No Litigant Can Assume As A Matter Of Right Court's Power To Condone Delay, Rights Accruing To Opposite Party Need To Be Kept In Mind: Delhi HC

The Delhi High Court has observed that no litigant can assume, as a matter of right, the Court's power to condone delay and that the rights accruing to opposite party on account of the delayed action also needs to be kept in mind while exercising such a power.

"While it is true that the power to condone delay is intended to advance substantive justice, nevertheless, procedure cannot be given a complete go by. The powers of the court to condone delay is to be used in appropriate cases. No litigant can assume that, as a matter of right, the delay in taking steps would be condoned, because procedure is the handmaiden of substantive justice," Justice Asha Menon observed.

Furthermore, the Court observed that the reasons given for explaining the delay are of paramount importance and not the length of the delay. 

"The shortness of delay alone ought not to suffice for exercise of discretion to condone it. Cogent and clear explanations have led the courts to condone the delay, even of five years in filing the pleadings," the Court said.

The petition was filed challenging an order passed by Additional District Judge of Karkardooma Courts dated 6th April 2021 in a civil suit.

The petitioner (defendant in the suit) had sought setting aside of the impugned order whereby the delay in filing his written statement along with reply to the application under Order XXXIX Rules 1 and 2 the CPC was not condoned.

The summons were served upon petitioner on January 11, 2020, however, the written statement was not filed until 20th August, 2020. An application was therefore filed by the Petitioner under Order VIII Rule 1 CPC seeking condonation of delay in filing the written statement and reply to application which was opposed by the respondent/plaintiff.

The Trial Court dismissed the said application on the ground that there was "no plausible explanation and coherent reason" explaining the delay in filing the written statement and reply to application.

It was the case of the petitioner that owing to the lockdown and the difficulties being faced by counsel in filing cases across the country, the Supreme Court had directed that while computing the period of limitation, the period from 15th March, 2020 till 14th March, 2021 shall stand excluded.

In light of this, it was submitted that the powers to condone the delay in filing the written statement up to a period of 120 days from the date of service of summons.

On the other hand, the Respondent submitted that the application for condonation of delay contained only bald averments and that there was no explanation as to why, despite the recovery of the files on 14th March, 2020, the written statement was not filed till 20th August, 2020, even though the lockdown had been eased and filing permitted by June, 2020.

"A mere claim that further delay in filing the written statement and reply was caused due to Covid-19 induced circumstances, as the working of the office of the counsel for the petitioner/defendant could normalize only by the middle of August, 2020, offers no explanation for the delay occurring prior to the lockdown and during the partial opening of the courts. Neither does it explain the delay from 1st June, 2020 to 20th August, 2020," the Court observed.

The Court further observed that in the present case, there was no explanation for the inaction of the petitioner/defendant from 14th March, 2020 till the actual date of filing of the written statement and the reply on 20th August, 2020.

"There is also nothing in the orders of the Supreme Court that suggests that when an action has not been taken within the prescribed period of limitation, the merits of the application for condonation of delay need not be looked into and the same is to be allowed automatically. Only where the limitation has expired during the lockdown and even the extended period, which can be allowed in the discretion of the court, also expired in the lockdown period, a party can claim that no delay has occurred as the Supreme Court had enlarged limitation periods prescribed," the Court observed.

In light of the aforesaid, the Court held that the Trial Court rightly dismissed the application under Order VIII Rule 1 CPC and that there was no perversity in the impugned order.

Accordingly, the petition was dismissed.

Title: BHARAT KALRA v. RAJ KISHAN CHABRA

 Click Here To Read Order