Delhi HC on condonation of delay in refiling

On December 13, 2018, the Hon’ble Delhi High Court (hereinafter “Delhi HC”) passed judgement in the matter of Narender Kumar Sharma v Maharana Pratap Educational Center (2018 SCC OnLine Del 13146). The application arose from a delay in re-filing of an accompanying appeal and praying for condonation of the same. The judgement juxtaposes the fact that delay in filing and delay in re-filing of a written statement, both cannot be kept on a similar footing. This limitation for filing a written statement is provided by the Code of Civil Procedure, 1908 (hereinafter “CPC”). Facts The applicant filed an appeal against an order dated October 10, 2018 whereby the right of the defendants for filing a written statement had expired, as per the 120 days limit prescribed under the CPC. Initially, the written statement was filed within 120 days but was rejected due to an office objection and subsequently there was a delay in re-filing the written statement with the necessary corrections. Issues The issue before the Delhi HC was whether the court might condone the delay in re-filing of a written statement in light of the limitation prescribed under Order VIII rule 1 of the CPC. Arguments Advanced The Applicant contended that the delay was not in the filing the written statement but was rather in re-filing of the written statement after appropriate corrections being made to it. Further, the delay was a result of serious issues being faced by the counsel for the applicant. The Respondents submitted that re-filing tantamounts to a fresh filing, and the delay could not be condoned. In support of their assertion, the Respondents placed reliance on the judgement of the division bench of the Delhi HC in Northern Railway v. Pioneer Publicity Corporation Private Limited (hereinafter ‘Northern Railway’). Analysis and Ruling The Delhi HC referred to various case laws dealing with the question, how refiling of written statement stands on a different footing than filing a written statement. It further suggested alternative remedies the court may adopt in place of dismissing a delayed re-filing of an application. The Delhi HC cited the 1998 judgement of the division bench of its own court in S.R. Kulkarni v. Birla VXL Limited , wherein it was held that, the condonation of delay in re-filing must be seen from a different viewpoint, and that a delay in re-filing is not subject to the same rigorous tests in a petition filed under section 5 of the Limitation Act. Secondly, the court may refuse to condone the delay in re-filing but may also pass any other appropriate order including the imposition of costs, to compensate the other party. The Delhi HC also examined the decision of the Hon’ble Supreme Court in the matter of Indian Statistical Institute v. Associate Builders, in which the SC reiterated that a delay in re-filing was not subject to the same rigorous tests, as in the instance of a delay in filing of an initial petition. Further, the Delhi HC pointed out that the Northern Railway judgment relied upon by the Respondents had been set aside by the Supreme Court. Therefore, the Delhi HC, allowed the appeal after condoning the delay, and passed a direction that the written statement be taken on record subject to it being filed within one week, after imposing cost of Rs. 15,000/-. Download Pdf