The dismissal of the Special Leave Petition (“SLP”) by the Supreme Court on June 28, 2021, filed against the Delhi High Court decision in the case of Ram Sarup Lugani v. Nirmal Lugani, [FAO(OS) 47/2020, decided on October 19, 2020] (“Ram Sarup Lugani”), has led to the said decision of the Delhi High Court attaining finality which states that a maximum 45 (forty-five) day time period for filing of replications is mandatory for even non-commercial, ordinary civil suits. Hence, the Court cannot permit the replications to be taken on record thereafter.

Brief Facts:

The petitioner/ plaintiff instituted a suit on the original side of the Delhi High Court in April, 2019. After filing of written statement by the defendants within stipulated time, the right of the petitioner/ plaintiff to file replication in response to the written statement, was closed by the Joint Registrar. The petitioner/ plaintiff challenged the order of the Joint Registrar before a Single Judge of the Delhi High Court, which was dismissed. The petitioner/ plaintiff thereafter challenged the dismissal order of the Single Judge before the Division Bench of Delhi High Court. The Division Bench also dismissed the challenge and upheld the decision of the Single Judge. Aggrieved by this, the petitioner/ plaintiff approached the Supreme Court. 

Issues:

The only question of law which arose for consideration before the Division Bench of the Delhi High Court was whether in a non-commercial ordinary civil suit, the period prescribed for filing the replication under Rule 5 of Chapter VII of the Delhi High Court (Original Side) Rules, 2018 (“DHC Rules”) is directory or mandatory in nature and whether the time prescribed therein, even if not extendable by the Joint Registrar, can still be extended by the Court?

Submissions of the petitioner/ plaintiff: 

The following submissions have been made before the Division Bench:

a)    That reliance was placed on Desh Raj v. Balkishan, [(2020) 2 SCC 708] (“Desh Raj”), wherein, the Supreme Court has held that proviso 2 of Order VIII Rule 1 of the Code of Civil Procedure, 1908 (“CPC”) is only directory and not mandatory. Drawing an analogy from Desh Raj (supra), an argument was made that the time-period prescribed in Rule 5 of Chapter VII of the DHC Rules is also directory in nature. Therefore, it cannot be said that the Court is powerless to condone the delay and accept the replication beyond the time prescribed therein.
b)    That unlike Rule 4 which mandates the Registrar to close the right to file the written statement upon expiry of 120 days, no such rigorous language has been used in Rule 5 of DHC Rules. Rather, Rule 5 stipulates that upon expiry of 45 (forty-five) days, the Registrar has to place the matter before Court for further orders. Therefore, even if the Registrar has no power to condone the delay beyond the period of 45 (forty-five) days, the Court can condone the delay even beyond the said period and take the replication on record.
c)    Rule 16 of the DHC Rules stipulates that nothing in the DHC Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for meeting the ends of justice or to prevent the abuse of the process of Court and the said provision could have been well invoked by the Court. 
d)    It was submitted that Rules 14 and 16 of the DHC Rules vest sufficient powers in the Court to relax the period prescribed in Rule 5 and permit filing of the replication beyond the period of 45 (forty-five) days. It was sought to be canvassed that if it is held that there is no power vested in the Court to condone the delay in filing the replication beyond the period of 45 (forty-five) days, then Rules 14 and Rule 16 of the DHC Rules will become superfluous.
e)    Rule 5 of the DHC provides that after the period of 45 (forty-five) days, the Registrar has to place the matter before the Court for passing appropriate orders, it postulates that discretion still vests in the Court to accept the replication even beyond the period of 45 days, on sufficient reasons being offered as to why the same was not filed within the prescribed time. On these lines, an argument was sought to be made that if the Rule is not construed in this manner, the words “for appropriate orders” used in Rule 5, will be rendered nugatory.
f)    The High Court being a Constitutional Court, has the inherent power to accept replications even beyond the time prescribed in the DHC Rules and the said power cannot be circumscribed or curtailed in any manner.

Relevant Rules:

Relevant rules of the Delhi High Court (Original Side) Rules, 2018:

“5. Replication: The replication, if any, shall be filed within 30 days of receipt of the written statement. 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. For such extension, the plaintiff shall be burdened with costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/ deposited. In case no replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court. An advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along with the replication, shall be served on the defendant and the replication together with the said documents shall not be accepted unless it contains an endorsement of service signed by the defendant/ his Advocate.
14. Court’s power to dispense with compliance with the Rules: 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. 
[Provided where the Court/Judge is of the opinion that Practice Directions are required to be issued, he may make it suitable reference to the Hon’ble Chief Justice.]
16. Inherent power of the Court not affected: 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.”
(emphasis supplied)

