Ajay Sharma & Anr. vs Manu Markande
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 07.10.2026
Date of pronouncement: 06.11.2026
# CNR No. DLHC010768102025
+ FAO(OS) 116/2025, CM APPL. 63418/2025, CM APPL. 69623/2025,
CM APPL. 36662/2026 & CM APPL. 61014/2026
1. AJAY SHARMA
S/o Late Pyare Lal Sharma,
R/o C-113, Naraina Vihar,
New Delhi-110028.
Also, at:
7380 Burris Street, Burnbay
British Columbia, Canada, VSE 1Y5. ..... Appellant No.1
2. VIJAY KUMAR SHARMA
S/o Late Pyare Lal Sharma
R/o Seafeather Road
Island of Angulla
Also, at
R/o C-113, Naraina Vihar
New Delhi-110028. .… Appellant No.2
Through: Mr. Rajat Aneja, Senior Advocate
with Mr. Mann Nankani & Mr.
Nitesh Kumar, Advocates.
versus
MANU MARKANDE
S/o Late Smt. Suraksha Markande
R/o 222, Kailash Hills
East of Kailash, New Delhi. ..... Respondent
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By:ALKA BOBAL
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Through: Mr. Rajiv Aneja, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIVEK CHAUDHARY
HON'BLE MS. JUSTICE NISHA SAHAY SAXENA
J U D G M E N T
INDEX
S.
No.
Particulars Paragraph
Nos.
I THE APPEAL 1 – 2
II BRIEF FACTS 3 – 4
III THE IMPUGNED JUDGMENT 5 – 6
IV SUBMISSIONS ON BEHALF OF THE
APPELLANTS
7 – 14
V SUBMISSIONS ON BEHALF OF THE
RESPONDENT
15 – 26
VI ISSUES FOR DETERMINATION 27
VII ANALYSIS AND FINDINGS 28 – 52
A. Issue (i): Power to extend time beyond thirty
days
28 – 31
B. Issue (ii): Exercise of discretion and
appreciation of evidence
32 – 46
C. Issue (iii): The remaining objections of the
respondent
47 – 51
D. Issue (iv): Scope of the amended written
statement and terms
52 – 52
VIII CONCLUSION AND DIRECTIONS 54 – 56
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I. THE APPEAL
1. The present intra-court appeal under Section 10 of the Delhi High Court
1
Act, 1966 assails the judgment dated 19.03.2025 passed by the learned
Single Judge in I.A. 7906/2016 in TEST.CAS. 51/2010, titled Manu
Markande & Anr. v. The State & Ors. By the impugned judgment, the learned
Single Judge held that the Court is vested with the power under Order VI Rule
2
18 of the Code of Civil Procedure, 1908 to extend the time for carrying out
an amendment. The learned Single Judge nonetheless declined to exercise that
power, and rejected the application of the appellants under Section 148 read
with Section 151 CPC seeking enlargement of time for filing their amended
written statement.
2. The appellants, Mr. Ajay Sharma and Mr. Vijay Kumar Sharma, are the
sons of late Sh. Pyare Lal Sharma. They are arrayed as respondent Nos. 4 and
3 respectively in the Test Case. Appellant No. 1 is also the constituted attorney
of appellant No. 2. The respondent, Mr. Manu Markande, is the grandson of
late Sh. Pyare Lal Sharma through his pre-deceased daughter, late Smt.
Suraksha Markande. He is petitioner No. 1 in the Test Case and also
represents his sister, Ms. Manishri Markande (petitioner No. 2), as her
attorney.
II. BRIEF FACTS
3. Late Sh. Pyare Lal Sharma and late Smt. Shanta Sharma had five
children. They were two sons, Vijay Kumar Sharma and Ajay Sharma (the
appellants), and three daughters, Smt. Suraksha Markande, Smt. Sudesh
1
the impugned judgment
2
CPC
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Khanna and Smt. Vinay Sharma. The principal asset of the estate is the
3
property bearing No. C-113, Naraina Vihar, New Delhi .
4. The facts relevant to the present appeal, in chronological order, are as
follows:
(a) On 11.10.1993, Smt. Suraksha Markande is stated by the
appellants to have executed a family agreement relinquishing her
rights in the subject property in favour of her brothers. The
respondent disputes the document as forged.
(b) Smt. Suraksha Markande died on 16.03.1999, before both her
parents.
(c) Sh. Pyare Lal Sharma is stated to have executed a handwritten
Will dated 16.08.2000 bequeathing the subject property to the
appellants. He died on 20.08.2000, and Smt. Shanta Sharma died
on 10.12.2000. The appellants assert that the respondent and his
sister each received ₹1,00,000/- under the Will. The respondent
disputes the Will.
(d) In the year 2007, the four surviving children filed Succession
Case No. 183/2007 for a succession certificate in respect of the
movable assets. It was later transferred to this Court and
registered as TEST.CAS. 46/2012.
(e) In July 2010, the respondent and his sister instituted TEST.CAS.
51/2010 under Sections 270, 278 and 300 of the Indian
3
Subject Property
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Succession Act, 1925, seeking Letters of Administration in
respect of the estate.
