Ram Sarup Lugani & Anr v/s NirmalLugani & Others
- By Kanishka
- Judgment Analysis
Name of the case – Ram Sarup Lugani & Anr v/s NirmalLugani & Others
FAO(OS). No. 47 of 2020 & CM.APPL. Nos. 21622-23 of 2020
Decided On,
19 October 2020
At,
High Court of Delhi
By THE HONOURABLE MS. JUSTICE HIMA KOHLI & THE HONOURABLE MR. JUSTICE SUBRAMONIUM PRASAD
For the Appellants: Tanmaya Mehta, Aditya Garg, Advocates. For the Respondents: R1 to R6, Faisal Sherwani, Gurpreet Singh Kahlon, Advocates.
ISSUE
Is the procedural requirement under Rule 5 of Chapter VII of Delhi High Court (Original Side) Rules, 2018, admitting no extension beyond 45 days subject to any judicial discretion under Rule 16, Section 151 CPC, or the Limitation Act to accept a delayed replication?
RULE
Rule 5, Chapter VII of the DHC (Original Side) Rules, 2018 provides that replication should be filed within 30 days from the date of receipt of the written statement, extendable by up to 15 days for exceptional and unavoidable reason “but not thereafter.”
The words “but not thereafter” have been interpreted judicially to be both preemptory and imperative, so that the Court has no discretion to condone delay after the outer limit (e.g., Himachal Techno Engineers, (2010) 12 SCC 210; New India Assurance v. Hili Cold Storage, (2020) 5 SCC 757).
According to Section 29(2) of the Limitation Act, special/local laws may provide different limitation periods, and if they provide for exemption of Sections 4 to 14 of the Act either explicitly or by reasonable implication courts will not apply the Limitation Act to bar/extend time (Ref: Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133).
The inherent powers under Section 151 CPC or Rule 16 of the DHC Rules will not override clear-cut statutory provisions dealing with the procedure. The courts can only exercise such powers in the absence of specific procedural rules and not to frustrate statutory requirements (Ref: K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275; State of U.P. v. Roshan Singh, (2008) 2 SCC 488).
Section 129 CPC Gives Authority to the High Courts to make their own rules of procedure for the original side Respectively. These override the CPC wherever they are inconsistent (Print Pak Machinery Ltd. v. Jay Kay Paper Converters, AIR 1979 Del 217).
ANALYSIS
In the case it Determines, Rule 5 explicitly prescribes a 30-day time frame for filing replication, extendable by 15 days only—”but not thereafter.” It has been held time and again by the Supreme Court that where the words are used, they convey the legislative intention to render the provision obligatory and do not really leave any discretion with the judge to extend the time beyond the outer limit.
The contention of the appellant that Rule 16 (inherent power) or other DHC Rules or CPC provisions (i.e., Section 151) may be relied upon to permit belated replication is untenable. Such powers cannot be resorted to in order to avoid express restrictions. The DHC Rules are a special law as per Section 29(2) of the Limitation Act, and their scheme inherently excludes the application of Sections 4 to 14 of the Act.
The court properly declined to rely on Desh Raj, since the CPC’s Order VIII Rule 1 was declared directory therein, because DHC Rules constitute a self-contained code for the original side of the High Court and are Truly designed to override the Respecive CPC to the extent of The conflict. Further, the CPC does not even make filing of a replication mandatory—its allowance and regulation are creatures of DHC Rules exclusively.
Thus, accepting a replication after 45 days would make the word “but not thereafter” nonsensical and amount to contravening the strict procedural requirement. Such deviation would amount to judicial legislation, which the courts cannot exercise.
CONCLUSION
The court cannot receive or grant a replication that is filed more than 45 days as mandated under Rule 5 of the DHC (Original Side) Rules, 2018. The said rule is mandatory and not directory and cannot be displaced by exercising the inherent powers in terms of Rule 16 or Section 151 CPC, nor can the delay be waived under the Limitation Act because it is excluded expressly or impliedly. The filing right of replication stands extinguished by lapse of time, and any interpretation contrary thereto would frustrate the legislative scheme and purpose of the Rules.
