Order 9

Order Details: COPY OF ORDER
Pdf Text: CS SCJ 869/2025 Ajay Gupta Vs. Santosh Kumar Pg. no.1/6
IN THE COURT OF SH. SUNIL KHATRI, CIVIL JUDGE-06,
CENTRAL DISTRICT, TIS HAZARI COURTS: DELHI
CS SCJ No. 869/2025
AJAY GUPTA
.....PLAINTIFF
VERSUS
SANTOSH KUMAR .....DEFENDANT
ORDER
1. Vide this order, I shall dispose off the application of
the plaintiff filed U/O VIII Rule 1 CPC and another application
U/S 151 CPC filed by the defendant.
2. The defendant has filed the aforesaid applications
U/O VIII Rule 1 to seek condonation of delay of 83 days in filing
the WS. Another application U/S 151 CPC has been filed on
behalf of the defendant to recall the order dated 15.10.2025
whereby the right to file WS by the defendant was closed. In his
application U/O VIII Rule 1 CPC defendant has stated that
summons of the present suit were served upon the defendant.
However, some pages were dim and illegible which were
apprised to the Court on 27.08.2025. Vide order dated
27.08.2025, court was pleased to grant 30 days to file the WS by
the defendant. However, after getting the brief from the
defendant, Ld. counsel for defendant shared the draft of the WS
with the defendant for appropriate comments and suggestions
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which were needed to be incorporated in the WS and only
thereafter the draft has to be finalized. Further it is stated in the
application U/S 151 CPC that the final draft of the WS was
shared with the defendant, however, the same could not got
signed because the defendant was not in Delhi and traveling to
Himachal Pradesh for business purpose. Since, the defendant
came back to Delhi then only WS was signed by him, in the
meantime order dated 15.10.2025 was passed by the court.
3. He relies upon the judgment of Hon’ble High Court
of Delhi ‘
Rajesh Kathpal vs. Subh Steel’ 2022 SCC Online Del
3403 to contend that the starting point of time of filing the time
of WS has to be the date when the suit along with documents
were provided to the defendant. He also relies upon judgment of
Hon’ble Supreme Court
Kailash vs Nanhku & Ors., (2005) 4
SCC 480 wherein it was observed by the Hon’ble Supreme Court
that in case the court comes to the finding that defendant was not
grossly negligent in filing the WS then extension of time may be
condoned by the Court.
4. Per contra, joint reply was filed by the plaintiff to
the aforesaid applications stating therein that impugned order
dated 15.10.2025, whereby the right to file WS by the defendant
was closed can be challenged by the defendant within 30 days.
However, the same has been challenged by way of aforesaid
applications on 20.12.2025 which is clearly barred by limitation.
It is further submitted that summons of the present suit were
served upon the defendant on 22.08.2025. However, to gain
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sometime, Ld. Counsel for defendant
malafidely stated that some
pages of the plaint were illegible. Thereafter, copy was again
supplied to the defendant on 28.08.2025 and the delay of more
than 83 days in filing the WS is due to lackcity and negligence of
the defendant which cannot be condoned.
5. Ld. counsel for plaintiff also relied upon
Kailash vs
Nanhku & Ors., (2005) 4 SCC 480 to contend that in no case the
defendant shall be permitted to seek extension of time when the
court is satisfied that it was due to laving or gross negligence on
the part of the defendant or his counsel, the delay has happened.
Reliance is also placed upon judgment dated 21.11.2025 passed
by Hon’ble High Court of Delhi in case FAO (OS) 24/2025
titled as
Mr. Sunny Sangwan vs. Dr. Saurabh Shandilya & Anr.
wherein it has been reiterated that timelines prescribed U/O VIII
Rule 1 CPC for filing of WS has to be strictly complied with and
any extension beyond the outer limit of 90 days can be granted
only in exceptional circumstances.
6. I have heard the arguments on behalf of both the
parties and perused the material available on record.
7. Order 8 Rule 1 CPC provides as follows:
“1. Written Statement.—The Defendant shall,
within thirty days from the date of service of
summons on him, present a written statement of his
defence:
Provided that where the defendant fails to file the
written statement within the said period of thirty
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days, he shall be allowed to file the same on such
other day, as may be specified by the Court, for
reasons to be recorded in writing, but which shall
not be later than ninety days from the date of
service of summons.
*[Provided that where the defendant fails to file the
written statement within the said period of thirty
days, he shall be allowed to file the written
statement on such other day, as may be specified by
the Court, for reasons to be recorded in writing and
on payment of such costs as the Court deems fit, but
which shall not be later than one hundred twenty
days from the date of service of summons and on
expiry of one hundred twenty days from the date of
service of summons, the defendant shall forfeit the
right to file the written statement and the Court shall
not allow the written statement to be taken on
record.]”
8. In case titled as
R.M. Gadi vs. Subhash Chandra
AIR 2007 SC, it has been held by the Court that extension of
time indiscriminately U/O VIII Rule 1 defeat the object sought to
be achieved by the amendments in the court. The extension of
time beyond 90 days of the service of summons must be granted
only on the basis of clear satisfaction or the justification for
granting such extension. Further, the said power has to be used
only in rare and exceptional cases.
9. In the view the above, defendant has to file his WS
within 30 days from the date of service of summons. Provided
that in case of failure of the defendant, to file the WS within the
said period of 30 days, the court may allow him to file the WS
for reasons to be recorded in writing upto a period which shall
not be later on 90 days from the date of service of summons. In
the present case, the summons were served upn the defendant
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personally on 22.08.2025. At request of the ld. counsel for the
defendant that some pages of the plaint were not legible, plaintiff
was directed to supply the legible copy of the plaint and annexed
documents to the defendant on 27.08.2025. Admittedly, the
defendant or his counsel has received the legible copy of the
plaint on 27.08.2025. Therefore, taking the starting point as
27.08.2025 for the purpose of calculating time period required
for filing the WS, outer limit of 90 days to file the WS by the
defendant had expired on 27.11.2025. As the defendant failed to
file his WS within 30 days time given on 27.08.2025, his right to
file WS was closed by the court on 15.10.2025. On the said date
also, Ld. counsel for the defendant has appeared and provided no
justification for not filing the WS within 30 days time granted by
the court.
10. In view of the law laid down by the Hon’ble High
Court and Hon’ble Apex court, the extended period of time taken
by the defendant to file the WS beyond the 90 days period
provided U/O VIII Rule 1 CPC can only be condoned in case the
defendant satisfied the court that due to exceptional
circumstances he was prevented from filing the WS within the
statutory time period. In the present case, the only reason
mentioned by the defendant in his application is that defendant
was not present in Delhi when the WS was shared by his counsel
with him as he was traveling to Himachal Pradesh for business
purpose.
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11. The defendant has not mentioned the dates as to when he
was traveling to Himachal Pradesh and when he reached Delhi.
No proof of traveling has been placed on record. Moreover, as
per the address mentioned in affidavit, the defendant is resident
of Delhi. Therefore, it cannot be said that he did not have the
opportunity to sign the WS within the statutory period.
Therefore, the bald averments made by the defendant in the
present application do not inspire the confidence of the court.
These circumstances show that despite the availability of
sufficient time, defendant has failed to file the WS within the
statutory period. In view of the above, there is no ground to recall
the order dated 15.10.2025 and allow WS filed by the defendant
to be taken on record. Accordingly, the aforesaid applications
U/O VIII Rule 1 CPC and application U/S 151 CPC are
dismissed being without any merit.
Announced in the court
on 07.02.2026.
(Sunil Khatri)
Civil Judge-06, Central District
Tis Hazari Courts, Delhi
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