Whether Written Statement Without Admission/Denial Affidavit Is Non-Est Or Curable Defect; Delhi High Court Refers Issue To Larger Bench

The Delhi High Court has referred to a larger bench an issue concerning the filing of written statements under the Delhi High Court (Original Side) Rules, 2018.

Justice Subramonium Prasad has framed the following question for reference:

“whether the filing of a Written Statement within the statutory period prescribed under the Delhi High Court (Original Side) Rules, 2018, but without being accompanied by an affidavit of admission/denial of documents, renders such filing non-est in law or whether the absence of such affidavit constitutes a curable defect, permitting the Written Statement to be taken on record upon subsequent compliance of filing an affidavit of admission/denial of documents.”

The bench made the reference while hearing an appeal challenging an order of the Joint Registrar refusing to take on record the written statement filed by the South Delhi Municipal Corporation (SDMC) on the ground that the mandatory affidavit of admission/denial of documents was filed beyond the prescribed period of 120 days.

The Court noted that while the written statement had been filed within the outer limit of 120 days, it was not accompanied by the affidavit of admission/denial, which was filed subsequently after the expiry of the stipulated period.

The Court examined conflicting judgments of coordinate benches on the issue: where one set of precedents held that a written statement without the mandatory affidavit cannot be taken on record at all, treating such filing as non-est; whereas the other set of judgments take the view that such a defect is curable, provided the written statement itself was filed within the statutory timeline and the defect is subsequently rectified.

Observing that the use of the word “shall” in Rule 3 makes the filing of the affidavit mandatory, the Court noted that permitting a written statement without such affidavit could render the provision otiose.

At the same time, it acknowledged the divergent judicial interpretations on the issue and referred the question to a larger bench.

The matter will now be placed before the Chief Justice for appropriate directions.

Appearance: Mr. Karunesh Tandon, Mr. Sarthak Mittal, Mr. Prabin Mohan, Advs. for Plaintiff; Mr. Tushar Sannu, Standing Counsel of MCD with Ms Ankita Bhadouriya & Mr Umesh Kumar, Advs for Defendants

Case title: VK Sood PIL JV v. South Delhi Municipal Corporation And Ors

Case no.: CS(OS) 330/2022

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