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Delhi HC Flags Procedural Knot: Refers Written Statement Affidavit Row to Larger Bench
In a move poised to clarify a recurring procedural flashpoint in civil suits, the has referred a pivotal question to a larger bench, questioning whether a written statement filed within the 120-day limit but missing the mandatory affidavit of admission/denial of documents is a nullity ( ) or merely a fixable glitch.
Justice Subramonium Prasad, hearing an appeal by the in v. South Delhi Municipal Corporation & Ors [CS(OS) 330/2022], first condoned a delay in the chamber appeal before diving into the heart of the dispute. The case underscores tensions in the (Original Side) Rules, 2018, amid conflicting rulings from coordinate benches.
Roots of the Delay Drama
The saga began when plaintiff —a joint venture—sued SDMC and others. Defendants first appeared on , after summons. They filed a written statement on —just shy of the 120-day outer limit from first appearance—but without the required affidavit verifying admission or denial of the plaintiff's 472 documents. This affidavit arrived only on , post-deadline.
The Joint Registrar rejected it on
, citing
: Rule 2 demands filing within 30 days (extendable to 120 for cause); Rule 3 mandates the affidavit alongside, without which the WS
"shall not be taken on record"
; Rule 4 warns of
of plaintiff's documents if absent, and closure of filing rights beyond extensions.
SDMC sought condonation, blaming bureaucratic hurdles: voluminous records, internal vetting as a public body, elections, and drafting complexities. They argued the WS was timely; the affidavit a mere defect.
Plaintiff Strikes Hard: 'No Affidavit, No WS'
VK Sood's counsel insisted the incomplete filing wasn't a WS at all. Rule 3's "shall" is ironclad—omitting the affidavit guts the rule's purpose of swift pleadings. Curing defects post-120 days? Impossible. Even as a "defect," registry rules limit cures to 30 days.
They leaned on Unilin Beheer B.V. v. Balaji Action Buildwell (2019 SCC OnLine Del 12566), where a coordinate bench ruled such WS , triggering deemed admissions and potential decrees—aligning with the 2018 Rules' anti-delay ethos.
Defendants Push Back: 'Timely WS, Fixable Flaw'
SDMC countered: WS landed within 120 days; plaintiff filed rejoinder anyway, waiving objections. The affidavit delay? Justified by government processes. Citing COSCO International Pvt. Ltd. v. Jagat Singh Dugar (2022 SCC OnLine Del 1113), Neeraj Ahuja v. AIPIL Zorro Pvt. Ltd. (2024 SCC OnLine Del 3479), and Shefali Kohli v. Neena Chatrath (2024 SCC OnLine Del 2752), they argued it's a under —take WS on record post-cure, no .
These precedents distinguished Unilin , noting WS within time isn't void; absence of affidavit just risks deemed admissions, curable within limits.
Bench Weighs Precedent Clash, Upholds Judicial Order
Justice Prasad dissected the rift.
Unilin
saw Rules 3-4 as barring recordal outright, avoiding surplusage in
"shall not be taken on record"
and fulfilling the Rules' expedition goal—curbing vague denials plaguing old 1967 Rules.
Yet COSCO et al. viewed WS filing as valid if timely; affidavit absence a post-filing defect, curable separately—filing and recordal are distinct.
Invoking statutory interpretation canons—from Ramana Dayaram Shetty (1979) 3 SCC 489 (no superfluous words) to Muskan Enterprises (2024) 20 SCC 85 ("shall" often mandatory)—the judge favored literal reading: Rule 3's "shall" demands simultaneous filing.
But faced with
"divergent views by co-ordinate Benches,"
he invoked judicial discipline (
Dr. Vijay Laxmi Sadho v. Jagdish
, 2001 2 SCC 247;
State of Punjab v. Devans Modern Breweries
, 2004 11 SCC 26). No solo override—reference to larger bench essential for uniformity, as the issue "arises frequently."
Key Observations
“Rule 3 mandates that along with the Written Statement, the Defendant shall also file an Affidavit of admission/denial of documents without which the written statement shall not be taken on record.”
“Permitting Written Statement without an Affidavit of admission/denial of documents would render the word ‘shall’ in of the Rules as .”
“In view of the divergent views expressed by co-ordinate Benches of this Court on the issue in question... this Court considers it appropriate to refer the present issue for consideration by a Larger Bench.”
“The question that arises for determination is whether the filing of a Written Statement within the statutory period... but without being accompanied by an affidavit of admission/denial of documents, renders such filing in law or whether the absence of such affidavit constitutes a ...”
Verdict: Papers to Chief Justice, Future on Hold
The court framed the precise question for the larger bench:
"Whether the filing of a Written Statement within the statutory period prescribed under the
(Original Side) Rules, 2018, but without being accompanied by an affidavit of admission/denial of documents, renders such filing
in law or whether the absence of such affidavit constitutes a
, permitting the Written Statement to be taken on record upon subsequent compliance..."
If curable, remand to Joint Registrar for delay scrutiny; if , rejection stands. Matter urgently listed before the Chief Justice. This reference, echoing media summaries of the order, promises procedural clarity for Original Side suits, where pleadings delays have long bottlenecked justice.
Appearances: For plaintiff— , , ; for defendants— , ,
