Written Statement Without Affidavit of Admission/Denial: Non-Est Filing or Curable Defect? Delhi High Court Refers Conflicting Views to Larger Bench

"It is not proper to sacrifice certainty of law — judicial decorum, no less than legal propriety, forms the basis of judicial procedure and it must be respected at all costs", Delhi High Court referred a significant procedural question of civil law to a Larger Bench, after Justice Subramonium Prasad found four coordinate Benches of the Court sharply divided on whether a Written Statement filed within the prescribed 120-day period but unaccompanied by the mandatory Affidavit of admission/denial of documents is a non-est filing or merely a curable defect. The question, the Court noted, arises frequently and demands an authoritative, uniform pronouncement at the earliest.

Background of the Case

The dispute arose in a civil suit filed by VK Sood PIL JV against the South Delhi Municipal Corporation (MCD) and others. Upon receiving summons, the MCD first appeared on May 31, 2022, and was granted time to file its Written Statement. The Written Statement was filed on September 25, 2022 — three days before the outer 120-day limit expired on September 28, 2022. However, the Written Statement was kept in defect by the Registry as it was not accompanied by the Affidavit of admission/denial of the plaintiff's documents, a requirement mandated under Rule 3 of Chapter VII of the Delhi High Court (Original Side) Rules, 2018. The MCD explained that the plaintiff had relied on a voluminous set of 472 documents, and due to the internal approval process of a government body — including the MCD elections falling in that period — the Affidavit of admission/denial was filed only on December 14, 2022, well beyond the 120-day outer limit. By Order dated March 17, 2023, the learned Joint Registrar refused to take the Written Statement on record. The MCD challenged this order by way of a Chamber Appeal.

Legal Issues

The core question before the Court was whether a Written Statement filed within 120 days but without the accompanying Affidavit of admission/denial of documents amounts to a non-est filing — as if nothing was filed at all — or whether the absence of the Affidavit is merely a procedural defect that can be cured subsequently, even after the 120-day period has expired.

Court's Observations and Judgment

What the Delhi High Court Rules Actually Say

Justice Subramonium Prasad began by setting out the relevant rules in full. Rule 2 of Chapter VII requires the Written Statement to be filed within 30 days of service of summons. Rule 3 mandates that the Defendant "shall also file an affidavit of admission/denial of documents filed by the plaintiff, without which the written statement shall not be taken on record." Rule 4 provides for extension of time up to a further 90 days for exceptional and unavoidable reasons, and further stipulates that failure to file the Affidavit results in deemed admission of the plaintiff's documents.

The Court noted the word "shall" used in Rule 3 with emphasis. Under settled principles of statutory interpretation, "shall" is prima facie mandatory. "There is no reason to read the word 'shall' as 'may' as it goes against the spirit of Rules 2, 3 and 4 of the Delhi High Court Rules, the object of which is to ensure finally completion of pleadings." Permitting a Written Statement without the Affidavit to be taken on record would render the word "shall" in Rule 3 wholly otiose — an outcome that settled canons of construction require courts to avoid. The Court relied on the Supreme Court's ruling in Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489, which held that words used in statutes cannot be treated as surplusage or superfluous and must be given their due import. This principle, the Court noted, has been consistently reiterated in Central Coalfields Ltd. v. SLL-SML (2016) and JSW Infrastructure Ltd. v. Kakinada Seaports Ltd. (2017).

The Conflict Between Four Coordinate Benches

The crux of the problem was that four separate Single Judge Benches of the Delhi High Court had reached contradictory conclusions on this very question, and the conflict was direct and irreconcilable.

The first authoritative view was expressed in Unilin Beheer B.V. v. Balaji Action Buildwell (2019). The Bench in that case held emphatically that permitting a Written Statement without the Affidavit would render the word "shall" in Rule 3 otiose. It held that where the Written Statement is filed without the Affidavit, not only shall the Written Statement not be taken on record, but the plaintiff's documents shall also be deemed admitted and the Court shall be entitled to proceed under Order VIII Rule 10 of the CPC. The object of the 2018 Rules was specifically to eliminate the mischief of vague denials and indefinite delays in admission/denial of documents — a decades-old bottleneck in Original Side proceedings — and this object would be entirely defeated by allowing belated Affidavits. "To, in spite of aforesaid changes in Rules, hold that in such a situation the written statement shall be read though the documents filed by the plaintiff deemed to be admitted, has the potential of resulting in anomalous situation," the Bench had observed.

Three subsequent coordinate Benches, however, took a diametrically opposite position. In COSCO International Pvt. Ltd. v. Jagat Singh Dugar (2022), the Bench held that filing a Written Statement and a Written Statement being taken on record are two distinct matters. A Written Statement filed within 120 days but without the Affidavit is not non-est — it is a defective filing requiring cure. As long as the defect is cured within the 30-day window available for rectification of filing objections, the Written Statement can be taken on record. This view was followed in Neeraj Ahuja v. AIPIL Zorro Pvt. Ltd. (2024) and Shefali Kohli v. Neena Chatrath (2024).

Judicial Discipline Demands a Reference, Not a Choice

Justice Subramonium Prasad declined to simply pick one line of authority over the other. The Court held that where a Single Judge disagrees with a coordinate Bench, the proper course is not to arrive at a contrary decision but to refer the matter to a Larger Bench. "It scarcely needs reiteration that principles of judicial propriety and decorum mandate that where a Single Judge, while hearing a matter, is inclined to take the view that the earlier decisions of the High Court needed to be reconsidered, the appropriate course is to refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench."

The Court invoked the Supreme Court's authoritative pronouncement in Dr. Vijay Laxmi Sadho v. Jagdish (2001) 2 SCC 247 — that when a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution rather than leaving two conflicting judgments to operate, creating confusion. "It is not proper to sacrifice certainty of law." The same principle was reiterated in State of Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC 26, where the Supreme Court held that judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench and that no decision can be arrived at contrary to or inconsistent with the law laid down by a coordinate Bench.

The Question Referred

The Court framed the precise question for the Larger Bench as follows: whether the filing of a Written Statement within the statutory period prescribed under the Delhi High Court (Original Side) Rules, 2018, but without being accompanied by an Affidavit of admission/denial of documents, renders such filing non-est in law, or whether the absence of such Affidavit constitutes a curable defect, permitting the Written Statement to be taken on record upon subsequent compliance.

The Court additionally provided a conditional road map for the outcome: if the Larger Bench holds that the Written Statement can be taken on record, the matter shall stand remitted to the Joint Registrar to consider the sufficiency of the reasons for the delay in filing the Affidavit. If the Larger Bench holds otherwise, the impugned order of the Joint Registrar refusing to accept the Written Statement shall stand affirmed. The application for condonation of delay in filing the Chamber Appeal was separately allowed.

The matter was directed to be placed before the Hon'ble Chief Justice for constitution of a Larger Bench, with the Court noting that the issue arises frequently and requires urgent resolution.

Date of Decision: April 8, 2026