SMT. MANJU GAIND vs SMT. KAMLA RANI & ORS
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th February, 2024
+ CS(OS) 317/2018
SMT. MANJU GAIND ….. Plaintiff
Through: Mr. Kunal Tandon, Mr. Ajay Gaind and Mr. Abhay Gaind, Advocates.
versus
SMT. KAMLA RANI & ORS ….. Defendants
Through: Mr. Manish Vashisth, Sr. Advocate with Mr. P.K. Rawal, Mr. Tarun Agarwal, Mr. Vanshay Kaul, Mr. Ajay Tejpal, Mr. Kulvardhan Sharma, Mr. Vedansh Vashisth, Advocates for D-1 to D-5.
Mr. Ray Vikram Nath, Mr. Pranay Kumar and Mr. Harshvardhan Jha, Advocates for D-6.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 7919/2019 (under Order VI Rule 17 read with Section 151 CPC on behalf of defendant No.1 to 5 for Amendment of the Written Statement)
1. An application has been filed on behalf of defendant No.1 to 5 for Amendment of the Written Statement.
2. It is submitted in the application that the present suit has been filed for Partition and Rendition of Accounts. The Written Statements have been filed on behalf of defendant No.1 to 5. The suit has been filed by the plaintiff for more than 28 immovable properties in addition to moveable properties, which are the subject matter of the present suit.
3. It is submitted that defendants seek to change the title of paragraph 13 of the Written Statement from Properties in which the plaintiff has received Share to Properties in which mutation entry has been made in the name of the plaintiff. The second amendment proposed to be made is that under the heading of Properties in which the plaintiff has received share, it is mentioned that the agricultural land measuring 4 Kanal 11 Marla has been referred by the plaintiff in which he is claiming that he has not received any share. The defendant wants to amend the relevant portion of paragraph 13 of the Written Statement to shift the properties so mentioned in paragraph 13 of the Written Statement to be renumbered as paragraph 6 under the heading of Properties owned by Defendant No.3 Mr. Sunil Kumar.
4. It is submitted that the proposed amendments are only the typographical and do not impact the merits of the case and be permitted to be under taken in the Written Statement of Defendant No.1 to 5.
5. The application is contested by the plaintiff who has submitted that these are not typographical errors but amounts to retraction of admissions, essentially prompted by the application under Order XII Rule 6 CPC filed on behalf of the plaintiff. The defendants have admitted that in certain properties the plaintiff has received share, which they now want to change to claim that these are the properties in which the mutation has been carried out in the name of the plaintiff. The carrying out of mutation is very different from getting a share in the property and it changes the entire connotation of the ownership in respect of the property. Likewise, the agricultural land which was claimed to be of defendant No.3, is now being intended to be credited to the ownership of Shri Sunil Kumar. It is, therefore, argued that this application is liable to be dismissed.
6. Submissions heard.
7. Essentially, the first proposed amendment is merely to correct the title of Paragraph-13, wherein the head of the Paragraph was properties in which the plaintiff has received a share and the two properties in which the mutation entry has been made in the name of the plaintiff.
8. By the second amendment, the plaintiff wants to shift the agricultural land in which it was stated by the defendants that no share had been received by the plaintiff. The same may be renumbered sub-paragraph 6 for clarifying that the said properties were owned by the defendant No. 3, Mr. Sunil Kumar.
9. The proposed amendments do not change the nature of the Suit and are more clarificatory in nature. Accordingly, the proposed amendments are, therefore, allowed.
10. The amended Written Statement be filed within 30 days with an advance copy to opposite counsel.
I.A.4780/2021 (under Section 151 CPC on behalf of the plaintiff seeking Exemption)
11. Exemption allowed, subject to just exceptions.
12. The application is disposed of.
I.A. 4781/2021 (under Section 5 of the Limitation Act, 1963 read with Section 151 CPC for Condonation of Delay of 2 days in filing the Review Petition)
13. An application for condonation of delay of two days in filing the Review Petition No. 66/2021, has been filed on behalf of the plaintiff.
14. For the reasons stated in the application, the application is allowed and delay of 2 days in filing the Review Petition is condoned.