(f) On 06.09.2012, the right of the appellants to file objections was
closed by the learned Joint Registrar. That order was set aside in
O.A. 24/2012 on 18.10.2012, and the appellants' common
reply/objections dated 01.10.2012 came on record.
(g) On 24.09.2015, through newly engaged counsel, the appellants
filed I.A. 21049/2015 under Order VI Rule 17 CPC seeking
amendment of their reply. The application set out in full the text
of the proposed amendments.
(h) By order dated 14.01.2016, the learned Single Judge allowed the
amendments founded on the family agreement dated 11.10.1993
and the Will dated 16.08.2000, together with the consequential
facts. The two pleas of limitation were declined. The amended
written statement was directed to be filed within six weeks,
subject to costs of ₹25,000/-. The six weeks expired on
25.02.2016.
(i) On 21.01.2016, appellant No. 1 applied for a certified copy of
the order dated 14.01.2016. He thereafter travelled to Canada,
returned to India on 03.03.2016, and collected the certified copy
on 04.03.2016. He remained unwell at Bijnor, Uttar Pradesh,
until about 15.03.2016.
(j) On 16.03.2016, the appellants filed FAO(OS) 114/2016 against
the order dated 14.01.2016, insofar as it declined the pleas of
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limitation. Notice on the application for condonation of delay
was issued on 08.04.2016. The respondent also assailed the same
order in FAO(OS) 190/2016, insofar as it allowed the
amendments.
(k) On 20.05.2016, before the learned Joint Registrar, counsel for
the appellants offered the costs of ₹25,000/-. Counsel for the
respondent declined to accept them, stating that the respondent
had preferred an appeal against the order dated 14.01.2016.
(l) On 02.06.2016, the appellants filed I.A. 7906/2016 under
Section 148 read with Section 151 CPC seeking enlargement of
time. On 11.07.2016, they filed the amended written statement.
(m) On 22.08.2016, the respondent was granted two weeks to reply
to I.A. 7906/2016. On 19.09.2016, at the request of learned
counsel for the respondent, the Test Case was adjourned to a date
beyond the date fixed in the cross-appeals.
(n) By a common judgment dated 01.11.2018, the Division Bench
dismissed FAO(OS) 114/2016 with costs, and FAO(OS)
190/2016 without costs. Review Petition No. 37/2019 was
dismissed on 27.09.2019. SLP(C) No. 3345/2020 was dismissed
on 03.02.2020, and the costs imposed by this Court were waived
by the Supreme Court on 19.05.2020.
(o) The respondent filed his reply to I.A. 7906/2016 on 30.08.2022.
The appellants filed their rejoinder in 2023, annexing pages of
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the passport of appellant No. 1 and a medical certificate dated
10.03.2016.
(p) By order dated 17.01.2025, the learned Single Judge called upon
appellant No. 1 to file an affidavit explaining discrepancies in the
travel dates; the affidavit was filed on 24.01.2025. Arguments
were heard on 04.03.2025, and the impugned judgment was
pronounced on 19.03.2025.
(q) The present appeal was filed on 26.05.2025.
III. THE IMPUGNED JUDGMENT
5. The learned Single Judge framed the primary issue as whether Order
VI Rule 18, read with Section 148 CPC, empowers the Court to enlarge time
beyond the thirty-day limit stipulated in Section 148. The learned Single
4
Judge considered Salem Advocate Bar Association v. Union of India , Glaxo
5
Smithkline Consumer Healthcare v. Anchor Health & Beautycare , Union of
6
India v. Pramod Gupta , Union of India v. Rajiv Gupta (RFA 84/1987),
7
Darshan Singh v. Kewal Krishan , and Evoke Building Concepts Pvt. Ltd. v.
8
Hindware Home Retail Pvt. Ltd. . On that basis, the learned Single Judge
answered the issue in favour of the existence of the power, as follows:
"50. Once an amendment has been allowed on merits, but the
prescribed time for incorporating the amendment has lapsed,
it would be within the inherent powers of the Court under
Order VI Rule 18 of CPC to grant an extension. Such
discretion, however, must be exercised judiciously and only
4
(2005) 6 SCC 344
5
2009 SCC OnLine Del 1899
6
(2005) 12 SCC 1
7
2002 SCC OnLine Raj 107
8
2010 SCC OnLine Del 3855
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when the conduct of the party seeking an extension does not
reflect contumaciousness, gross negligence, or any ulterior
motive. The Supreme Court in Kailash v. Nanhku held that
the object of procedural laws is to facilitate the
administration of justice and not to frustrate it, particularly
when no significant prejudice is caused to the opposing party.
Thus, extensions may be granted in furtherance of substantial
justice. No doubt, the Court must examine the reasons for
delay and must curb any attempt to abuse the judicial
process.
51. In light of the foregoing discussion, this Court finds no
merit in the objection raised by the petitioners in asserting
that the Court lacks the power under Order VI Rule 18 of the
CPC to extend the time prescribed in an order, or to extend
beyond the fourteen (14) days period stipulated in cases
where no specific timeline is mentioned. The inherent
authority of the Court to grant such extensions, as established
by judicial precedents and the plain reading of Order VI Rule
18, is well-recognized and cannot be undermined by a rigid
interpretation that runs counter to the principles of
substantial justice."
