#S-14 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Delivered On: 15.02.2023 FAO(OS) 149/2022 J AMALUDDIN ..... Appellant versus NAWABUDDIN AND ORS ......Respondents Advocates who appeared in this case:

For the appellant : Mr. A.J. Khan, Advocate.

For the respondent : Mr. M.S. Khan, Mr. M. Arshyan & Mr. Daniyal Ayyubi, Advocates for R-1.

CORAM:

HON’BLE MR. JUSTICE SIDDHARTH MRIDUL HON’BLE MR. JUSTICE TUSHAR RAO GEDELA

J U D G M E N T

SIDDHARTH MRIDUL, J. (OPEN COURT)

1. The present appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908, read with Section 10 of the Delhi High Court Rules, has been instituted on behalf of Jamaluddin, the appellant herein and defendant no. 3 in the original suit, praying as follows:

“Keeping in view of the facts and circumstances stated herein and in the interest of justice, it is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:-

(a) Allow the appeal there by setting aside the impugned order dated 24.11.2022 passed by Hon'ble Mr. Justice V. Kameshwar Rao in O.A. NO. 62/2022 IN CS(OS) N0.115 OF 2020 titled 'Nawabuddin Vs. Sh. Salahuddin & ORS and also order dated 30.08.2022 passed by Ms. Vandana Jain, Learned Joint Registrar in CS(OS) N0.115 OF 2020 titled 'Nawabuddin Vs. Sh. Salahuddin Signature Not Verified Digitally Signed FAO (OS) 149/2022 Page 1 of 5 & Ors, in the interest of justice;

(b) Direct the registry to take on record the written statement on behalf of Appellant/Defendant No.3;

(c) Pass any other and further order as this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case be also passed.”

2. Axiomatically, the present appeal preferred by the appellant seeks setting aside of the impugned order dated 24.11.2022 passed by the learned Single Judge of this Court, in the chamber appeal i.e. O.A. no. 62/2022, in CS (OS) No. 115/ 2020 titled ‘Nawabuddin Vs. Sh. Salahuddin & Ors’, upholding the order dated 30.08.2022, passed by the learned Joint Registrar, whereby the right of the appellant herein, to file the written statement, was closed, on the ground that the statutory period for filing the same had come to an end by efflux of time.

3. Learned counsel appearing for the appellant herein, would inter alia rely on the decision of the Hon’ble Supreme Court in Kailash Vs. Nanhku and ors, reported as (2005) 4 SCC 480. The relevant portion of the ratio enunciated therein is extracted hereinbelow:-

“43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which do exist.

44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of Signature Not Verified Digitally Signed FAO (OS) 149/2022 Page 2 of 5 time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.”

4. Learned counsel appearing on behalf of the appellant would then rely upon the ratio of the decision of the Hon’ble Supreme Court in Salem Advocate Bar Association, T.N Vs. Union of India, reported as (2005) 6 SCC 344 and in particular para 21 thereof which holds as follows:-

21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that where