15. The application is accordingly disposed of.
REVIEW PETITION 66/2021 (under Order XLVII Rule 1 of CPC on behalf of the Plaintiff Seeking Review of the Order Dated 08.01.2021) & I.A.279/2021 (under Section 2(b) of the Contempt of Court Act, 1971 read with Section 151 CPC on behalf of plaintiff for Non Compliance of Directions):
16. A Review Petition has been filed on behalf of the plaintiff seeking review of the Order dated 08.01.2021, wherein this Court had observed that there was no direction given by the Court for filing of affidavit but the directions were only in respect of filing of the Bank Statements.
17. Learned counsel for the plaintiff submits that he is not pressing his Review Petition at this stage and may be permitted to be withdraw with liberty to move relevant application at the relevant time.
18. In view of the submissions made, the present Review Petition and the application I.A.279/2021 are permitted to be withdrawn with liberty as prayed for.
I.A. 3090/2024 (under Proviso to Order VIII Rule 1 read with Section 151 of CPC on behalf of defendant No.6 seeking Condonation of 2000 days of delay in filing the Written Statement)
19. An application has been filed on behalf of defendant No.6 for Condonation of Delay of 2000 days in filing the Written Statement.
20. It is submitted in the application that the defendant No.6 was served on 08.08.2018 with the copy of the summons of the present suit. The initial period of 30 days to file the Written Statement expired on 07.09.2018. The Written Statement has been filed on behalf of defendant No.6 on 25.01.2024 with a delay of 2000 days.
21. It is submitted that defendant No.6 was residing in Pune, Maharashtra when the present suit was filed and it was not within her knowledge in the initial years, although she had been given a rough idea about the Suit by the plaintiffs husband, though she was not aware of the underlying subject matter. The plaintiffs husband had also informed her that the court officials would visit her at her residence in Pune to provide her with some documents relating to the suit. However, when no Court official turned up, she presumed that the Suit had not been instituted by the plaintiff.
22. In May, 2018 the defendant No.6s brother Shri Sunil Kumar who is defendant No.3, had called defendant No.6 to Delhi to discuss about the suit. Her brother discussed about the captioned suit in the said meeting. Since, he was aware of her financial condition, he offered and assured her that he would hire a lawyer on her behalf and shall bear the cost of litigation. Because of her financial condition, it was not possible for defendant No.6 to come to Delhi on regular basis and hence, she gave her Power of Attorney and few other documents to her brother who assured her that he would help her in all possible ways to get a share in the fathers property. Defendant No.6 trusting her brother did not read or review the POA and other documents that she was made to sign.
23. On 27.10.2020, defendant No.6s husband died of heart attack and before that she was not able to follow up the suit from her brothers having trusted them to pursue the litigation on her behalf. However, when the going became tough for her after the demise of her husband and she found it difficult to support her children and herself, she tried to reach out her brothers who all are defendants in the present suit, but they never returned her call or tried to contact her. Fearing that her rightful share in the property would be jeopardized by her brothers, she started consulting some friends and relatives. One of her daughters friend who was an advocate, suggested that she should cancel the POA. Acting on the advice, she got it published in the newspapers of Delhi and Pathankot, Punjab that she has cancelled the POA that she had given to her brother.
24. She consulted a few lawyers and trusted their words, but to her utter dismay none of the lawyers between 2021 to 2023 consulted by her, represented her properly before this Court. The counsels appointed by defendant No.6 did not represent her effectively as neither they appeared nor did they file any pleadings on her behalf. The suit was being actively pursued in the past five years during the course for which several counsels were appointed by defendant No.6, but without proper representation.
25. It is submitted that because of the aforesaid reasons there is sufficient cause for condonation of delay. A prayer is, therefore, made the delay of 2000 days be condoned and the Written Statement of defendant No.6 be taken on record. Reliance has been placed on Rafiq vs. Munshilal (1981) 2 SCC 788, M/s Info Edge (India) Ltd. & Others vs. Mr. Sanjeev Goyal, CS(OS) NO.783/2006, Ram Nath Sao Alias Ram Nath Sahu vs. Gobardhan Sao (2002) 3 SCC 195.
26. Learned counsel for defendant No.6 has also placed reliance on Amarendra Dhari Singh vs. R.C. Nurserty Private Limited 2023 SCC OnLine Del. 84 and Bharat Kalra vs. Raj Kishan Chabra Civil Apeal No.3788 of 2022 decided by the Apex Court on 09.05.2022.
27. Learned counsel for the plaintiff submits that he has no objection if the application is allowed.
28. However, the application is seriously contested by defendant No.1 to 5 on the ground that defendant No.6 has been appearing since 2021 through her independent counsel and that the reasons given in the application for delay, is strongly opposed.