6. Having so held, the learned Single Judge examined the explanation
offered for the delay and declined to extend time. The operative portion of the
impugned judgment reads as under:
"57. Thus, upon considering the submissions of the parties
regarding the travel dates to Canada and examining the
affidavit placed on record, the Court finds itself unable to
accede to the contention of the respondents for the following
reasons:-
i. The respondent has primarily contended that he was unable
to file the amended written statement due to his unexpected
travel to Canada and the subsequent illness he suffered.
However, a perusal of the affidavit and submissions reveals
that there is no concrete timeline regarding his travel, nor
has he furnished any documentary evidence substantiating
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the dates of his journey. Thus, the foundational cause of delay
remains unsubstantiated.
ii. The assertion of the respondent that he possesses no
documentation whatsoever, such as an email, passport, visa-
stamped photograph, flight ticket, or even a digital copy of
any of these, strains the credulity of the submission. The sole
requirement was for the respondent to specify the exact date
of his departure to Canada, which he failed to do. The Court
is of the opinion that such information is elementary and
could have been readily provided. In the absence of any
supporting documentation, the Court is constrained to
conclude that the travel dates of the respondents remain
undetermined.
iii. The knowledge of the order dated 14.01.2016 was, in
itself, sufficient to require compliance. At no point in the
affidavit has the respondents averred that they were unaware
of its contents. On the contrary, it was stated by the learned
counsel for the petitioners that the order was dictated in open
court in his presence and the said fact remains
uncontroverted by him. Consequently, the presumption of due
knowledge of the order dated 14.01.2016 stands established,
rendering his argument, regarding the necessity of obtaining
a certified copy, immaterial to the obligation of filing the
amended written statement.
iv. The present lis pertains solely to the limitation period for
filing the amended written statement and does not concern
the limitation for filing an appeal against the order dated
14.01.2016. Given that the respondent was aware of the
order on the same day and, even by his own admission, he
had not traveled to Canada until the end of January 2016, his
plea that he lacked sufficient time to provide instructions to
his then-counsel is devoid of merit.
58. Thus, in light of the foregoing observations, the Court is
of the considered opinion that while it possesses inherent
powers under Order VI Rule 18 of the CPC to take on record
the amended written statement by extending the time
prescribed for amendment, the facts and circumstances of the
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present case do not warrant the exercise of such discretion.
The delay is, by and large, unexplained and the underlying
reasons for the delay remain unsubstantiated. The
respondent has failed to demonstrate any bona fide
justification for seeking an extension and has exhibited a
conspicuous reluctance to clarify the travel dates, which are
patently inconsistent across various documents submitted on
his behalf.
59. Accordingly, the Court finds no merit in the application
and declines to extend the time for taking on record the
amended written statement. Consequently, the instant
application stands rejected on account of the expiration of
the prescribed period for filing the amended written
statement."
IV. SUBMISSIONS ON BEHALF OF THE APPELLANTS
7. Mr. Nitesh Kumar Singh, learned counsel for the appellants, submitted
that the learned Single Judge rightly held that the Court has power to extend
time beyond thirty days. However, it was submitted, the learned Single Judge
erred in refusing to exercise that power, essentially on the solitary ground that
appellant No. 1 could not state the precise date of his departure to Canada.
8. It was submitted that the six weeks granted on 14.01.2016 ran until
25.02.2016, and that the precise date of departure was immaterial to the
existence of sufficient cause. The copying-agency receipt shows that
appellant No. 1 was in Delhi on 21.01.2016. The new Canadian passport
issued on 16.02.2016 shows that he was in Canada within the six-week period.
The arrival stamp of 03.03.2016 shows his return. The reference in the
rejoinder to "09/12/2016" was stated to be a typographical error. It was further
stated that the old passport had been surrendered to the Canadian authorities
on renewal, and that records more than eight years old could not be traced.
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9. It was submitted that the medical records of the grandson of appellant
No. 1 are protected under the Canadian Personal Information Protection and
Electronic Documents Act. It was further submitted that appellant No. 1 could
not compel his son to place them on record in litigation instituted by a cousin.
10. It was submitted that the then counsel for the appellants was away at
his native place in Punjab from 09.02.2016 to 22.02.2016, and again from
09.04.2016 to 18.04.2016, attending to his bed-ridden mother. He was
hospitalised with typhoid from 04.05.2016 to 09.05.2016. A litigant, it was
urged, ought not to suffer for the inability of counsel. Emails dated 27.01.2016
and 01.02.2016 sent by appellant No. 1 to his counsel were relied upon to
show that he remained vigilant.
11. It was submitted that both sides had assailed the order dated 14.01.2016
before the Division Bench, and that both awaited the outcome of the cross-
appeals. Learned counsel pointed out that the respondent himself declined to
accept the costs on 20.05.2016 because of his own pending appeal. It was
further pointed out that the respondent took about six years to file his reply to
I.A. 7906/2016, though two weeks had been granted. It was stated that on
05.03.2024 the parties had agreed not to oppose each other's applications for
condonation of delay in pleadings.
