Case Note & Summary
The Supreme Court dismissed the appeal filed by Desh Raj against the order of the Delhi High Court which upheld the Civil Court's decision to close his right to file a written statement and strike off his defence in a suit for specific performance. The dispute arose between two brothers over ancestral property in Delhi. The respondent, Balkishan (since deceased, represented by proposed LR Rohini), filed a suit for specific performance of an agreement to sell dated 17.03.2017 for Rs 7.5 lakhs, claiming that the appellant failed to honour the agreement after receiving Rs 1 lakh as earnest money. The appellant was served on 01.05.2017 and granted multiple opportunities to file a written statement, including a final opportunity on 18.09.2017 subject to payment of Rs 3,000 costs, but failed to comply. The Civil Court closed his right on 11.10.2017 and struck off his defence. The High Court dismissed the revision petition relying on Oku Tech Pvt Ltd v. Sangeet Agarwal, which held that the timeline for filing written statement under Order VIII Rule 1 CPC as amended by the Commercial Courts Act, 2015 is mandatory. The Supreme Court held that the High Court erred in applying Oku Tech as it pertains to commercial disputes, whereas the present suit is non-commercial. The unamended Order VIII Rule 1 CPC is directory, and courts have discretion to condone delays. However, on facts, the appellant was granted numerous opportunities, including beyond the 90-day period, and failed to provide any reasonable explanation for the delays. The Court found that the appellant's conduct amounted to gross negligence and abuse of process, and therefore, no case for exercise of discretion was made out. The appeal was dismissed, upholding the closure of the right to file written statement and striking off defence.
Headnote
A) Civil Procedure - Written Statement - Order VIII Rule 1 CPC - Directory Nature for Non-Commercial Disputes - The unamended Order VIII Rule 1 CPC, applicable to non-commercial disputes, is directory and courts have inherent discretion to condone delays in filing written statement, unlike the amended provision for commercial disputes which is mandatory. However, such discretion must be exercised judiciously and not to condone gross negligence or deliberate delays. (Paras 14-16) B) Civil Procedure - Written Statement - Striking Off Defence - Repeated Delays - Where a defendant fails to file written statement despite multiple opportunities, including beyond the 90-day period, and offers no reasonable explanation, the court may close the right to file and strike off defence. The appellant's failure to comply with deadlines and pay costs, coupled with lack of justification, warranted such action. (Paras 17-20) C) Civil Procedure - Commercial Courts Act, 2015 - Applicability - Section 16 - The amendments to CPC under the Commercial Courts Act, 2015 apply only to commercial disputes as defined under Section 2(c). A suit for specific performance of an agreement to sell residential property not used exclusively in trade or commerce is non-commercial, and the unamended CPC governs. (Paras 11-13, 15)
Issue of Consideration
Whether the High Court erred in dismissing the revision petition by applying the ratio of Oku Tech Pvt Ltd v. Sangeet Agarwal (applicable to commercial disputes) to a non-commercial suit, and whether the appellant's right to file written statement should be restored despite repeated delays.
Final Decision
The Supreme Court dismissed the appeal, upholding the orders of the Civil Court and the High Court closing the appellant's right to file written statement and striking off his defence. No order as to costs.
Law Points
- Order VIII Rule 1 CPC is directory for non-commercial disputes
- but courts retain discretion to condone delays only in exceptional circumstances
- repeated and unexplained delays despite multiple opportunities justify striking off defence
- distinction between commercial and non-commercial disputes under CPC as amended by Commercial Courts Act
- 2015.
