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SC Dismisses SLP Against Delhi HC Decision Holding 45-Day Period For Filing Replication As Mandatory In Even Non-Commercial Suits
Mehal Jain
29 Jun 2021 3:47 AM GMT
By dismissing the SLP preferred against it, the Supreme Court on Monday affirmed a Delhi High Court decision holding that the maximum 45-day period for filing of replications is mandatory for even non-commercial, ordinary civil suits and the court cannot permit the replication to be taken on the record thereafter. The bench of Justices D. Y. Chandrachud, R. Subhash Reddy and Ravindra Bhat...
By dismissing the SLP preferred against it, the Supreme Court on Monday affirmed a Delhi High Court decision holding that the maximum 45-day period for filing of replications is mandatory for even non-commercial, ordinary civil suits and the court cannot permit the replication to be taken on the record thereafter.
The bench of Justices D. Y. Chandrachud, R. Subhash Reddy and Ravindra Bhat was hearing the SLP against an October, 2020 decision of the division bench of the Delhi High Court whereby it affirmed the Single Judge's order holding that the Court of Joint Registrar and/or the Court did not have any power to condone the delay in filing the replication beyond 45 days, which is the time-period stipulated by the Delhi High Court (Original Side) Rules, 2018.
It may be noted that Rule 5 of Chapter 7 of the Rules, 2018 provides that the replication, if any, shall be filed within 30 days of receipt of the written statement. Further, if the Court is satisfied that the Plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days, it may extend the time for filing the same by a further period not exceeding 15 days "but not thereafter". In case no replication is filed within the extended time also, "the Registrar shall forthwith place the matter for appropriate orders before the Court".
"If we say that the Rule is directory and not mandatory, then all the provisions for expeditious disposal of matters in the Commercial Courts Act and the C. P. C. will fall by the wayside", observed Justice Chandrachud.
"There is a reason why the Commercial Courts Act and C. P. C. amendments envisaging timelines have been brought in. Why must there be a delay at the instance of any of the parties?", asked Justice Bhat.
"The issue here is not even of a written statement but of the replication. Rule 5 does not say that the plaintiff 'shall' file a replication. What is the prejudice caused to you if there is no replication? It does not mean that you are admitting the averments in the written statement. This is a section 92 (of the C. P. C.) suit. The plaintiff does not have to controvert the written statement. These are writ principles. You can lead your evidence after the written statement", added Justice Chandrachud.
"The reply to the written statement can only be by the leave of the court as per the C. P. C. It is not an unmitigated right. It is just that this is a practice which has gone on for 35-40 years before the High Court and so it is allowed. But you cannot ask that while the whole country is going in one direction, the Delhi High Court should go in another. This way somebody will start insisting on a reply to the replication also", remarked Justice Bhat.
"The first adjudicatory forum was the Registrar (who declared that the right to file replication had been closed and no ground for extension was made out). Then there was the chamber appeal to the Singe Judge, followed by the second appeal to the Division Bench. Now you want the fourth court to dwell on this point?", commented the judge.
It was the case of the SLP petitioner that in a non-commercial ordinary suit, the period of 45 days prescribed for filing a replication, is not mandatory and the same can be extended by the Court, that a co-ordinate bench of the High Court, while dealing with an ordinary, non-commercial, civil suit, permitted a written statement filed after 150 days of service of summons to be taken on record, and that, if a written statement can be taken on record beyond 120 days (as contemplated by Rule 4 of Chapter 7 of the 2018 Rules) in an ordinary suit, the same logic would apply to a replication to be filed at the instance of a Plaintiff in a suit.
It was argued that the October 31, 2019 decision of the High Court in the case of Odeon Builders Pvt. Ltd. vs. NBCC (India) Ltd., wherein it was held that in a commercial suit, the Joint Registrar/Court cannot extend the time beyond 45 days for filing the replication, was not applicable in the present case. Further, it was advanced that the High Court, in the said judgment, had erred in ruling that inherent powers cannot be used to override express provisions and hence, Rules 14 and 16 of Chapter 1 of the Rules, 2018 would not come to aid in condoning delay beyond 45 days.
"In the present case, if the provisions of Rule 5 are considered as mandatory and if the 45 days period is considered as not condonable by the Court, it would render the language of Rule 5 i.e. 'In case no replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court' which follows the words 'but not thereafter' as otiose'...The High Court failed to appreciate and consider that if the intent was to close the right to file replication automatically after 45 days, the rule would have said so, and there was no question of placing the matter before the Court for 'appropriate orders' being passed", it was submitted.
"The question is whether Rule 5 permits discretion to the Court to extend time beyond 45 days- whether a Constitutional Court, whose judges are appointed under Article 215 of the Constitution (albeit exercising ordinary original jurisdiction while sitting on the Original Side of the High Court) would not have any power to condone delay beyond 45 days, if circumstances and the interests of justice so require? That a constitutional court has no power to condone delay cannot be the correct law. Rule 14 of Chapter 1 of the 2018 Rules allows that the Court may, for sufficient cause shown, excuse parties from compliance with any requirement of these Rules, and may give such directions in matters of practice and procedure, as it may consider just and expedient. Rule 16 also says that nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court", it was argued by advocate Tanmaya Mehta, for the SLP petitioner.
When the bench seemed inclined to dismiss the SLP, the advocate prayed that the bench record in its order that the question of law is left open. Dismissing the SLP, the bench recorded that "no opinion is expressed as to the question of law".
The SLP petitioners had filed a suit under section 92 of the C. P. C. in representative capacity before the Delhi High Court for misconduct and mismanagement of a Charitable Trust (established for running schools and imparting education) as well as its properties, assets and monies. In the said suit, the written statement was filed by the Defendants/Respondent on or before July 3, 2019. The matter was hereafter listed before the Court on July 23, 2019, on which date time of 4 weeks was granted to file replication along with the affidavit of admission / denial of documents and the matter was directed to be posted on September 30, 2019 before the Court of Joint Registrar. On September 30, 2019, the Joint Registrar, noting the fact that replication has not been filed within the time granted and no ground is made out for further extension, had closed the right of the Plaintiffs/Petitioners to file replication. By the August 6, 2020 order passed by the Single Judge, Chamber Appeal filed by the appellants/plaintiffs, challenging the order of the Joint Registrar, had been dismissed.
In the impugned judgment of October, 2020, the High Court had held that:
"Notably, the (C. P. C.) does not provide for filing of any replication. Order VI, Rule 1 describes "pleadings" to mean plaint or written statement. It is the Delhi High Court (Original Side) Rules, 2018 that provides a time limit for filing the replication and since the said Rules regulate the procedure, the same will have to prevail over the Code...In case of any inconsistency, the provisions of the Delhi High Court (Original Side) Rules, 2018 will prevail over the C. P. C. The inherent powers contemplated in Rule 16 are not to be exercised to overcome the period of limitation expressly prescribed in Rule 5 for filing the replication. Nor can Rule 5 be circumvented by invoking any other provision or even the inherent powers of the court, contrary to the scheme of the Rules. The phrase, "but not thereafter" used in Rule 5 makes it crystal clear that the Rule 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. Any other interpretation will result in causing violence to the DHC Rules"
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