12. Reliance was placed on paragraph 41 of the decision of the Supreme
9
Court in Salem Advocate Bar Association v. Union of India , which reads as
under:
"41. The amendment made in Section 148 affects the power
of the court to enlarge time that may have been fixed or
9
(2005) 6 SCC 344
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granted by the court for the doing of any act prescribed or
allowed by the Code. The amendment provides that the
period shall not exceed 30 days in total. Before amendment,
there was no such restriction of time. Whether the court has
no inherent power to extend the time beyond 30 days is the
question. We have no doubt that the upper limit fixed in
Section 148 cannot take away the inherent power of the court
to pass orders as may be necessary for the ends of justice or
to prevent abuse of process of the court. The rigid operation
of the section would lead to absurdity. Section 151 has,
therefore, to be allowed to operate fully. Extension beyond
maximum of 30 days, thus, can be permitted if the act could
not be performed within 30 days for reasons beyond the
control of the party. We are not dealing with a case where
time for doing an act has been prescribed under the
provisions of the Limitation Act which cannot be extended
either under Section 148 or Section 151. We are dealing with
a case where the time is fixed or granted by the court for
performance of an act prescribed or allowed by the court."
13. Learned counsel further relied upon the following decisions:
10
(i) Bharat Kalra v. Raj Kishan Chabra , wherein the Supreme
Court, in a suit not governed by the Commercial Courts Act,
2015, set aside an order refusing to condone a delay of 193 days
in filing the written statement, observing that the delay could be
compensated by costs;
11
(ii) Nashik Municipal Corporation v. R.M. Bhandari ;
12
(iii) Rachna Mediratta v. Girdhari Lal ; and
10
2022 SCC OnLine SC 613
11
(2016) 6 SCC 245
12
2023 SCC OnLine Del 3915
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(iv) The order dated 09.01.2012 of the Division Bench in FAO(OS)
12/2012, Suhas Chakma v. South Asia Human Rights Doc.
Trust , affirming the decision of the learned Single Judge
condoning a delay of about 97 days in filing an amended plaint.
14. By CM APPL. 61014/2026, the appellants seek to place on record a
travel itinerary stated to have been obtained from China Eastern Airlines. It is
stated to show that appellant No. 1 travelled from Delhi to Vancouver on
21.01.2016.
V. SUBMISSIONS ON BEHALF OF THE RESPONDENT
15. Per contra , Mr. Rajiv Aneja, learned counsel for the respondent,
opposed the appeal and supported the impugned judgment. It was submitted
that the right of respondent Nos. 2 and 5 in the Test Case to file their written
statement stood struck off in the year 2012. Thereafter, in the year 2015, they
filed a written statement without seeking the permission of the Court. If this
Court were now to permit the appellants to strike off some of the pleadings
and substitute others, the meaning and complexion of the pleadings would,
for the respondent, change completely.
16. It was submitted that none of the defences taken by the appellants have
been substantiated by any evidence. The family agreement and the Will are,
according to the respondent, forged and fabricated documents. Their
introduction at a belated stage would cause serious prejudice to the
respondent.
17. It was submitted that every ground now urged was considered by the
learned Single Judge. The refusal to extend time is an exercise of judicial
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discretion on facts, which the appellate court ought not to substitute with its
own.
18. It was submitted that the appellants could not support their plea for
condonation of delay without filing any supportive document pertaining to the
delay. The grounds of sickness and travel were raised without any evidence:
(a) no medical record of the grandson, of the then counsel or of his
mother was filed;
(b) no ticket or travel record was filed; and
(c) the plea that the old passport was surrendered was untenable, as
Canadian law imposes no such requirement.
19. It was submitted that, during the very period in which the amended
written statement was due, the appellants filed an appeal against the order
dated 14.01.2016, an application for condonation of delay in that appeal, and
an application for condonation of delay in filing additional documents (I.A.
6438/2016). If they could take all these steps, it was asked, why was the
written statement not filed. It was submitted that the order dated 14.01.2016
was available on the website of this Court, so the certified copy was irrelevant.
It was further submitted that no stay was granted by the Division Bench, so
the order had to be complied with.
20. It was submitted that the appellants have given shifting versions of the
date of departure, which is a matter of record:
(a) 22.02.2016 in the application;
(b) 09.12.2016 in the rejoinder;
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(c) no date at all in the affidavit filed pursuant to the order dated
17.01.2025; and
(d) 21.01.2016 in CM APPL. 61014/2026.
It was urged that the additional evidence does not satisfy Order XLI Rule 27
CPC.
21. It was submitted that the amended written statement filed on
11.07.2016 incorporates objections relating to mutation and limitation which
were specifically declined by the order dated 14.01.2016, and that it cannot
be taken on record for this reason as well. It was also urged that the appeal is
itself barred by limitation, and that the delay has not been satisfactorily
explained.
