MANMOHAN SINGH, J.

1. The plaintiff has filed the suit for permanent injunction against the defendant seeking inter alia to restrain violation and infringement of its rights in its 8 patents along with damages, rendition of accounts, delivery up etc. in the month of March, 2015. The defendant appeared before Court on the first date itself. Time to file the written statement was granted for four weeks on 26th March, 2015.

2. The written statement along with counter claim was filed by the defendant on 28th July, 2015. However, written statement to the counter claim was filed by the plaintiff on 5th December, 2015. In fact, a notice in the counter claim was issued by this Court vide order dated 31st July, 2015 and a period of 8 weeks was given to the plaintiff to file its written statement. From 31st August, 2015 till 29th October, 2015 both the parties were negotiating settlement, it is only on 3rd November, 2015 the plaintiff informed the Court that both the parties have not been able to resolve the matter and the matter can proceed on merits. Thereafter, this Court directed the plaintiff to file its written statement before the next date of hearing and the matter was re-notified for 18th November, 2015. However, on 18th November, 2015 counsel for both the parties mentioned the matter and the same was re-notified for 7th December, 2015 (the plaintiff has filed its replication cum written statement on 5th December, 2015).

3. In the meanwhile, the above mentioned application has been filed by the defendant under Order VIII Rule 10 of the Code of Civil Procedure, 1908 read with Clause 4D(i) of the Schedule to the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Ordinance, 2015 (hereinafter referred to as ‘Commercial Courts Ordinance’) and Section 151 CPC to pass a decree in terms of the counter claim filed by the defendant. Learned counsel for the plaintiff does not wish to file the reply who accepted the notice. Both parties have made their submissions for some time.

4. It is stated in the application that as per Section 16 read with Schedule I of the Commercial Courts Ordinance, a written statement filed after expiry of 120 days from the date of service of summons cannot be taken on record. It is stated in the application that in view of the mandate of Order VIII Rule 1 of CPC as amended by the Commercial Court Ordinance, promulgated on 23rd October, 2015, the plaintiff's right to file the written statement stands closed.

5. Mr. A.S. Chandhiok, learned Senior counsel appearing on behalf of defendant has referred Clause 4D(i) of the Commercial Courts Ordinance has amended the proviso to Order VIII Rule 1 of the CPC. Order VIII Rule 1 of the CPC as amended and applicable to commercial disputes would read as under:

"Written Statement - The defendant shall, within thirty days from the date of service of summons on him, resent a written statement of his defence :

'Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons. On expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.''

6. Mr. Chandhiok has also referred Section 16 of the Commercial Courts Ordnance which provides that the CPC in so far as it relates to commercial matter of the Specified Value. Section 16 (1) of the Commercial Courts Ordinance reads as under:

"The provisions of the Code of Civil Procedure, 1908 shall, in their application to any suit in respect of a commercial disputes of a Specified Value, stand amended in the manner