Ajay Sharma & Anr. vs Manu Markande

S. Particulars Paragraph No. Nos.

I THE APPEAL 1 – 2

II BRIEF FACTS 3 – 4

III THE IMPUGNED JUDGMENT 5 – 6

IV SUBMISSIONS ON BEHALF OF THE 7 – 14 APPELLANTS

V SUBMISSIONS ON BEHALF OF THE 15 – 26 RESPONDENT

VI ISSUES FOR DETERMINATION 27

VII ANALYSIS AND FINDINGS 28 – 52

The present intra-court appeal under Section 10 of the Delhi High Court Act, 1966 assails the judgment dated 19.03.2025^{11.the impugned judgment} 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 18 of the Code of Civil Procedure, 1908^22.CPC 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.

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.

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 Khanna and Smt. Vinay Sharma. The principal asset of the estate is the property bearing No. C-113, Naraina Vihar, New Delhi^{33.Subject Property}.

The facts relevant to the present appeal, in chronological order, are as follows:

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 Judge considered Salem Advocate Bar Association v. Union of India^{44.(2005) 6 SCC 344}, Glaxo Smithkline Consumer Healthcare v. Anchor Health & Beautycare^{55.2009 SCC OnLine Del 1899}, Union of India v. Pramod Gupta^{66.(2005) 12 SCC 1} , Union of India v. Rajiv Gupta (RFA 84/1987), Darshan Singh v. Kewal Krishan^{77.2002 SCC OnLine Raj 107}, and Evoke Building Concepts Pvt. Ltd. v. Hindware Home Retail Pvt. Ltd.^{88.2010 SCC OnLine Del 3855}. On that basis, the learned Single Judge answered the issue in favour of the existence of the power, as follows:

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:

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.

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.

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.

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.

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.

Reliance was placed on paragraph 41 of the decision of the Supreme Court in Salem Advocate Bar Association v. Union of India^{99.(2005) 6 SCC 344}, which reads as under:

Learned counsel further relied upon the following decisions:

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.

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.

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.

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 discretion on facts, which the appellate court ought not to substitute with its own.

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:

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.

It was submitted that the appellants have given shifting versions of the date of departure, which is a matter of record:

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.

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 Consumer Healthcare v. Anchor Health & Beautycare^{1313.2009 SCC OnLine Del 1899}, which read as under:

Reliance was also placed on Darshan Singh v. Kewal Krishan^{1414.2002 SCC OnLine Raj 107} , wherein it was held as under:

Reliance was further placed on paragraph 138 of Union of India v. Pramod Gupta^{1515.(2005) 12 SCC 1}:

Reliance was also placed on paragraph 10(iv) of the decision of the Division Bench of this Court in Union of India v. Rajiv Gupta^{1616.RFA No. 84/1987, decided on 28.08.2006}:

Learned counsel also relied upon the following decisions:

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:

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.

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 the same effect is Kailash v. Nanhku^{2020.(2005) 4 SCC 480}, 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".

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 time is extended by the court"; Darshan Singh (supra) itself proceeded to examine whether sufficient cause was made out.

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.

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.

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.

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:

Read together, these documents establish, with reasonable certainty, the following facts:

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.

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 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.

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.

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 default or incapacity (Rafiq v. Munshilal^{2121.(1981) 2 SCC 788}). For a substantial part of the six-week period, therefore, both the party and his counsel were unavailable for reasons beyond their control.

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.

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.

The conduct of the respondent during the same period is telling:

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.

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.

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 of being compensated by costs. In State of Punjab v. Shamlal Murari^{2222.(1976) 1 SCC 719}, the Supreme Court observed as under:

Applying these principles, the present case answers the test laid down in Salem Advocate Bar Association (supra) and Kailash (supra):

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 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.

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:

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 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).

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.

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.

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.

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.

Accordingly, while extending time, we consider it necessary to direct that the amended written statement shall be strictly confined to the amendments permitted by the order dated 14.01.2016, as affirmed on 01.11.2018.

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.

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.

The appeal, along with the pending applications, stands disposed of in the above terms.