22. On the question of law, it was submitted that the Court cannot extend
time beyond thirty days in view of Section 148 read with Order VI Rule 18
CPC. Reliance was placed on paragraphs 9 and 10 of Glaxo Smithkline
13
Consumer Healthcare v. Anchor Health & Beautycare , which read as
under:
"9. ... Under Order VI Rule 18 CPC the Plaintiff "shall not
be permitted to amend after the expiration of such limited
time as aforesaid or of such 14 days as the case may be,
unless the time is extended by the Court". There is, therefore,
a power of the Court to extend the time. Under Section 148
CPC, after the amendment in 2002, the discretion vested in
the Court to enlarge the time cannot exceed 30 days in total
"even though the period originally fixed or granted may have
expired." A collective reading of Section 148 and O VI Rule
18 CPC would show that the Court can not enlarge the time
for filing the amended plaint beyond 30 days of the period
13
2009 SCC OnLine Del 1899
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fixed by the Court in the order by which the amendment is
allowed and where no such time is fixed within 14 days from
the date of such order. ...
10. The legislative intent in curtailing the discretion of the
Court to condone the delay is evident from the amendment
made in 2002 to Section 148 CPC. Although discretion is
vested in the Court, the period up to which delay can be
condoned by it is limited to 30 days after the date of the order.
..."
14
23. Reliance was also placed on Darshan Singh v. Kewal Krishan ,
wherein it was held as under:
"20. From the above, a clear picture emerges that in both the
eventualities i.e. where the Court has fixed a time for filing
the amended pleadings and where no time has been fixed and
a parte is to file it within fourteen days from the date of the
order, the Court has been clothed with the competence to
extend the time. However, the time is not to be extended in a
routine manner. The Court has to examine the facts and
circumstances and if it comes to the conclusion that there was
"sufficient cause" or "good cause" or "sufficient grounds" on
which the party could not file the amended pleadings, the
period may be extended.
21. ... Therefore, being procedural law, it may be held that
the Court may have the power to extend the period but not
beyond the period of thirty days in total from the date of
expiry of the period.
xxx xxx xxx
37. Thus, in view of the above, it may be held that in such a
circumstance, the mistake of a counsel may be taken into
account and considered as a "sufficient cause", but there can
be no general proposition that mistake of counsel, by itself, is
always a "sufficient cause". ..."
14
2002 SCC OnLine Raj 107
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24. Reliance was further placed on paragraph 138 of Union of India v.
15
Pramod Gupta :
"138. ... The consequence of failure to amend the pleadings
within the period specified therein as laid down in Order 6
Rule 18 of the Code is that the party shall not be permitted to
amend its pleadings thereafter unless the time is extended by
the court. It is not in dispute that such an order extending the
time specified in Order 6 Rule 18 has not been passed."
25. Reliance was also placed on paragraph 10(iv) of the decision of the
16
Division Bench of this Court in Union of India v. Rajiv Gupta :
"(iv) Since no order extending the time for amendment of
pleadings in terms of Order 6 Rule 18 CPC had been passed
and the amendments not having been carried out, the
claimants could not be permitted to amend its pleadings."
26. Learned counsel also relied upon the following decisions:
17
(i) R.N. Jadi & Brothers v. Subhashchandra , to contend that an
extension of time is an exception which must be justified; and
18
(ii) Jawahar Lal Sazawal v. State of J&K , to contend that Rachna
Mediratta (supra) is per incuriam for not noticing Glaxo
19
Smithkline .
15
(2005) 12 SCC 1
16
RFA No. 84/1987, decided on 28.08.2006
17
(2007) 6 SCC 420
18
(2002) 3 SCC 219
19
supra
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VI. ISSUES FOR DETERMINATION
27. We have heard learned counsel for the parties at length and perused the
record, including the trial court record placed before us. The following issues
arise for determination:
(i) Whether the Court has power to extend the time for filing an
amended written statement beyond thirty days of the period fixed
in the order granting leave to amend;
(ii) Whether the learned Single Judge was justified in declining to
exercise that power, and whether the refusal warrants
interference in appeal;
(iii) Whether the remaining objections of the respondent disentitle the
appellants to relief; and
(iv) The terms on which relief, if any, ought to be granted.
VII. ANALYSIS AND FINDINGS
Issue (i): Power to extend time beyond thirty days
28. On this issue, we are in consonance with the learned Single Judge. In
paragraphs 21 to 51 of the impugned judgment, the learned Single Judge
examined the interplay between Order VI Rule 18 and Section 148 CPC and
held that the Court is not denuded of the power to extend the time for carrying
out an amendment beyond thirty days of the period fixed in the order granting
leave. The respondent has sought to support the impugned judgment on the
contrary ground, but we see no reason to take a different view.
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29. The crux of the matter lies in a short compass. Order VI Rule 18 CPC
itself provides that a party who fails to amend within the time limited shall
not be permitted to amend thereafter "unless the time is extended by the
Court". The provision reserves the power of extension in the Court without
prescribing any outer limit, and Section 148 CPC, being a general provision,
cannot be read into it so as to curtail that specific power. In any event,
paragraph 41 of Salem Advocate Bar Association (supra), extracted above,
makes it clear that the thirty-day ceiling in Section 148 cannot take away the
inherent power of the Court to extend time where the act could not be
performed within that period for reasons beyond the control of the party. To
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the same effect is Kailash v. Nanhku , where the Supreme Court held that the
time schedule for filing a written statement "does not impose an embargo on
the power of the Court to extend the time".