Discussion and Findings of the Division Bench:

a)    The Division Bench observed that on a reading of Rule 5 of the DHC Rules, it is clear that the replication, if any, should be filed within a period of 30 (thirty) days from the date of receipt of the written statement. The word “shall” used in the said Rule postulates that the replication must be filed within 30 (thirty) days of the receipt of the written statement. The Registrar does not have the power to condone any delay beyond 30 (thirty) days. The permission to condone delay beyond the period of 30 (thirty) days, lies with the Court. If the Court is satisfied that the plaintiff was prevented by sufficient cause or for exceptional and unavoidable reasons from filing the replication within 30 (thirty) days, it may extend the time for filing the same by a further period not exceeding 15 (fifteen) days with a suffix appended to the Rule stating, “but not thereafter”. The phrase “but not thereafter” mentioned in the Rule indicates that the intention of the rule making authority was not to permit any replication to be entertained beyond a total period of 45 (forty-five) days. If any other interpretation is given to the said Rule, then the words “but not thereafter”, will become otiose. 
b)    Placing reliance on various judgments to interpret the words “but not thereafter”, the Division Bench of the Delhi High Court observed that wherever the phrase “but not thereafter” has been used in a provision for setting a deadline, the intention of the legislature is to treat the same as a peremptory provision. Thus, if Rule 15 of the DHC Rules mandates filing of a replication within a period of 30 (thirty) days reckoned from the date of receipt of the written statement, with an additional period of 15 (fifteen) days provided and that too only if the Court is satisfied that the plaintiff has been able to demonstrate that it was prevented to do so by sufficient cause or for exceptional and unavoidable reasons, can the time for filing the replication be extended for a further period not exceeding 15 (fifteen) days in any event, with costs imposed on the plaintiff. The critical phrase “but not thereafter” used in Rule 15 must be understood to mean that even the Court cannot extend the period for filing the replication beyond the outer limit of 45 (forty-five) days provided in the DHC Rules. Upon expiry of the said period, the plaintiff’s right to file the replication would stand extinguished. Any other meaning sought to be bestowed on the above provision, would make the words “but not thereafter”, inconsequential. 
c)    While pondering over as to who has the power to condone the permissible delay in filing of replication, the Division Bench has held that the Court must start with the assumption that every word used in a statute, has been well thought out and inserted with a specific purpose and ordinarily, the Court must not deviate from what is expressly stated therein. Since, the terms “Court” and “Registrar” have been defined in the DHC Rules and Rule 5 of the DHC Rules requires that the Court alone can extend the time to file the replication beyond the period of 30 (thirty) days from the date of receipt of the written statement. Even the discretion vested in the Court for granting extension of time is hedged with conditions and the outer limit prescribed is 15 (fifteen) days. If the replication is not filed within the extended time granted, the Registrar is required to place the matter back before the Court for closing the right of the plaintiff to file the replication.
d)    The Division Bench declared the provisions of DHC Rules as special provisions within the meaning of Section 29(2) of the Limitation Act, 1963 which stipulates that where any special or local law prescribes a time limit that is different from the one provided for under the Limitation Act, 1963, then Section 4 to Section 14 of the Limitation Act, 1963 would be expressly excluded. Since the language of Rule 5 of the DHC Rules shows that the intention of the rule making authority was to exclude the provisions of the Limitation Act, 1963, giving no power to the Court to condone any delay beyond the period of 45 days for accepting the replication, Rule 16 could not have been invoked to take on record the belatedly filed replication.
e)    The Division Bench distinguished Desh Raj (supra), a judgment relied upon by the petitioner/ plaintiff, by observing that in the said case, there was no occasion for the Supreme Court to deal with the scope and effect of Rule 5 of Chapter VII of the DHC Rules. 
f)    While dealing with the contentions of the petition/ plaintiff that a Constitutional Court cannot be denuded of the power to condone the delay in filing the replication even if the power of the High Court to condone delay in relation to periods prescribed in the DHC Rules has been circumscribed, the Division Bench relied upon Pallav Sheth v. Custodian, [(2001) 7 SCC 549], wherein the Supreme Court has observed that the power or jurisdiction under Article 226 of the Constitution of India has to be exercised in accordance with law, if any, enacted by the legislature. In case of apparent or likelihood of conflict, the provisions should be construed harmoniously.
g)    The Division Bench of the Delhi High Court concluded the discussion by holding that in case of any inconsistency, the provisions of the DHC Rules will prevail over the CPC. The inherent powers contemplated in Rule 16 of the DHC Rules are not to be exercised to overcome the period of limitation expressly prescribed in Rule 5 for filing the replication. Nor can Rule 5 of the DHC Rules 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 of the DHC Rules 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 (forty-five) days. Any other interpretation will result in causing violence to the DHC Rules.

Decision by the Supreme Court:

The Supreme Court dismissed the SLP filed against the decision of the Division Bench of Delhi High Court, vide its order dated June 28, 2021 in the case of Ram Sarup Lugani (Dead) v. Nirmal Lugani, [SLP (C) No. 15142 of 2020]. Therefore, the decision of the Division Bench of Delhi High Court in Ram Sarup Lugani (supra) has now attained finality.

Please find a copy of the order passed by the Supreme Court, here and a copy of the judgment passed by the Division Bench of the Delhi High Court here.  

This update has been contributed by R. Sudhinder (Senior Partner) and Shashank Dixit (Associate). 

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