ORDER

% 05.01.2024 O.A. 1/2024 (under Rule 5 read with Rule 7 of Chapter II of Delhi High Court (Original Side) Rules, 2018 read with Section 151 and other enabling provisions of CPC) 1. Appellants are Defendants No. 1 and 2 in the present suit. They are aggrieved by the order dated 31st October, 2023, whereby the Joint Registrar has rejected their application [I.A. 7270/2023] filed under Order VIII Rule 1 of the Code of Civil Procedure, 1908 [“CPC”] seeking condonation of delay in filing their written statement [hereinafter, “impugned order”]. The dispute before the Joint Registrar pertained to the date from which the period of limitation for filing the written statement would begin to run.

2. To fully comprehend the nature of the controversy and evaluate the Joint Registrar’s findings, it is essential to first examine the procedural history of the case:

2.1. On 11th October, 2022, the Court issued summons in the suit and granted an ex-parte ad-interim injunction against the Defendants, restraining them from using the marks impugned in the suit. The said order also appointed a Local Commissioner to search Defendant No. 1’s premises and seize the infringing goods. Plaintiff was directed to inform the Registry once the commission was executed, so that the Registry could issue summons to the Defendants. Additionally, Plaintiff was directed to comply with provisions of Order XXXIX Rule 3 of CPC within one week from the date of execution of the local commission. On 19th October, 2022, another Local Commissioner was appointed to visit the shop of Defendant No. 2, situated at the address mentioned in the memo of parties.

2.2. The Local Commissioners carried out the directions of the Court and visited the respective Defendants’ premises on 29th October, 2022. During the execution, complete sets of the suit paper-book were also handed over to the Defendants. In terms of Order XXXIX Rule 3, Plaintiff dispatched an additional copy of the paper-book on 02nd November, 2022 through e-mail.

Thereafter, Defendants No. 1 and 2 filed an application for vacation of the ex-parte ad-interim injunction on 12th December, 2022, which was listed on 15th December, 2022, but adjourned at Defendants’ request.

2.3. In the hearing held on 25th January, 2023, counsel for Defendants No. 1 and 2 appeared before the Joint Registrar and stated that they had not received the complete set of documents as well as the Local Commissioners’ reports. Accordingly, the Joint Registrar ordered for supply of such documents, whereafter the written statement(s) were to be filed.

2.4. Defendants No. 1 and 2 then filed I.A. 7270/2023 for condonation of delay in filing the written statement, which came to be decided in Plaintiff’s favour on 31st October, 2023, through the impugned order. The Joint Registrar’s reasoning for rejection of the application is as under:

“I have carefully considered the rival submissions.

Applicant’s submissions are 3 fold. First, that the condonation is being sought of delay of 117 days in filing the written statement which is within the max. permissible period of 120 days. Second, the delay was occasioned on account of the necessity to procure documents dating back to the year 2000 so that an effective written statement could be filed and hence, there is reasonable reason to seek condonation of delay. Third, as an alternative argument, that since there has been no formal service of summons, there is technically no delay at all.

The first submission that delay is actually of 117 days is not borne out from the record. Def./applicants contend that they were supplied with the complete paper book on 2.11.2022 when plaintiff complied with requirement of section 39 (3) CPC. Plaintiff on the other hand has highlighted the affidavit of compliance along with the requisite documents of service wherein it is clearly reflected that the entire paper-book including the IA’s were supplied and received on behalf of all the 3 defendants on 29.10.2022. This ass