29. Submissions heard.
30. 2The first fundamental question which arises is whether the deadline of 120 (30 + 90) days as prescribed under Chapter VII Rule 4 of the Delhi High Court (Original Side) Rules, 2018, can be extended under any circumstances.
31. In the case of Ram Sarup Lugani v. Nirmal Lugani 276 (2021) DLT 681(DB) Division Bench of this Court, considered the inviolability of the hard stop period of 120 days prescribed in Chapter VII, Rule 4 of the Delhi High Court Rules, 2018, for filing of Written Statement. It held that the debate of the power of the Court to condone the delay in filing the Written Statement beyond 120 days in a non- commercial suit, has been settled and the Courts have no power to condone this delay beyond 120 days.
32. Learned counsel for the defendant No. 6 has relied upon the subsequent decision in Amarendra Dhari Singh vs. R.C. Nursery Private Limited 2023 SCC OnLine Del 84, wherein the Co-ordinate Bench of this Court has drawn a distinction in the language used in Rule 4 pertaining to filing of Written Statement and Rule 5 which deals with the filing of Replication in the given time frame and it was held in the last two lines of Rule 4 which do not find a mention in Rule 5 while prescribing the limitation for filing the replication which amply make it clear that the Court may exercise its discretion to extend the time for filing of Written Statement in non-commercial suits beyond 120 days, provided exceptionally sufficient case has been shown by the defendant No. 6.
33. The judgment of Amarendra Dhari Singh (supra) lays down two rules; firstly, Chapter VII Rule 4 of Delhi High Court (Original Side) Rules, 2018 limits the right to file the written statement upto 120 days; and secondly, the time period can be extended beyond 120 days if the defendant is able to show exceptionally sufficient case.
34. From the above judgements, it is evident that the time period for filing Written Statement cannot be extended beyond 120 days in the light of the principles laid down in Ram Lugani (supra). Further, even to grant the benefit of the second test as propounded in Amarendra Dhari Singh (supra) (though it is of the Co-ordinate Bench while Ram Lugani (supra) is of Division Bench) for condonation of delay of 2000 days, the defendant No. 6 has to show exceptionally sufficient cause.
35. As per the admissions of defendant No. 6 herself, she had been informed about the institution of the Suit in the year 2018 itself and since then, from time to time, she has been aware of the pendency of the present Suit. She has asserted that she was located at Pune, Maharashtra and found it difficult to travel to Delhi and had also relied upon her brothers who are the other defendants, who had assured that they would take care of her interest which they have failed to do so. Also as per own submissions, since 2020 after the demise of her husband, she has engaged various counsels.
36. Considering that she has been all throughout aware of the pendency of the Suit and even engaged the counsels from time to time who had represented her during the proceedings, it cannot be said that she has been able to show any sufficient cause for condonation of delay of 2000 days in filing the Written Statement.
37. Accordingly, the Written Statement not having been filed in the maximum period of 120 days from the service and there being no exceptionally sufficient ground shown for condonation of 2000 days delay in filing the Written Statement, the present application is dismissed.
I.A. 16498/2018 (under Order XII Rule 6 CPC)
38. Since the Application No. I.A. 7919/2019 under Order VI Rule 17 of CPC, 1908 for amendment of the Written Statement has been allowed, learned counsel for the plaintiff submits that the plaintiff does not wish to present the present application, at this stage.
39. Accordingly, the present application is disposed of as not pressed.
I.A. 1420/2019 (under Order VII Rule 11 read with Section 151 CPC on behalf of Defendant No.1), I.A. 1421/2019 (under Order VII Rule 11 read with Section 151 CPC on behalf of defendant No.3 and 4), I.A. 1422/2019 (under Order VII Rule 11 read with Section 151 CPC on behalf of Defendant No.2)
40. List for arguments on 23.07.2024.
CS(OS) 317/2018, I.A. 16094/2018, I.A. 16496/2018, I.A. 17781/2018, I.A. 4467/2019, I.A. 302/2021, I.A. 11439/2021, I.A. 4594/2022
41. List before the Joint Registrar for completion of pleadings on 18.03.2024.
NEENA BANSAL KRISHNA, J
FEBRUARY 20, 2024
va
CS(OS) 317/2018 Page 1 of 10