condone certain delays. Considering the facts of the case in hand, the SC has pointed out that this civil suit had been filed by the respondent for decree of specific performance of an agreement to sell one floor of ancestral property located in Devli village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. The counsel for the respondent did not dispute the non–commercial nature of the suit, and even independently the court itself was satisfied that the dispute does not fall within the parameters specified under section 2 (c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property in this case is not of a nature which is “used exclusively in trade or commerce”.
Hence the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in the light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes. Although, the un-amended Order VIII Rule 1 of CPC is directory, it cannot be interpreted to bestow a free hand to any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the list.
The legislative object behind prescription of timeliness under the CPC must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion with the 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. It is clear from facts on record that numerous opportunities were given to the appellant. He was served on May 1, 2017 and entered appearance through counsel on May 15, 2017. As per Order VIII, Rule 1 of CPC, the appellant ideally ought to have filed his Written Statement by May 31, 2017; and at the very latest by July 30, 2017. In addition to two separate deadlines for filing of the Written Statement within 90-day timeframe prescribed by the ‘original’ Order VIII Rule 1, the Civil Court even post expiry of the prescribed period again gave one last and final opportunity on September 18, 2017 subject to payment costs of Rs 3,000/-.
None of these deadlines were complied with. Even on October 11, 2017, when the court finally closed the appellant’s ability to file the Written Statement and struck--off his defence from the record, no attempt was made to comply with the legal process. It was only on November 2, 2017, after a delay of 95 days post the maximum extendable period under the proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his Written Statement.
Curiously however, even by the next hearing on November 3, 2017, the appellant had failed to provide a copy of the Written Statement to the respondent, as had been noted by the Civil Court. The only defence taken to these repeated and blatant lapses is that the appellant’s counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the court, its officers as well as of adversaries.
Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public in general who spend decades mired in technical processes. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person.
He has, thus, failed to give any cogent reason for the delay and is unable to satisfy the requirement of due diligence on his part, though he is right in his submission that the Delhi HC erroneously relied upon the ratio of the SC’s judgment in the case- Oku Tech Pvt Ltd v. Sangeet Agarwal & Others- 2016 SCC OnLine Del 6601. “Having held so,” the SC has stated that there could be no escape but to dismiss this appeal. However, taking a lenient view given the unique circumstances of the case and without laying down the discretion being exercised hereinafter, as a precedent, the court directed that the written statement filed by the appellant on November ember 2, 2017 (as claimed), be taken on record with a copy to counsel for the respondent within one week from the date of this judgment and further subject to payment of costs of Rs 25,000/- to the respondent. The SC has set aside the orders passed by the courts below and disposed of the appeal.