$~49 * IN THE HIGH COURT OF DELHI AT NEW DELHI + C.R.P. 189/2026 & CM APPL. 42028/2026 CM APPL. 42029/2026 CM APPL. 42030/2026 CM APPL. 42031/2026 GULAB DEVI .....Petitioner Through: Mr. Ankit Kashyap, Adv. versus SANJAY .....Respondent Through: CORAM: HON'BLE MR. JUSTICE ANISH DAYAL O R D E R % 09.07.2026 1. This petition has been filed seeking setting aside of impugned order dated 24th January 2026, passed by the Sr. Civil Judge-cum-Rent Controller, West District, Tis Hazari Courts, Delhi in CS SCJ No. 1376/202450, whereby application filed by the petitioner/defendant under Order VIII Rule 1 of the Code of Civil Procedure, 1908 [‘CPC’], for condonation of delay in filing the written statement [‘WS’], was dismissed. 2. Summons in the suit were served upon the petitioner/defendant on 10th October 2024. Counsel for petitioner/defendant appeared before the Trial Court on 18th November 2024, whereupon further liberty was granted to the petitioner/defendant to file the WS along with the appropriate application. The period of 90 days expired on 10th January 2025; however, the WS was physically handed over in the Court only on 28th May 2025. 3. Counsel for petitioner/defendant states that the delay in filing the WS This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/07/2026 at 11:30:11 was attributable to the counsel, since the litigant is an old widow, and is uneducated and unaware of the legal process. He, therefore, seeks to support his plea that negligence of the counsel ought not to cause prejudice to the litigant in this regard. 4. Mr. Ankit Kashyap, counsel for petitioner/defendant, has placed reliance on the decisions of the Supreme Court in Zolba v. Keshao, (2008) 11 SCC 769 and R.N. Jadi & Brothers v. Subhashchandra, (2007) 6 SCC 420, and of this Court in Musharrat Ali v. Rais Azam, 2010 SCC OnLine Del 1656, to contend that the Supreme Court has consistently, while relying upon the decision of the Three-Judge Bench in Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344, held that that the provision under Order VIII Rule 1 of CPC is not mandatory, but directory in nature, and therefore, the delay may be condoned, and written statement may be accepted, even after expiry of the period of 90 days from the date of service of summons, in exceptionally hard cases. 5. For ease of reference, the relevant portion from Zolba v. Keshao (supra), is extracted as under: “3. This appeal is directed against the judgment and order dated 11-10-2006 passed by a learned Judge of the High Court of Judicature at Bombay, Nagpur Bench in Writ Petition No. 4019 of 2006 by which the learned Judge had dismissed the writ petition filed by the appellant for condoning the delay of 35 days in filing the written statement in a suit for partition and separate possession of agricultural land filed by the respondents. 13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/07/2026 at 11:30:11 mentioned in the proviso to Order 8 Rule 1 CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature. 14. In Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344 : AIR 2005 SC 3353] it has been clearly held that the provisions including the proviso to Order 8 Rule 1 CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted even after the expiry of 90 days from the date of service of summons in exceptionally hard cases. It has also been held in that decision that the use of the word “shall” in Order 8 Rule 1 CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the decision in that case, the same can be construed as directory. In AIR para 21 of the said decision, this Court observed as follows: (SCC p. 364, para 20) “20. The use of the word ‘shall’ in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.” 15. Therefore, following the principles laid down in the This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/07/2026 at 11:30:11 decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. 17. In this view of the matter, in the facts and circumstances of the case and in view of the reasoning given above, we hold that the High Court as well as the trial court had erred in rejecting the application for condoning the delay in filing the written statement. Accordingly, the application for condoning the delay is allowed and the written statement filed by the appellant is accepted and consequent thereupon, the impugned order which affirmed the order of the trial court rejecting the application for condoning the delay in filing the written statement is set aside. The trial court shall now proceed with the hearing of the suit and dispose of the same positively within one year from the date of supply of a copy of this order to it.” (emphasis added) 6. Mr. Ankit Kashyap, counsel for petitioner/defendant, further relies upon the decision of the Supreme Court in Lala Mata Din v. A. Narayanan, (1969) 2 SCC 770, to contend that the mistake of counsel may, in certain circumstances, be taken into account in condoning delay, although there is no general proposition that such mistake, by itself, constitutes a sufficient ground. The Supreme Court held that such mistake must be bona fide and that, if it is a device to cover an ulterior purpose, it would be considered differently. The relevant portion from Lala Mata Din (supra), has been reproduced This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/07/2026 at 11:30:11 hereinbelow: “6. The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately, never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit or a wrong reading of the situation.” (emphasis added) 7. As is evident from order dated 28th May 2025, the copy of the WS was physically handed over to the Court along with the application, and shall be deemed to have been served on that date. Petitioner/defendant herein is a widow, aged 67 years, and it is quite possible that she was unable to coordinate with the counsel, who may have been callous in filing the WS within time. 8. In any case, it has been pointed out that the trial is at the stage of commencement of plaintiff's evidence [respondent herein] and, therefore, in order not to hold up the trial, it would be appropriate that the WS be taken on record at this stage, so that that the trial may proceed in a complete manner. 9. Accordingly, the WS shall be taken on record, subject to costs of Rs.2,500/- being paid to counsel for respondent/plaintiff. 10. Considering also the background circumstances in which the plaint has been filed, and the defence taken by petitioner/defendant herein, it would be appropriate that she is not non-suited at this stage for a possible fault of counsel. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/07/2026 at 11:30:11 11. Without setting a precedent, and taking into account the decisions of the Supreme Court, as cited above, the present revision petition is allowed and the directions above shall, therefore, be complied with, before evidence of petitioner/defendant is to be recorded. 12. The previous cost of Rs.1,000/-, which had been imposed on 08th January 2025, has, as informed by counsel for petitioner/defendant, already been paid. 13. Accordingly, the petition is disposed of. 14. Pending applications, if any, are rendered infructuous. 15. Copy of the order be given ‘dasti’ under the signatures of the Court Master. 16. Order be uploaded on the website of this Court. ANISH DAYAL, J JULY 9, 2026/MK/ya This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/07/2026 at 11:30:11