30. We are also in agreement with the learned Single Judge that Glaxo
Smithkline (supra), having been rendered without noticing paragraph 41 of
Salem Advocate Bar Association (supra), cannot be followed insofar as it
holds that the Court is powerless to extend time beyond thirty days, and that
the view taken in South Asia Human Rights Doc. Trust , which stands affirmed
by a Division Bench of this Court in FAO(OS) 12/2012, is the correct one.
The contention that Rachna Mediratta (supra) is per incuriam for not noticing
Glaxo Smithkline (supra) must, therefore, fail. The decisions in Pramod Gupta
(supra) and Rajiv Gupta (supra) were rendered in cases where no extension
had been sought, and themselves recognise that the bar operates "unless the
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(2005) 4 SCC 480
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time is extended by the court"; Darshan Singh (supra) itself proceeded to
examine whether sufficient cause was made out.
31. Issue (i) is accordingly answered in favour of the appellants. The Court
has the power to extend the time for filing an amended written statement
beyond thirty days of the period fixed, upon sufficient cause being shown.
Issue (ii): Exercise of discretion and appreciation of grounds
32. The refusal to extend time is undoubtedly a discretionary order. An
appellate court does not ordinarily substitute its own discretion for that of the
court of first instance.
33. It will, however, interfere where material and relevant evidence on
record has not been considered, where findings are contrary to the record, or
where relevant considerations bearing on the exercise of discretion have been
left out of account. An appeal under Section 10 of the Delhi High Court Act
is, moreover, an appeal on facts as well as law. Tested on this anvil, and with
the greatest respect to the learned Single Judge, we find that the impugned
judgment calls for interference for the reasons that follow.
(a) The travel of appellant No. 1 is documented on the record
34. The foundational finding in paragraph 57(i) of the impugned judgment
is that appellant No. 1 had not "furnished any documentary evidence
substantiating the dates of his journey", so that "the foundational cause of
delay remains unsubstantiated". The record, however, contains the following
documents, each of which was before the learned Single Judge:
(1) The copying-agency receipt (Diary No. 831/2016). It shows that
appellant No. 1 personally applied for a certified copy of the
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order dated 14.01.2016 at the counter of this Court on 21.01.2016
at 12:12 hours. The copy was prepared on 01.02.2016 and
delivered on 04.03.2016.
(2) The emails dated 27.01.2016 and 01.02.2016. These were sent
by appellant No. 1 from his Canadian email account to his then
counsel, forwarding a typed copy of the order dated 14.01.2016
and a typed list of additional documents. The emails of
27.01.2016 bear a time-zone offset of "-0800", which
corresponds to Pacific Standard Time, the time zone of British
Columbia, where appellant No. 1 resides in Canada.
(3) The Canadian passport No. HG699047. It was issued to
appellant No. 1 at Edmonton, Canada, on 16.02.2016.
(4) The immigration stamps on that passport. The passport bears a
stamp recording the arrival of appellant No. 1 at New Delhi on
03.03.2016.
(5) The medical certificate of Beena Prakash Hospital, Bijnor, dated
10.03.2016. It records treatment and advice of rest until
15.03.2016.
35. Read together, these documents establish, with reasonable certainty,
the following facts:
(a) appellant No. 1 was in Delhi on 21.01.2016;
(b) he left India shortly thereafter, and before 01.02.2016, as stated
in his affidavit dated 24.01.2025 and noted in paragraph 55(c) of
the impugned judgment; he was in Canada on 16.02.2016;
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(c) he returned to India only on 03.03.2016, after the six-week
period had expired on 25.02.2016; and
(d) he was unwell until 15.03.2016.
Of the six weeks granted on 14.01.2016, appellant No. 1 was therefore in
India, at the most, for about the first two and a half weeks. We do not rest our
conclusion on the time-zone offset in the emails, which may at best be
corroborative. Even without it, the receipt, the passport and the arrival stamp
suffice. The finding that the foundational cause was wholly unsubstantiated
is, with respect, contrary to the documentary record.
(b) The discrepancy in the date of departure
36. The principal reason for the refusal was the inconsistency in the stated
date of departure. We have examined the discrepancy closely. The application
dated 23.05.2016 gave the date as 22.02.2016. The rejoinder gave it as
09.12.2016 and relied upon the passport. The passport annexed to the
rejoinder does bear a departure stamp at New Delhi dated 09.12.2016. That
stamp, however, evidently relates to a subsequent journey undertaken in
December 2016, after the amended written statement had been filed.
Paragraph 12 of the impugned judgment records the respondent's submission
that the stamp corroborated the date of 09.12.2016. The date in the rejoinder
is thus traceable to a misreading of a genuine stamp, and not to fabrication.
37. More significantly, none of the versions confers any advantage upon
the appellants. Every version places appellant No. 1 abroad within the six-
week period. An earlier date of departure, which is what the documents
indicate, would only enlarge the period of his absence and so strengthen his
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case. A litigant who sought to mislead the Court would hardly understate the
duration of his own absence. The variance is consistent with pleadings drafted
by different counsel, years after the event, without access to the old passport.
