Sureshwar Thakur, J. - (1.) Defendant No. 1 became served, on 28.12.2018, defendant No. 2 became served, on 27.12.2018, defendant No. 3 became served, on 20.12.2018, defendant No. 5 became served on 20.12.2018, Defendant No. 6 became served, on 27.6.2019, and, defendant No. 7 became served, through, one Bhim Singh. However, defendant No. 4, stood proceeded, against ex-parte on 11.9.2019.
(2.) Written statements, to, the plaint, stands filed, on, behalf of co-defendants No. 3. The afore instituted written statement, on behalf, of co-defendant No. 3, becomes instituted, upon, time, becoming granted, for, the afore purpose, rather under orders recorded, on 11.9.2019. However, the learned senior Advocate, appearing for the plaintiff, submits, that the written statement, instituted on behalf of defendant No. 3, being not taken on record, nor any further time, being granted, to, the other errant defendants, to, hence institute their respective written statement(s). She has made the afore submission, on anvil, of the sub-Section (3) of Section 63 of Commercial Courts Act, (i) wherein any Rule, in the High Court of H.P. Rules and Orders, and, appertaining, to, extension(s) of time, to, file written statement, (ii) and, upon theirs being in conflict, with the provisions of CPC, and, appertaining, to, special regulatory provisions, rather governing, and, regulating the granting, of, the espoused time for, institution(s), of, written statement(s), vis-vis, the plaint, by the errant defendant concerned, (iii) rather holding paramountacy thereupon, the special amendment, appertaining to extension(s) of time, being granted, to, the defendant, and, as made to order 5 Rule 1 CPC, and, also appertaining to trial, of, commercial suits, rather with a rigid bar therein, that, upon expiry, of, 120 days, from, the receipt, of, summons, there being a complete statutory bar, against, further espoused extension of time, to institute their respective written statement(s), becoming granted, to, the defendants, also likewise holding an absolute apposite barring clout, against the defenants' right, to, institute their written statements, to, the plaint. Consequently, she espouses that with there, occurring therein rather statutory contemplations, vis-vis, forfeiture, of, rights operating qua the defendant concerned, to, thereafter seek time, for institution of written statement, to the plaint, hence the instituted written statement, being ordered, to, be taken off the record, and, also no further opportunity, being granted, to, the other errant defendants. However, the afore submission is rejected, as the nature/genre of the suit, and, also the relief, cast therein, visibly appertains, to, relief of damages, arising, from tort, of, libel, and the afore, genre, of, the extant suit, does render it, to, fall, outside the statutory, definition, of, a commercial dispute, as embodied in, Clause (c) of Section 2, of, the Commercial Courts Act. Conspicuously, hence all the afore submissions, reiteratedly become rudderless.
(3.) However, the learned counsel, for, the plaintiff has made a further submission, vis-vis, inapplicability hereat rather the verdicts, rendered by this Court, in OMP No. 67 of 2016 in Civil Suit No. 89 of 2016, titled as Smt. Gopi Merchant versus Smt. Ujwala Chauhan and another, and in OMPs No. 531 2018 and 550 of 2018, in Civil Suit No. 1 of 2018, case titled as Anil Kumar and another versus Smt. Ujwala Chauhan and another, (i) wherein this Court, rather had, made an interpretation, vis-vis, the provisions of Order 8 Rule 1 CPC, and also vis-vis, Section 129 of the CPC, provisions whereof stand extracted hereinafter: "129. Power of High Court to make rules as to their original Civil Procedure:- Notwithstanding anything in this code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code." And, afore making conjoint reading(s) thereof hence alongwith, the, requisite mandates, borne in the H.P. High Court Rules and Orders, (ii) appertaining to grant of extension(s), of, time to the errant litigant, to, file written statement, and, has thereafter made a clinching verdict, that, the apposite Rules 3, and, 4 of the Rules and Orders, of, the High Court of Himachal Pradesh (Original Side), rules whereof are extracted hereinafter: "3. Extension of time for filing written statement: Ordinarily not more than one extension of time shall be granted to the defendant for filing a written statement; provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient grounds for such extension and supported, if so required, by an affidavit. 4. Procedure where no written statement is filed by a defendant: If the defendant or all the defendants in a suit have failed to file his or their written statements within the time allowed under rules 2 and 3 or any time extended by order the suit shall be set down for final disposal on, the next or subsequent short cause day. Should the defendant or one or more of several defendants then appear and show good cause for his or their default, he or they may be allowed to defend on payment to the plaintiff of such costs, if any, as may be answered and the suit may be transferred to long causes or may be postponed". assuming predominance, and, prevalance vis-vis, the apposite therewith provisions, occurring, in the Code of Civil Procedure, hence appertaining, to, grant of extension, of, time, for filing written statement, (iii) and also with this Court making therein, an, expostulation of law, that, the mandate borne, in, the opening sentence, of, Rule 3 of H.P. High Court Rules and Orders, as occurring, in, Chapter-5 of the afore Rules, and orders, only becoming applicable, vis-vis, upon the apposite appearance, being made in person, rather by the defendant concerned, (iv) and it not becoming applicable, upon, the defendant concerned hence becoming represented, by a counsel, and besides this Court also making an interpretation that, upon, the defendant, becoming represented, by, counsel, there being no imperative necessity, for the defendants' counsel, to, for the requisite purpose, hence institute an application, seeking therethrough extension of time, for instituting written statement. In aftermath, hence for wants, of, filing, of, apposite applications, by the counsel(s), for, the defendants, for seeking therethrough extension(s) of time, to, file written statement to the plaint, does not detract, from the requisite discretion vested, in, this Court, (v) given the counsel appearing for the errant litigants concerned, making an oral valid submission, that, for want of theirs being purveyed all the requisite material, and, documents, for, enabling themselves, to, prepare a written statement, thereupon theirs' becoming precluded, to, institute written statement(s), vis-vis, the plaint, (vi) thereupon the afore oral submission made by the counsel for the errant defendants, is accepted, and, as a last opportunity, written statement(s), to the plaint, hence by the defendant concerned, be instituted within three weeks, and also the written statement, already on record, is also permitted to be taken, on, record. The application stands disposed of. COMS No. 37 of 2018 As prayed for, the learned counsel for the plaintiff is permitted to, within the afore period, file replication thereto. List thereafter.;