The law of limitation does not extend for defendants who have actively participated in litigation and have previously availed concessions; negligence in filing a written statement bars admission.

JUDGMENT

Amit Bansal, J. (Oral)

CM 37774/2021 (for exemption)

1. Allowed, subject to all just exceptions.

2. The application is disposed of.

CM(M) 848/2021 & CM 37773/2021 (for stay)

3. The present petition filed under Article 227 of the Constitution of India impugns the order dated 23rd March, 2021 passed by the District Judge, Commercial Court-02, West District, Tis Hazari Courts, Delhi in suit bearing CS (COMM.) No.185/2020, whereby the application filed on behalf of the petitioner/defendant under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) for grant of extension of time and condonation of delay in filing written statement has been dismissed.

4. The facts leading to the filing of the present petition are as follows:

4.1 On 9th July, 2020, a suit for possession, recovery of arrears of rent, mesne profits and permanent and mandatory injunction along with an application under Order XXXIX Rules 1 & 2 of the CPC, was filed by the respondent/plaintiff before the Commercial Court.

4.2 Notice was issued in said suit on 10th July, 2020.

4.3 On 16th July, 2020, an ex-parte order was passed by the Commercial Court on the application under Order XXXIX Rules 1 & 2 of the CPC filed by the respondent/plaintiff and the case was adjourned to 20th August, 2020.

4.4 The petitioner/defendant appeared in person before the Commercial Court on 24th August, 2020 and sought time to explore the possibility of settlement.

4.5 On 25th August, 2020, the Commercial Court was informed that the settlement could not be arrived at between the parties and the matter was adjourned to 14th September, 2020 for filing of the written statement.

4.6 The petitioner/defendant failed to appear before the Commercial Court on 14th September, 2020 and was accordingly proceeded ex- parte.

4.7 The petitioner/defendant appeared through his counsel before the Commercial Court on 9th November, 2020 and 24th November, 2020.

4.8 An application under Order IX Rule 7 of the CPC (incorrectly filed under Order IX Rule 9 of the CPC) was filed by the petitioner/defendant seeking setting aside of the ex-parte order dated 14th September, 2020.

4.9 On 7th December, 2020, the application under Order IX Rule 7 of the CPC filed by the petitioner/defendant was allowed by the Commercial Court, subject to the payment of costs of Rs.20,000/- to the respondent/plaintiff and the petitioner/defendant was granted one week's time to file the written statement.

4.10 The petitioner/defendant failed to file the written statement within the time granted by the Commercial Court.

4.11 On 6th February, 2021, which was the next date of hearing before the Commercial Court, the petitioner/defendant appeared through counsel along with a written statement, a counter-claim and an application under Order VIII Rule 1 of the CPC seeking condonation of delay in filing of the written statement. The aforesaid documents were placed in the petition box kept in the Court Room. The Commercial Court observed that an appropriate order would be passed on the application filed on behalf of the petitioner/defendant under Order VIII Rule 1 of the CPC, as and when the same is put up for hearing.

4.12 On 12th February, 2021, notice was issued on the application filed by the petitioner/defendant under Order VIII Rule 1 of the CPC.

4.13 The order dated 6th February, 2021 was challenged by the petitioner/defendant by way of a petition bearing CM(M) 146/2021 before this Court. The said petition was dismissed as withdrawn in