It is not consistent with a deliberate attempt to deceive. The affidavit dated
24.01.2025 frankly disclosed the inability of appellant No. 1 to state the exact
date and undertook to place it on record if traced. With respect, we are unable
to read that disclosure as "conspicuous reluctance" warranting the extreme
consequence of shutting out a defence.
38. As to the grandson's medical records, the purpose of the journey is of
secondary importance once the fact of absence is documented. The
explanation that the records are protected by Canadian privacy law, and that
the son of appellant No. 1 did not consent to their production in litigation with
a cousin, is not inherently improbable. It cannot, in any event, displace the
documentary proof of absence.
(c) The absence of the then counsel
39. The then counsel for the appellants was away at Dhariwal, District
Gurdaspur, Punjab, from 09.02.2016 to 22.02.2016, attending to his bed-
ridden mother. This was within the six weeks. He was again away from
09.04.2016 to 18.04.2016, and was hospitalised for typhoid from 04.05.2016
to 09.05.2016. These averments find place in I.A. 7906/2016, in paragraph 8
of which the appellants also offered to file the then counsel's own affidavit
and the relevant medical records, if so directed. Nothing in the record placed
before us indicates that any such direction was issued. It is settled that a
litigant who has engaged counsel ought not ordinarily to suffer for counsel's
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default or incapacity ( Rafiq v. Munshilal ). For a substantial part of the six-
week period, therefore, both the party and his counsel were unavailable for
reasons beyond their control.
(d) The period after March 2016 and the pendency of the cross-appeals
40. The respondent's strongest submission is that the appellants could file
an appeal, an application for condonation of delay and an application for
additional documents during this period, but did not file the written statement.
We are unable to accept that this indicates mala fides, for the following
reasons.
41. The order dated 14.01.2016 was itself under challenge from both sides.
The appellants challenged the refusal of the limitation pleas. The respondent,
in FAO(OS) 190/2016, challenged the very grant of the amendments. The
content of the amended written statement thus depended upon the outcome of
the cross-appeals. Had the respondent's appeal succeeded, an amended written
statement would have been rendered futile. The appellants' pursuit of their
appeal was the pursuit of a remedy available in law against the very order
whose compliance is in question. It is not evidence of indifference towards it.
42. The conduct of the respondent during the same period is telling:
(a) Under paragraph 9 of the order dated 14.01.2016, the costs of
₹25,000/- were to be paid "alongwith the filing of the written
statement". On 20.05.2016, when the costs were offered, the
respondent declined to accept them precisely because his own
appeal against that order was pending.
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(b) On 19.09.2016, it was at the request of learned counsel for the
respondent that the Test Case was deferred to await the cross-
appeals.
(c) Though granted two weeks on 22.08.2016, the respondent filed
his reply to I.A. 7906/2016 only on 30.08.2022, after a delay of
about six years.
The respondent thus himself treated the stage of compliance as deferred
pending the appeals. He cannot be permitted to approbate and reprobate.
Having so conducted himself, he cannot now insist that the appellants alone
were bound to adhere strictly to a timeline which both sides treated as in
suspense.
43. It is true that the filing of an appeal does not by itself operate as a stay
(Order XLI Rule 5 CPC). The question before us, however, is not whether the
appellants were legally excused from compliance. It is whether they have
shown sufficient cause for extension. A bona fide belief, shared by both sides,
that compliance should abide the outcome of the cross-appeals is a relevant
circumstance in that enquiry. Notably, the appellants did not in fact await the
outcome. They applied for extension on 02.06.2016 and filed the amended
written statement on 11.07.2016, more than two years before the appeals were
decided. The delay beyond the six weeks is of about 137 days. The amended
written statement has remained on the record of the Test Case for more than
nine years. We also note that the appellants pursued the certified copy
diligently, collecting it the day after returning to India. While the learned
Single Judge was right that knowledge of the order sufficed for compliance,
however, that diligence is inconsistent with an inference of indolence.
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(e) Prejudice, proportionality and the interests of justice
44. The exercise of discretion in such matters must weigh the explanation
offered against the consequence of refusal and the prejudice to the opposite
party. The Division Bench, in its judgment dated 01.11.2018, held that the
amendments allowed "relate to material factual aspects and are concerning
the valuable rights of the parties in the estate left behind by Pyare Lal Sharma
and Shanta Sharma". The refusal to extend time would exclude, on a
procedural default of about 137 days, defences which this Court has held
necessary for the determination of the real controversy. Those defences
include the plea founded on the family agreement dated 11.10.1993, which
finds no place in the original reply. Against this, no prejudice to the
respondent has been demonstrated, beyond the delay itself, which can be
compensated by costs. The respondent was on notice of the precise text of the
amendments from 24.09.2015, when I.A. 21049/2015 was filed.
45. In Bharat Kalra (supra), the Supreme Court set aside an order refusing
to condone a delay of 193 days in filing a written statement in a suit not
governed by the Commercial Courts Act. The Court held, relying on Kailash
(supra), that the time-limit was not mandatory, and that the delay was capable
22
of being compensated by costs. In State of Punjab v. Shamlal Murari , the
Supreme Court observed as under:
"8. ... We must always remember that processual law is not
to be a tyrant but a servant, not an obstruction but an aid to
justice. It has been wisely observed that procedural
prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice.
