Amit Bansal, J
I.A No.17274/2019 (for condonation of delay of 35 days in fling rejoinder)
1. The present application has been filed on behalf of the petitioner seeking condonation of delay in filing rejoinder to the reply filed on behalf of the
respondents no.2 and 3 to the petition for grant of letters of administration.
2. The instant petition has been filed for grant of letters of administration in favour of the petitioner, who is residing in the United Kingdom (UK). It is
stated in the petition that the father of the petitioner, Lat Shri Madho Lal Mehra, died intestate on 2nd March, 2011 and the respondents no.2 and 3,
who are the brother and mother of the petitioner, being the other Class I legal heirs of the deceased, are intent on depriving the petitioner of her
rightful share in the estate of her late father.
3. Notice in the petition was issued on 24th January, 2019. Pursuant thereto, respondents no. 2 and 3 have filed their objections/reply.
4. Earlier, the present petition was filed by the petitioner through an attorney, who subsequently expired. Thereafter, the petitioner has been pursuing
the present petition herself.
5. Vide order dated 11th September, 2019 passed by the Joint Registrar, the delay of 75 days in filing objections to the petition by the respondents no.2
and 3 was allowed subject to costs of Rs.5,000/-. Further, vide the same order, four weeks’ time was given by the Joint Registrar to the petitioner
to file rejoinder affidavit and affidavit of admission/denial of documents. In terms of the said order, the rejoinder was to be filed by the petitioner on or
before 9th October, 2019. However, the rejoinder was filed on 19th November, 2019 along with the present application seeking condonation of delay.
6. Notice on the present application was issued on 10th December, 2019. No reply has been filed by the respondents no.2 and 3 to the present
application, however, oral submissions have been made in opposition of the present application.
7. Counsel for the petitioner has drawn attention to paragraphs 6 and 7 of the application for seeking condonation of delay in filing the rejoinder. He
further submits that Chapter VII of the Delhi High Court (Original Side), Rules, 2018 would not be applicable to testamentry cases as there is a
separate Chapter XXIX in respect of testamentry cases. Therefore, Rule 5 of Chapter VII, which provides for a maximum time limit would not apply
in the present case. Further reliance is placed on Rules 15 and 16 of Chapter I of the Delhi High Court (Original Side), Rules, 2018 to contend that the
Court would have the power to condone the delay in filing rejoinder in the present case.
8. On the other hand, the counsel appearing on behalf of the respondent opposes the present application and submits that:
(i) Chapter VII of the Delhi High Court (Original Side), Rules, 2018, though applicable to civil suits, would also apply to testamentry cases.
(ii) once, the maximum period of filing replication i.e. 30 days plus 15 days in terms of Rule 5 of Chapter VII is over, the right to file
replication/rejoinder would stand extinguished. In this regard, reliance is placed on the judgment of a Division Bench of this Court in Ram Sarup
Lugani & Anr. v. Nirmal Lugani & Ors., (2020) SCC OnLine Del 1353.
(iii) contentious testamentry cases have to be dealt with in a manner akin to civil suits. Reference in this regard is made to Section 295 of the Indian
Succession Act and the judgment of the Division Bench in H.P.S. Chawla v. Dr. N.P.S.Chawla, (2005) 84 DRJ 516(DB).
9. I have heard the counsel for the parties.
10. Chapter VII of the Delhi High Court (Original Side), Rules, 2018 is titled “Appearance by Defendant, Written Statement, Set Off and Counter-
Claim†and deals with the procedure to be followed in respect of civil suits. Rule 5 of Chapter VII, which deals with delay in filing the replication is
set out below:
“5. Replication.- The replication, if any, shall be filed within 30 days of receipt of the written statement. If the Court is satisfied that the
plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days, it may extend the
time for filing the same by a further period not exceeding 15 days but not thereafter. For such extension, the plaintiff shall be burdened with
costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/deposited. In case no
replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court. An
advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along
with the replication, shall be served on the defendant and the replication together with the said documents shall not be accepted unless it
contains an endorsement of service signed by the defendant/his Advocate.â€
11. A perusal of the Rules in Chapter VII along with its title clearly demonstrates that the said chapter is applicable only in respect of civil suits filed
before this Court. Rule 5, as aforesaid, provides that replication, which is to be filed within 30 days, can only be filed in an additional period of 15 days
and not thereafter. After expiry of the aforesaid period of 45 days (30+15 days), the plaintiff forfeits his right to file replication, as observed by the
Division Bench in Ram Sarup Lugani (supra).
