J U D G M E N T

MINI PUSHKARNA, J:

W.P.(C) 15091/2023 & CM APPLs.60290-60292/2023 W.P.(C) 15124/2023 & CM APPLs.60438-60440/2023 INTRODUCTION:

1. The present petitions challenge the constitutionality of Rule 4, Chapter VII of the Delhi High Court (Original Side) Rules, 2018 (“DHC Original Side Rules”), which mandates a strict timeline of 120 days for filing of written statement even in non-commercial matters. The challenge is essentially on the ground that the said Rule creates an unfair discrimination and unequal treatment amongst various litigants in the territory of Delhi, merely on the basis of pecuniary jurisdiction, as non-commercial matters in District Courts are governed by Order VIII Rule 1 of the Code of Civil Procedure, 1908 (“CPC”), wherein, discretion vests with the court to condone the delay in filing written statement in non-commercial matters beyond 120 days. Since it is the case of the petitioners that unfair discrimination and unequal treatment is meted to litigants, wherein, delay beyond 120 days in filing written statement in non-commercial matters, is not condoned on account of Rule 4, Chapter VII of DHC Original Side Rules, in cases filed before this Court, the present petitions have been filed, to declare the said Rule as ultra vires and unconstitutional.

SUBMISSIONS ON BEHALF OF PETITIONERS:

2. On behalf of the petitioners, the following submissions have been made:

2.1 The impugned Rule takes away discretion in a Judge of this Court to condone delay in filing written statement, which is an anomaly that causes hardships to litigants, who otherwise, have an excellent case on merits, but, are prevented from just causes and situations beyond their control, to present written statement within prescribed time.

2.2 The impugned Rule is contrary to Articles 14, 141, 142 and 144 of the Constitution of India. Further, it is beyond the competence of this Court in view of Clause 13 of List III – Concurrent List of Seventh Schedule of the Constitution of India, read with Sections 122 to 128 of the CPC.

2.3 Clause 13 of List III – Concurrent List of Seventh Schedule of the Constitution of India provides legislative competence to Union and States for framing laws relating to civil procedure, including all matters that are included in the CPC at the commencement of the Constitution. The power of High Court to make Rules under Section 129 of CPC is confined to what a court can do in a particular suit, while exercising Original Civil jurisdiction. The impugned Rule, in the present form, could have been made in terms of Sections 122 to 128 of CPC. Resort to Section 129 CPC may not be proper in view of explicit mechanism under Sections 122 to 128 CPC.

2.4 The Rule making power with a High Court cannot extend to make Rules that restrict time provided in a Statute. The CPC prescribes time to file written statement, which is permissible to be extended by a Judge hearing the matter.

2.5 Sections 124 to 126 of CPC require previous approval of Government of the State or Central Government, which provide that Rules made under the said provisions of CPC, will be subject to the previous approval of the Government. Such Rules are required to be published under Section 127. The Rules, even under Section 122 or 129, can only be procedural. Removal of discretion from a Judge altogether, may not be procedural.

2.6 Even if the impugned Rule could have been made under Section 129 CPC, it should still have been subject to procedures and pre-requisites, as provided under Sections 122 to 128 of CPC.

2.7 The impugned Rule in the present form is beyond the competence of this Court, in-as-much as it takes away discretion of a Judge of this Court to condone the delay in filing written statement. It makes the said Rule substantive, and it no longer remains procedural.

2.8 The said Rule has been framed under Section 129 CPC, read with Section 7 of Delhi High Court Act, 1966 (“DHC Act”), which only permits framing of procedural Rules. When powers are only pro