JUDGEMENT

NEENA BANSAL KRISHNA, J. I.A. 7134/2023 (under Section 151 read with Section 5 of the Limitation Act filed by the plaintiff for condonation of delay in filing the Chamber Appeal)

1. An application has been filed on behalf of defendant No.5 seeking condonation of delay of 752 days in filing the Chamber Appeal O.A.39/2023 against the Orders dated 18.03.2021 and 09.05.2022.

2. For the reasons stated in the application, the delay of 752 days in filing the Chamber Appeal is condoned.

3. The application is allowed and is disposed of accordingly.

O.A. 39/2023 (under Rule 5 Chapter 2 of the Delhi High Court (Original Side) Rule 2018 read with Section 151 CPC against the Order dated 18.03.2021 and 09.05.2022) CS (COMM) 255/2017 Page 2 of 10

4. A Chamber Appeal has been filed under Rule 5 Chapter 2 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) against the Orders dated 18.03.2021 and 09.05.2022 passed by the learned Joint Registrar closing the right of defendant No.5/Smt. Usha Bansal to file the Written Statement to the Amended plaint and proceeding ex-parte against defendant No.5, respectively.

5. The defendant No.5 has submitted that she had engaged the counsel to represent her in the present proceedings but he did not appear or file the Written Statement as was assured by him, which eventually led to the closure of the right of defendant No.5 to file the Written Statement on 18.03.2021.

6. The learned previous counsel did not apprise defendant No.5 about the status of the case. When she did not hear from him for a fairly long time, she telephonically enquired from the counsel in the last week of August, 2002 and then was informed about the fate of the case. She then engaged the new counsel who obtained the copies of the Order Sheets and has moved the present application. It is submitted that non-appearance of defendant No.5 on 09.05.2022 was for the reasons stated above and that the ex-parte Order may be set aside.

7. It is further submitted that the period of 120 days under Order VIII Rule 1, CPC is directory and not mandatory in nature in non-commercial suits. Reliance has been placed on the case of Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344; Desh Raj v. Balkishan, (2020) 2 SCC 708; Raj Process Equipments and Systems Pvt. Ltd.and Ors. v. Honest Derivatives Pvt. Ltd. Civil Appeal No. 8089 of 200 decided on 3.11.2022 by CS (COMM) 255/2017 Page 3 of 10 the Supreme Court; Bharat Kalra v. Raj Kishan Chabra, 2022 SCC OnLine SC 613; Fredric Gill v. John Masih Gil, 2023 SCC OnLine Del 2605.

8. It is also contended that the Courts should not be pedantic in their approach while condoning the delay. Reference has been made to the case of Ajay Dabra v. Pyare Ram & Ors. 2023 SCC OnLine SC 92; Land Acquisition, Anantnag and Another v. Mst. Katiji and Others (1987) 2 SCC 107 and Esha Bhattacharjee v. Raghunathpur Nafar Academy (2013) 12 SCC 649.

9. It is further submitted that a litigant must not be made to suffer for the fault of his counsel. The learned Counsel for the defendant No.5 has placed reliance on the case of Deptt. of Horticulture v. Raghu Raj (2008) 13 SCC 395; Rafiq v. Munshilal (1981) 2 SCC 788 and Lakhi Narayan Sonowal v. State of Assam (2016) 14 SCC 514 to support his argument.

10. The Chamber Appeal is vehemently opposed by the plaintiff who in its Written Synopsis, has asserted that as per Delhi High Court (Original Side) Rules, 2018, the defendant is not permitted to file its Written Statement beyond a period of 120 days from the date of service of Summons of the Suit. Reliance has been placed on the case of Ram Sarup Lugani v. Nirmal Lugani 276 (2021) DLT 681(DB); Gaut