Where the non-compliance, tho' procedural, will thwart fair
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hearing or prejudice doing of justice to parties, the rule is
mandatory. But, grammar apart, if the breach can be
corrected without injury to a just disposal of the case, we
should not enthrone a regulatory requirement into a
dominant desideratum. After all, courts are to do justice, not
to wreck this end product on technicalities. ..."
46. Applying these principles, the present case answers the test laid down
in Salem Advocate Bar Association (supra) and Kailash (supra):
(a) for the major part of the six-week period, the act could not be
performed for reasons beyond the control of the appellants,
namely the documented absence of appellant No. 1 and the
absence of his counsel;
(b) the subsequent period is explained by counsel's illness and by the
bona fide pendency of cross-appeals, which both sides treated as
affecting compliance; and
(c) refusal would occasion grave injustice by foreclosing a material
defence in a family testamentary dispute, while the delay is fully
compensable in costs.
The conduct of the appellants, though not free from lapses, cannot be
characterised as contumacious, grossly negligent or actuated by any ulterior
motive, which is the standard the learned Single Judge himself set in
paragraph 50 of the impugned judgment. Issue (ii) is answered in favour of
the appellants.
Issue (iii): The remaining objections of the respondent
47. Status of the pleadings of respondent Nos. 2 and 5. The objection that
the right of respondent Nos. 2 and 5 to file their written statement was closed
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in 2012, and that they filed one in 2015 without leave, does not arise from I.A.
7906/2016. That application was filed by respondent Nos. 3 and 4 alone. Nor
is the objection the subject matter of the impugned judgment. Respondent
Nos. 2 and 5 are not parties to this appeal. We express no opinion on the status
of their pleadings, and it shall be open to the respondent to raise the objection
before the learned Single Judge in accordance with law.
48. Alleged change in the meaning of the pleadings. The submission that
permitting the appellants to strike off and substitute pleadings would
completely change the meaning of their pleadings is, in substance, an
objection to the permissibility of the amendments. That question stands
concluded. The order dated 14.01.2016 allowed the amendments. The
Division Bench, in dismissing FAO(OS) 190/2016, held that the original reply
contained no admission which the amendments withdrew, and that no
question of inconsistency arose. It observed as under:
"15. ... All amendments of the pleadings, it is settled law, are
to be allowed as long as these are necessary for the
determination of the real controversy in relation to the
subject matter of an action. Though, it is equally true that an
amendment cannot be allowed, when it has the effect of
withdrawing an admission made by a party in the original
proceedings, it is a matter of record that in the original
reply/objections, which was sought to be amended, Ajay and
Vijay did not make any admission, which the amendments
allowed have the effect of being taken away. Then, whether
any of the documents viz. the subject family agreement and/or
the subject Will are forged and fabricated is a matter that can
be adjudicated only on trial."
The review petition and the special leave petition against that judgment were
dismissed. The respondent cannot reopen, at the stage of extension of time, a
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question which has attained finality between the parties. The respondent's
legitimate concern that the appellants should not go beyond the leave granted
is addressed under Issue (iv).
49. Absence of evidence in support of the defence. At the stage of pleadings,
the truth of a defence is not in issue. The learned Single Judge observed in the
order dated 14.01.2016 that "whether these documents are genuine documents
or are forged and fabricated documents pertain to merits of the matter". The
Division Bench reiterated that this is "a matter that can be adjudicated only
on trial". This objection is premature and is rejected.
50. The matter was already considered by the learned Single Judge. An
intra-court appeal under Section 10 is a full appeal. For the reasons recorded
under Issue (ii), the relevant documentary material and relevant circumstances
were not fully considered. This objection, therefore, does not bar interference.
51. Absence of supporting documents regarding delay. For the reasons
recorded in paragraphs 34 and 35 above, this submission is not borne out. The
receipt, the passport, the arrival stamp and the medical certificate were on
record.
Issue (iv): Scope of the amended written statement and terms
52. The respondent has objected that the amended written statement dated
11.07.2016 incorporates the pleas of limitation and mutation which were
declined on 14.01.2016. That objection deserves to be addressed. A party
granted leave to amend may amend only to the extent of the leave.
53. Accordingly, while extending time, we consider it necessary to direct
that the amended written statement shall be strictly confined to the
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amendments permitted by the order dated 14.01.2016, as affirmed on
01.11.2018.
VIII. CONCLUSION AND DIRECTIONS
54. In view of the foregoing discussion, the appeal is allowed. Any
averment, in the amended written statement, in excess of the leave granted
shall be struck off upon such directions of the court.
55. The appellants shall pay costs of ₹25,000/- (Rupees Twenty-Five
Thousand only) each, that is, ₹50,000/- in the aggregate, to the respondent
within four weeks from today. This is in addition to the costs of ₹25,000/-
imposed by the order dated 14.01.2016, which, if not already paid, shall be
paid. Payment of the costs is a condition precedent to the amended written
statement being taken on record.
56. The appeal, along with the pending applications, stands disposed of in
the above terms.
NISHA SAHAY SAXENA, J
VIVEK CHAUDHARY, J
NOVEMBER 06, 2026
jd
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