12. Chapter XXIX of the Delhi High Court (Original Side), Rules, 2018 is titled “Testamentry and Intestate Jurisdiction†and specifically deals
with testamentry cases. Rules 1 and 2 of Chapter XXIX provide for the manner in which petitions for grant of probate or letters of administration have
to be filed. The said chapter does not provide for any time limits for filing objections to the petition or for filing reply to the objections/rejoinder. There
are also no time limits provided under the Indian Succession Act in respect of filing objections to the petition or for filing reply to the
objections/rejoinder. Therefore, it is the discretion of the Court to fix the time limits in respect of filing objections or replies thereto. Of course, this
discretion has to be exercised by the Court in a judicious manner.
13. Since Chapter VII itself is not applicable to testamentry cases, clearly, Rule 5 of the aforesaid chapter cannot be made applicable to testamentry
cases. Further, Rule 5 only makes a reference to “replication†in a suit and not “rejoinder/reply to objections†to be filed in a testamentry
case. Rule 5 of Chapter VII provides for a drastic consequence of the right to file replication being closed if it is not filed within 45 days. In my view,
by implication, this rule cannot be applied to testamentry cases, when such a rule has specifically not been made applicable to testamentry cases.
14. Counsel for the petitioner has relied on Section 295 of the Indian Succession Act, which is reproduced hereinbelow:
“295. Procedure in contentious cases.â€"In any case before the District Judge in which there is contention, the proceedings shall take,
as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the
petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the
grant shall be the defendant.â€
15. Section 295 provides that in contentious testamentry cases, proceedings shall be in the form of a regular suit and in accordance with the Code of
Civil Procedure, 1908. However, whether or not the proceedings are contentious can only be determined after pleadings in the case are completed.
Therefore, Section 295 would come into play only after competition of pleadings and cannot be relied upon to contend that the time limits for filing
replication, as provided in the Delhi High Court (Original Side), Rules, 2018, would also apply to testamentry proceedings.
16. Counsel for the petitioner has drawn my attention to Rules 14 and 16 of Chapter I of the aforesaid Rules, which are set out below:
“14. Court’s power to dispense with compliance with the Rules.- The Court may, for sufficient cause shown, excuse parties from
compliance with any requirement of these Rules, and may give such directions in matters of practice and procedure, as it may consider just
and expedient.
[Provided where the Court/Judge is of the opinion that Practice Directions are required to be issued, he may make it suitable reference to
the Hon’ble Chief Justice.]
…
16. Inherent power of the Court not affected.- Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the
Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court.â€
17. The aforesaid Chapter and the rules set out above would be applicable to all cases falling under the Original Side jurisdiction of this Court, which
would, besides civil suits, also include testamentry cases.
18. Rules 16 gives inherent powers to the Court to pass such orders that may be necessary for the ends of justice to be met or to prevent failure of
justice. This does not mean that in every case, rejoinder/reply to objections can be allowed to be filed at any stage. The Court would have to be
satisfied with the reasons given by the petitioner for delay in filing the rejoinder/reply to objections.
19. The judgment in H.P.S. Chawla (supra) is of no help to the petitioner in the present case since the observations in the said judgment were made in
the context of deleting/expunging scandalous, defamatory/libelous material in a Will.
20. In the present case, the petitioner is a resident of United Kingdom. The petitioner has stated in paragraph 6 of the present application that the
petitioner had to consult her solicitor in the United Kingdom and this process was delayed on account of certain religious holidays in United Kingdom.
Further, it is a matter of fact that affidavits signed outside India have to be necessarily apostilled in compliance with the provisions of the Convention
Abolishing the Requirement of Legalisation for Foreign Public Documents (HCCH 1961 Apostille Convention) and the said formalities are time
consuming. Therefore, I am of the view that the petitioner has provided sufficient grounds for condonation of delay in filing the rejoinder/reply to the
objections.
21. Accordingly, the present application is allowed, subject to the petitioner paying costs of Rs.10,000/- in favour of the “Indigent & Disabled
Lawyers’ Fund†of the Bar Council of Delhi.
TEST.CAS. 9/2019
22. List before the Joint Registrar for further proceedings on 27th April, 2022.
