Kamlesh and Ors. v. Sudhir Sharma

1. This petition, under Article 227 of the Constitution of India, assails order dated 19th April 2022, passed by the learned Additional Senior Civil Judge (“the learned ASC”) in CS SCJ 1176/2019 (Sudhir Sharma v. Suraj Pal Sharma).

2. By the said order, the learned ASCJ has rejected an application filed by the petitioners, who are Defendants 2 to 4 in the suit, under Order VIII Rule 1 of the CPC, to take the written statement on record.

3. The issue stands squarely covered by the order/judgment dated 10th January 2022 passed by the supreme Court in Re: Cognizance for Extension of Limitation Suo Motu Writ Petition (C) 3/2020[1] read with order dated 4th January 2022 passed by the Supreme Court in SLP(C) 17298/2022 (Centaur Pharmaceuticals Pvt. Ltd. v. Stanford

Laboratories Pvt. Ltd.[2] ) as well as the judgments in Babasaheb Raosaheb Kobarne v Pyrotek India Private Limited[3] and Prakash Corporates v. Dee Vee Projects Ltd[4].

4. The effect of these decisions has been considered by this Court in its decision in Anita Chhabra v. Surender Kumar[5], paras 12 to 15 of which may be reproduced thus:

14. In line with the aforesaid two orders, the Supreme Court held, in Babasaheb Raosaheb Kobarne[3] and Prakash Corporates[4] that the effect of operation of the aforesaid orders passed by the Supreme Court was that the statutory periods of limitation, prescribed under any statute or law applicable for the time being in force, stood extended till 28th February 2022. The period from 15th March 2020 till 28th February 2022, therefore, stands excluded, by operation of the orders passed by the Supreme Court, for the purposes of limitation, for filing any appeal, application, petition or other legal proceeding. The effect of such exclusion has been underscored, in para 28 of the report in Prakash Corporates[4], which holds that “the excluded period, as a necessary consequence results in enlargement of time, over and above the period prescribed”

15. In this context, I may observe that there was, at one point of time, a prevalent view, based on the judgment of the Supreme Court in Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd[6], that the benefit of the order passed by the Supreme Court would be available only where the normal period of limitation, for filing of a proceeding expired after 15th March 2020. It would not, therefore, be available where the normal period of limitation expired before 15th March 2020 and it was only the condonable period of limitation which expired after 15th March 2020. That view, however, no longer holds the field in view of the later orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation Suo Motu Writ Petition (C) 3/2020[1], based on which the Supreme Court has held, in Centaur Pharmaceuticals[2] that, even where the extended period of limitation condonable period of limitation expired after 15th March 2020, the litigant would be entitled to the benefit of extension of time as made available by the ( 2021 ) 2 SCC 317 orders passed by the Supreme Court.”

5. Applying the law enunciated in the aforesaid passages, as the summons in the suit were received by the petitioners on 28th February 2020, even the normal period of limitation for filing written statement expired after 15th March 2020. By operation of the orders passed by the Supreme Court in Suo Motu Writ Petition (C) 3/2020[1] therefore, the normal period of limitation for filing written statement stood extended till 28th February 2022. As the written statement was filed on 24th July 2021, it could not be said to have been filed belatedly, and had to be treated as having been filed within the normal period of limitation available therefor.

6. Resultantly, the impugned order, which holds that the written statement of the petitioners was filed beyond time and accordingly directs it to be struck off cannot sustain in law.

7. It is accordingly quashed and set aside.

8. The written statement filed by the petitioners, as Defendants 2 to 4 in the suit, is directed to be taken on record.

9. This petition is accordingly allowed with no order as to costs.