THe LIMITATION PERIOD for
filing WriTten statEment IN A NON COMMERCIAL SUIT
In
a recent judgment rendered on 23rd August 2024 in a matter captioned
as Manhar
Sabharwal Vs High Court of Delhi & Ors bearing no. W.P.(C) 15091/2023, the division
bench of Delhi High Court in a petition in the nature of public interest was called upon to decide constitutionality of Rule 4, Chapter VII of the Delhi High
Court (Original Side) Rules, 2018 (“DHC Original Side Rules”), which mandates a
strict timeline of 120 days for filing of written statement even in
non-commercial matters. It was contended that the said rules creates unfair
discrimination and unfair treatment to a litigant before Delhi High Court in
original side and that too only on the basis of pecuniary limit of jurisdiction
in non commercial matters. According to petitioner, the District Courts in
Delhi are vested with the power to condone delay beyond 120 days in filing
written statement in non commercial matters, since, it is governed by Order
VIII Rule 1 of Code of Civil Procedure, but such delays cannot be condoned on
account of Rule 4, Chapter VII of DHC Original Side Rules. It was thus prayed
that the aforesaid rule applicable to Delhi High Court be declared ultra vires and unconstitutional.
The grounds raised by petitioner in support
of their contentions are as under:
(i)
The DHC Original Side Rules, as they
exist in the present form, are discriminatory and violative of Article 14 in as
much as the power of a Judge to take written statement on record post 120 days,
is retained for litigants in District Courts of Delhi, where the DHC Original
Side Rules, do not apply. There is no rationale for taking away such discretion
only from the High Court Judge for litigants before the High Court, who differ
only on pecuniary jurisdiction with litigants in Subordinate Courts;
(ii)
The above Rule takes away discretion in
a Judge of the High Court in condoning
delay in filing written statement, thus, causing hardship to litigants;
(iii)
The
Rule is contrary to Articles 14, 141, 142 and 144 of the Constitution of
India;
(iv)
The said rules cannot apply in high
court as it runs counter to the Clause 13 of List III – Concurrent List of
Seventh Schedule of the Constitution of India, read with Sections 122 to 128 of
the CPC;
(v)
The Clause 13 of List III – Concurrent
List of Seventh Schedule of the Constitution of India provides legislative
competence to Union and States for framing laws relating to civil procedure,
including all matters that are included in the CPC at the commencement of the
Constitution. In this backdrop, the power of High Court to make Rules under
Section 129 of CPC is confined to what a court can do in a particular suit, in
exercise of powers under Original Civil jurisdiction. The Rules therefore could
only be made in sync with Sections 122 to 128 of CPC and recourse to Section
129 CPC may not be proper, given a clear mechanism under Sections 122 to 128
CPC.
(vi)
The Rule making power with a High Court
cannot extend to make Rules that restrict time provided in a Statute. When CPC
prescribes time to file written statement, which is permissible to be extended
by a Judge hearing the matter;
(vii)
When Sections 124 to 126 of CPC require
previous approval of Government of the State or Central Government, which
provide that Rules made under the said provisions of CPC and that will be
subject to the previous approval of the Government. Such Rules are required to
be published under Section 127. Therefore, the Rules, even under Section 122 or
129, can only be procedural. Removal of discretion from a Judge altogether, may
not be procedural;
(viii)
Assuming that the impugned Rule could
have been made under Section 129 CPC, still, it should still have been subject
to procedures and pre-requisites, as provided under Sections 122 to 128 of CPC;
(ix)
The impugned Rule in the present form
is beyond the competence of The High
Court, since, it takes away discretion of a Judge of the High Court to
condone the delay in filing written statement. It is thus a substantive rule
and does not remain procedural;
(x)
The Delhi High Court Rules cannot be
construed in a manner so as to do away
with the discretion of a Judge conferred upon him by a statute, i.e., the CPC,
to condone delay,
RELIANCE
To buttress their point, the petitioner
relied upon the following judicial precedents:
|
S.N |
PARTICULARS/Title |
Citation |
|
1. |
Vinay
Kumar GB Vs. Sudhir Kumar and Another |
2023 SCC OnLine
Del 968 |
|
2. |
State of
Uttar Pradesh & Others. Vs. M/s Satish ChandShivhare and Brothers |
2022 SCC
OnLine SC 2151 |
|
3. |
Desh Raj Vs. Balkishan |
(2020) 2
SCC 708 |
|
4. |
Atcom
Technologies Limited Vs. Y.A. Chunawala and Company and Others |
(2018) 6 SCC 639 |
|
5. |
Raj Kumar
Yadav Vs. Samir Kumar Mahaseth & Others |
(2005) 3 SCC 601 |
|
6. |
Vinod
Seth Vs. Devinder Bajaj and Another |
(2010) 8 SCC 1 |
|
7. |
Sambhaji & Ors. Vs. Gangabai & Ors. |
(2008) 17
SCC 117 |
|
8. |
Salem Advocate Bar Association, T.N. Vs. Union of India |
(2005) 6 SCC 344 |
|
9. |
Kailash Vs. Nanhku & Others |
(2005) 4 SCC 480 |
CONTENTIIONS
OF RESPONDENT
Per
contra, the respondent’s contentions were as under:
(i)
As the DHC Original Side Rules are
traced to Section 7 of the DHC Act. And since, Section 7 of the said Act has
not been challenged. Therefore, Rule 4 is not open to challenge on the ground
of ultra vires.
