Three Division Benches said 120 days is the end of it — a fourth has asked a Larger Bench to decide
Justices Vivek Chaudhary and Renu Bhatnagar say they are unable to agree with Ram Sarup Lugani, Delhi Gymkhana Club and Manhar Sabharwal, and refer three questions on Rule 4 of the Original Side Rules and the Registrar's powers for consideration by a Larger Bench.
A defendant who files a written statement on the 121st day has, on the settled view of the Delhi High Court, filed nothing at all. Rule 4 of Chapter VII of the Original Side Rules lets a court extend the thirty-day period by up to ninety days more, “but not thereafter”, and three Division Benches have read those two words as an absolute bar. On 8 October 2026, hearing an appeal by defendants whose right to file had been closed by the Joint Registrar, a Division Bench of Justice Vivek Chaudhary and Justice Renu Bhatnagar recorded that it was “humbly unable to agree” with those judgments, and referred three questions for a Larger Bench — including whether the Registrar has any power to receive a written statement in the first place.
How the appeal arose
The underlying suit had been directed to proceed as an ordinary civil suit and was renumbered as CS(OS) No. 367 of 2025. The written statement was not filed within the prescribed period. On 20 January 2026 the Joint Registrar (Judicial) closed the appellants' right to file it.
The appellants took that order in a Chamber Appeal, which a learned Single Judge dismissed on 23 July 2026, upholding the Joint Registrar and holding that the written statement had not been filed even within the outer limit of 120 days reckoned from 5 May 2025. The present appeal followed.
So the question put to the Division Bench was whether the Court has the power to extend the time for filing a written statement under Rule 4 of Chapter VII of the Delhi High Court (Original Side) Rules, 2018.
The rule, and the two readings of it
Rule 4 is headed “Extension of time for filing written statement”, and its operative sentence runs: if the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons from filing the written statement within 30 days, it may extend the time by a further period not exceeding 90 days, “but not thereafter”. A party in delay is to be burdened with costs as deemed appropriate.
Counsel for the appellants argued that the Rule is a rule of procedure and ought to be interpreted liberally, and that the closely similar provision in Order VIII Rule 1 of the Code has been interpreted by the Supreme Court as conferring on a court, in appropriate cases, the power to extend the time for a written statement beyond the prescribed period.
Counsel for the respondent relied on the three Division Bench judgments of the same court which hold Rule 4 to be mandatory and the total period of 120 days to be the outer limit, incapable of extension: Ram Sarup Lugani v. Nirmal Lugani, 2020 SCC OnLine Del 1353; Delhi Gymkhana Club Ltd. v. Col. Ashish Khanna (Retd.), 2024 SCC OnLine Del 7022; and Manhar Sabharwal v. High Court of Delhi, 2024 SCC OnLine Del 5945.
Why this Bench disagreed
The Bench's reasons are set out before the reference, and the second of them is the kind of argument that is hard to answer.
It starts from the ordinary principle that words in a statute must be understood in the context in which they are used. Naresh Kumar Madan v. State of M.P., (2007) 4 SCC 766, is cited for the proposition that different statutes may use the same term for different purposes, and that the interpretation of a term in one statute cannot be done by reference to its definition in another.
Then comes the drafting history. The Original Side Rules were made in 2018. Two years earlier, the 2016 amendment for commercial courts had altered Order VIII Rule 1 of the Code to add an express proviso: a defendant who fails to file within thirty days may be allowed to file on such other day as the Court specifies, for reasons recorded in writing and on payment of costs, “but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days … 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”.
That language, the Bench observes, is mandatory on its face: it forfeits the right and forbids the court from taking the document on record. And both versions were in front of the High Court when it framed its own Rules — the unamended Order VIII Rule 1, which the Supreme Court had held to be directory, and the commercial-courts proviso, which is plainly mandatory. The High Court “did not choose the language provided for commercial courts but choose that for the civil courts”. Having knowingly and consciously adopted language that the Supreme Court had already interpreted as directory, the Bench reasoned, no different interpretation can now be given to it.
The third strand is the one that turns into the second referred question. Rule 4, read closely, falls into two parts. The first uses the word “court”: after the initial thirty days, the Court may extend the time by a further period not exceeding ninety days, and not thereafter. The second says that if no written statement is filed within the extended time either, the “registrar” may pass an order closing the right to file it. On that structure, the registrar has power to accept a written statement within the period extended by the Court and not beyond; once the period has expired, the only task left to the registrar is to close the matter and send it on. Extending time is the Court's function, and closing the file is the registrar's.
The three questions referred
Unable to agree with those earlier Division Bench judgments, the Bench framed three questions for a Larger Bench.
The first asks whether the Supreme Court's decisions on Order VIII Rule 1 of the Code — Kailash v. Nanhku, (2005) 4 SCC 480, Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, and subsequent decisions declaring the provision directory — would be applicable in interpreting Rule 4 of the Original Side Rules, and whether the three Division Bench decisions taking a contrary view do not lay down the correct law.
The second is the structural one, and it reaches past this case. Under Rule 4, is it the Court alone which can extend the time for filing a written statement, with the Registrar having merely ministerial power and no judicial power to receive a written statement within the initially prescribed 30 days or within a period extended by the Court — or does the Registrar have any power to extend the time for accepting a written statement at all? On the facts here, it was the Joint Registrar who closed the right to file; if the second limb is answered against that practice, a good deal of Original Side procedure follows the answer.
The third asks whether the law laid down in Rahul Gupta v. Pratap Singh, 2013 SCC OnLine Del 4760, is contrary to the law settled by the Supreme Court in State of Orissa v. Commissioner of Land Records and Settlement, Cuttack, (1998) 7 SCC 162, and is therefore liable to be overruled.
Woven into the Bench's reasoning is the observation that the power in question is exercised by a judicial officer and that even a review would lie before the same authority which exercises the delegated power — the thread which makes the Registrar's role, and not merely the length of the deadline, the real subject of the reference.
Order
The Bench directed that the matter be placed before the Chief Justice for consideration of the constitution of a Larger Bench on the three questions posed.
Until that happens the three earlier judgments hold the field, so a written statement filed beyond 120 days on the Original Side remains, for now, out of time. What has changed is that the question is open again — and that the reference asks not only how long a defendant has, but who in the High Court has the authority to decide it.