IMPORTANT POINT
Although Order VIII Rule 1 is directory and discretionary, parties cannot be permitted to file written statement at their sweet will.

JUDGMENT :

1. Leave granted.

2. This Civil Appeal is directed against order dated 26.11.2018 passed by the Delhi High Court whereby appellant’s revision petition against the order of the Civil Court which closed his right to file written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) and struck-off his defence owing to repeated delays and non-adherence of prescribed deadlines, has been dismissed.

FACTS

3. The appellant and the respondent are brothers and own one floor each of ancestral property bearing No. 142 in Devli Village, Delhi. The ground floor was possessed and owned by the respondent, whereas the first floor was in the name of the appellant.

4. It has been claimed that in February 2017, the respondent approached the appellant offering to purchase the first floor of the ancestral property. Subsequently, an agreement to sell was entered into between the parties on 17.03.2017 for total consideration of Rs. 7.5 lakhs, of which an amount of Rs. 1 lakh was paid as earnest money to the appellant. This agreement was subsequently not honoured and a legal notice was served upon the appellant by the respondent on 13.04.2017, calling upon him to accept consideration and perform his part of the contract.

5. Claiming that the appellant was attempting to sell the suit property to third parties, the respondent later approached the Civil Court praying for a decree of specific performance of the agreement to sell dated 17.03.2017 by directing the appellant to receive the balance sale consideration and execute/register the sale deed in favour of the respondent. Additionally, the respondent sought to permanently injunct the appellant from alienating the property in favour of any third party. Alternatively, recovery of damages of Rs. 2 lakhs with pendent lite and future interest @ 18% per annum was sought by the respondent.

6. The appellant was served on 01.05.2017 and he appeared through counsel on 15.05.2017 wherein the Civil Court granted the appellant 30 days to file his written statement. On 17.07.2017, noting that no written statement had been filed till then, the Court granted the appellant a final opportunity of two weeks to file his written statement. On 18.09.2017, the Court observed that despite the last opportunity having been accorded more than two months ago, no written statement had been filed. Nevertheless, the Court granted another final opportunity, subject to payment of Rs. 3,000 costs and the matter was posted for 11.10.2017. On this date, appellant sought multiple pass overs but his Counsel did not appear before the Court. After noticing that despite several opportunities (including one beyond the maximum period of 90 days) the appellant had failed to file any written statement or deposit costs and that the matter could not be adjourned repeatedly, the Civil Court thus closed the appellant’s opportunity of filing written statement and struck off his defence. Even on the next hearing on 03.11.2017, the appellant’s Counsel did not appear or supply a copy of the written statement to the respondent, as noted in the Trial Court’s daily order.

7. The aggrieved appellant approached the High Court in revision, which noted how he had been granted repeated opportunities and yet the written statement was not filed within 120 days of notice. Relying upon the order of its coordinate bench in Oku Tech Pvt. Ltd. vs. Sangeet Agarwal and Others, 2016 SCC Online Del 6601 wherein it was held that there was no discretion with courts to extend the time for filing the written statement beyond 120 days after service of summons, the Delhi High Court summarily dismissed the petition.

CONTENTIONS OF PARTIES

8. The appellant’s primary contention is that the reliance on Oku Tech (supra) was erroneous as it was rendered in light of Order VIII Rule 1 of CPC as amended by the Commercial Courts Act, 2015 which in turn was applicable to commercial disputes only. The present matter was highlighted as being noncommerci