(ii)
Section 129 of the CPC specially refers
to the Rules framed by a High Court by overriding provisions of the CPC.
Section 129 CPC is non- obstante;
(iii)
The impugned Rule has overriding effect
and thus is protected, even if the same is inconsistent or contrary to the CPC,
(iv)
The judgment of Supreme Court in the
case of Kailash Vs. Nanhku & Others (supra) was in the
context of interpretation of Order VIII Rule 1 of CPC only and shall have no
applicability on Delhi High Court Rules;
(v)
Under Section 129 CPC, the Rules of the
High Court prevail over other provisions of the CPC. As such, Rule 4 cannot be
challenged on the ground, being contrary to the judgment of the Supreme Court qua
Order VIII Rule 1 CPC.
Reliance on behalf of respondent
|
S.N |
PARTICULARS/Title |
Citation |
|
1. |
Ram Sarup Lugani and Another Vs. Nirmal Lugani and Others |
2020 SCC OnLine Del
1353 |
|
2. |
Iridium India Telecom Ltd. Vs. Motorola Inc. |
(2005) 2 SCC 145 |
|
3. |
M/S. Print Pak Machinery Ltd. Vs. M/S. Jay Kay Papers Converters |
1979 SCC OnLine Del 123 |
|
4. |
Gautam Gambir Vs. Jai Ambay Traders and Others |
2020 SCC OnLine Del 2621 |
|
5. |
Akash Gupta Vs. Frankfinn Institute of AIR Hostess Training, |
2006 SCC OnLine Del 66 |
FINDINGS
AND ANALYSIS:
The high court has noted that that the
DHC Original Side Rules have been framed by the High Court in terms of the
authority, as vested under Section 129 of the CPC, which reads as under:
129. Power of High Courts to make rules
as to their original civil procedure –
“Notwithstanding anything in this Code, any High Court [not
being the Court of a Judicial Commissioner] may make such rules not
inconsistent with the Letters Patent [or order] [or other law] establishing it
to regulate its own procedure in the exercise of its original civil
jurisdiction as it shall think fit, and nothing herein contained shall affect
the validity of any such rules in force at the commencement of this Code.”
The above shall reflect that the said
Section contains a non-obstante clause, meaning thereby, that the
provisions, as contained in the said Section, will have an overriding effect on
other provisions of the CPC. The effect of non-obstante clause is to
give the enacting part of the Section, an overriding effect over the provisions
of the Act, in case of any conflict.
It was further
observed that there cannot be any doubt about the principle of harmonious construction.
However, what confronts us is not a mere question of two independent provisions
of CPC being in conflict. The provisions of CPC, which we have extracted, and
the historical development of the different sections to which we have referred,
do not suggest a situation of mere conflict.
The High Court has held that taking into account the extrinsic evidence
i.e. the historical circumstances in which the precursor of Section 129 was
introduced into the 1882 Code by a specific amendment made in 1895, we are of the
view that the non obstante clause used in Section 129 is not merely
declaratory, but indicative of Parliament's intention to prevent the
application of CPC in respect of civil proceedings on the original side of the
High Courts.
The High court has further noted that with
regard to operation of a non-obstante clause, Supreme Court in the case
of Union of India and Another Vs. G.M. Kokil and Others 1984 Supp SCC 196, has held as under:
11. .......It
is well-known that a non obstante clause is a legislative device which is
usually employed to give overriding effect to certain provisions over some
contrary provisions that may be found either in the same enactment or some
other enactment, that is to say, to avoid the operation and effect of all
contrary provisions.....
Thus, it is held as under in Manhar Sabharwal (Supra) in para 8:
“Considering
the aforesaid discussion, it is evident that Section 129 CPC, which is couched
in a non-obstante clause, will
have an overriding effect over other provisions of the CPC, in case of any
conflict. Thus, the DHC Original Side Rules, which have been enacted in terms
of the authority conferred by Section 129 CPC, will essentially and necessarily
have an overriding effect over other provisions of the CPC. In case of any
conflict, the DHC Original Side Rules shall prevail”.
The High Court also relied upon a Full
Bench of the High Court in the case of M/S. Print Pak Machinery Ltd. Vs.
M/S. Jay Kay Paper Converters 1979
SCC OnLine Del 123 and held that in case of any inconsistency,
the DHC Original Side Rules shall prevail over the CPC. It has been held that
Section 129 CPC, subordinates the other provisions of the CPC, to Rules made by
a High Court for its Original Side. Further, the Rules made by High Court to
regulate its practice and procedure, are in the nature of Special Law, and have
precedence over the CPC, which is a General Law.
Accordingly, it is held that in
the event of inconsistency, the Original Side Rules prevail on the original
side of this Court and not the Civil Procedure Code; and, the amending Act of
1976 has made no difference in this respect. Moreover, In Chapter VII, Rule 4 of the DHC
Original Side Rules, the phrase “but not
thereafter‟ is used, to stipulate that the period
of filing written statement may be extended beyond the period of thirty days,
for a further period not exceeding ninety days, but not thereafter. The phrase “but not thereafter‟, as used in various Legislations, and interpretation of the
said phrase, as given in various judgments, have been dealt with by the
Division Bench of the Delhi High Court
in the case of Ram Sarup Lugani and Another Vs. Nirmal Lugani and Others 2020
SCC OnLine Del 1353, wherein, it has been held, as under:
15.
This is not the first time that
the phrase, ―but not thereafter‖
have been used in the statute. The said
preemptory words have been used in other provisions that have come up for
interpretation before the Supreme Court. In Union of India v. Popular
Construction Co., reported as (2001) 8 SCC 470, the words
―but not thereafter‖
were used in relation to the power of the court to condone the
delay in challenging the award beyond the period prescribed under Section 34 of
the Arbitration and Conciliation Act, 1996 and the Supreme Court observed as
below:—
In view of the aforesaid discussion, it is held by the Division bench
of Delhi High Court that in case of any inconsistency, the provisions of the
Delhi High Court (Original Side) Rules, 2018 will prevail over the Civil
Procedure Code. 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.
Thus, it was held that the phrase “but
not thereafter‟, provides for an action, which is
mandatory in nature. While holding that DHC Original Side Rules, being Special
Rules, shall prevail over the provisions of the CPC, which are General in
nature, in the aforesaid judgment of Ram Sarup Lugani (supra), it
has been observed, as under:
24. A reading of the relevant
provisions of the DHC Rules shows that it is a special provision within the
meaning of Section 29(2) of the Limitation Act (for short „the Act‟), that contemplates 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. It is well settled that even in a case where the special
law does not exclude the provisions of Section 4 to Section 14 of the
Limitation Act, 1963 by an express provision or reference, then too, if it is
clear from the mandate or the language of the statute, the scheme of the
special law will exclude the application of Section 4 to Section 14 of the
Limitation Act, 1963. (Ref:
Hukumdev Narain Yadav v. Lalit Narain Mishra, reported as (1974) 2 SCC 133).
It is reiterated by the High Court that
Section 7 of the DHC Act confers authority on the High Court to make Rules with
respect to practice and procedure for the exercise of its original civil
jurisdiction. The words „practice and procedure‟
have a very wide connotation, and will include the power to regulate and
specify the method, by which the court will conduct its proceedings. (Ref: Akash
Gupta Vs. Frankfinn Institute of Airhostess Training, 2006 SCC OnLine Del 66)
Hence, it is concluded that Rule 4 of Chapter
VII of DHC Original Side Rules, has been framed under Section 129 of the CPC
and Section 7 of the DHC Act. Section 129 of the CPC empowers the High Court to
regulate its own procedure in exercise of its civil jurisdiction. Section 7 of
the DHC Act further empowers this Court to make Rules and Orders with respect
to practice and procedure for exercise of its ordinary original civil
jurisdiction. The DHC Original Side Rules, being special law, will prevail over
the CPC, and have an overriding effect over the general provisions of the CPC.
Accordingly, it is held that the plea raised by the petitioners regarding Rule
4, Chapter VII of the DHC Original Side Rules, being discriminatory in nature,
is totally misplaced. The very distinction, between procedures of the High
Court and Civil Court, is found ingrained in Section 129 of the CPC. The said
Section recognizes special Rules for the High Court, and thereby, itself makes
a distinction between High Court and Civil Court. When the CPC itself envisages
distinction in the practice and procedure between High Court and Civil Court,
the Rules framed thereunder, cannot be challenged on the anvil of
discrimination. Therefore, Rule 4 Chapter VII of DHC Original Side Rules cannot
be challenged on the ground of being contrary to the aforesaid judgment, which was
delivered in the context of Order VIII Rule 1 CPC. The amended provisions of
Order VIII Rule 1 CPC, would not apply to the suits on the Original Side of the
High Court, and such suits would continue to be governed by the High Court
Original Side Rules.
Thus, it is clearly reflected that in a
non commercial suit before Delhi High Court in terms of Delhi High Court Rules
as referred to above, the limitation period in filing written statement cannot be condoned beyond 120 days.
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Anil
k Khaware
Founder & Senior Associate
Societylawandjustice.com
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