filing OF original will in a probate petition mandatory?

 

filing OF original will in a probate petition mandatory?

In the present write up, an interesting situation is sought to be deliberated i.e whether a probate petition filed by the petitioner can be entertained without annexing original will, along with the said petition? If so, what are the situation? Whether exceptions are carved out in this regard, and if so, 2what are such situations?  The ld Single judge of Delhi High Court, was pleased to have entertained probate petition filed along-with a certified copy of the registered Will on the petitioner's plea in the probate petition, that, the original Will was presently not available.

It is necessary, thus, to cull out the law, in detail, in this regard. In fact, the issue is settled by the hon’ble Division bench of Delhi High Court in a matter captioned as Sahil Marwah & Anr. vs Vikas Malhotra & ors bearing no. FAO(OS) 81/2023 in an appeal preferred by the aggrieved party. It was contended that filing of the original Will is mandatory along with the probate petition. According to the ld single judge that the said objection could be considered after the completion of the pleadings and evidence. The leave was thus granted to the petitioner to place on record verification or the affidavit of one of the attesting witnesses to the Will in accordance with Section 281 of the Indian Succession Act, 1925 ('Act of 1925').

BRIEF FACTS

As per the named executor (Respondent No. 1 in appeal), late 'Testatrix' had executed a Will in 2019 and that was duly registered with the Sub-Registrar. The original Will was not available with the petitioner (Respondent No. 1 in appeal) and therefore, the probate petition was filed along-with a certified copy of the registered Will. The petitioner had prayed for exemption from filing original Will, on the premise that the same was not presently not available and it was stated that, probably, that was lying at the last place of abode of the Testatrix. Reliance was placed on Section 237 and 276 of the Indian Succession Act 1925, to the effect, that a probate petition on the strength of the certified copy of a registered Will is maintainable, in case, the original Will is not traceable, and a probate could be granted, subject to the proof of the validity and the execution of the registered Will.

 Per contra according to the respondent in the said petition filing of the original Will was mandatory along-with the probate petition and non-filing of the original Will, shall disentitle the petitioner to maintain the probate petition on the basis of the certified copy of the registered Will.

                        The Findings of the Court

The ld Single judge has held that probate petition cannot be dismissed in limine on the ground of the non-filing of the original Will and the said objection may only be considered, after the parties have filed their responses to the probate petition and led evidence. The relevant para of the impugned order dated 14^th March, 2023 passed by the single judge reads as under: -

'19. In the present case, having considered the objections raised by the learned senior counsel for the respondent nos.4 and 5, in my opinion, the present petition would be maintainable and the objection raised by the learned senior counsel for the respondent nos.4 and 5 would necessarily have to be considered only once the parties have filed their response to the present petition, and if the Court so warrants and directs, led their respective evidence on the same. For the reasons stated in paragraph 5 of the present petition, it cannot be said that the petition is liable to be dismissed in limine on the ground of non-filing of the original Will.' (Emphasis Supplied).

The aforesaid order was impugned by the appellant in the appeal. The gravamen in the appeal is as to whether it could be construed that if the original Will is not filed with the probate petition, the 'presumption in law' is that it may have been destroyed by the Testatrix as contended by the respondent no.1 in appeal, and while referring to Section 70 of the Indian Succession Act of 1925, to support his plea. Moreover, another dimension raised by the respondent no.1, that, in the absence of the original Will, the attesting witness cannot verify the probate petition as per the requirement of Section 281 of the Act of 1925. The verification by the attesting witness, being quintessential requirement shall have to be, necessarily of the original Will and the certified copy of the registered Will cannot be relied upon by the attesting witness for the purpose of verification.

                        PROVISIONS & ITS INTERPLAY

As per Section 68 of the Indian Evidence Act, 1872 ('Act of 1872') a registered Will has no presumption attached to it and, therefore, it cannot be the basis of maintaining the application for probate and a certified copy of the Will obtained from the office of Sub- Registrar is not a substitute for the original Will.

In Durga Prashad Vs Debi Charan & Ors 1979 SCC(1)61 what emerges in the discussion is that whether a presumption could be raised that no original will was available, or that the Will was revoked by testatrix by destroying it before the death by the testatrix, if a probate petition was preferred without original will. Whether a certified copy of the registered Will shall be of no consequence and it cannot be a substitute for the filing of the original Will.

In Durga Prashad (Supra), the Supreme Court was pleased to uphold the probate and the order of the high court was se3t aside. The high court, while accepting the genuineness of the registered Will, non-suited the propounder only on the ground that the original Will was not found on the death of the testatrix despite every attempt to search for; and therefore, drew a presumption that the testatrix therein had revoked the Will by destroying it before her death and hence, the High Court had refused to grant probate.

Though, the broad consensus from the several judgments of various high court seems to suggest that even if the presumption is applied, it should be applied with very great caution. Jarman on Wills, while dwelling on this aspect of the matter observed as follows:

"If a will is traced into the testator's possession, and is not found at his death, the presumption is that he destroyed it for the purpose of revoking it; but the presumption may be rebutted.... Where the will makes a careful and detailed disposition of the testator's property, and nothing happens to make it probable that he wishes to revoke it, the presumption raised by the disappearance of the will may be rebutted by slight evidence, especially if it is shown that access to the box, or other place of deposit where the will was kept, could be obtained by persons whose interest it is to defeat the will."

Therefore, even if a presumption of the revocation of the will is drawn from the fact that it was not found on the death of the testatrix, it cannot be laid down as a general rule and can be rebutted even by slight evidence, particularly, where it is shown that some party had access to the place of deposit. The Privy Council has doubted whether this presumption is a rule of law at all.

It is manifest that in the first place, when the will is traced to the possession of the testator, but not found at the time of death, no presumption can be drawn as a rule of law, but in the facts and circumstances of a particular case such a presumption may be drawn and can be rebutted even by slight evidence.

The Delhi High Court in Sahil Marwah (Supra) has held as under:

17.3. In view of the aforesaid exposition of law by the Supreme Court, the loss/unavailability of the original registered Will, thus, does not ipso facto attract the presumption of revocation by destruction. The act of revocation of the Will by the Testator/Testatrix is strictly governed by Section 70 of the Act of 1925. The operation of the said provision is attracted to a factual matrix where the execution of the Will by the Testator/Testatrix is established and the objector raises a plea that the Will after its execution was revoked by the Testator/Testatrix by one of the modes set out in the said provision. However, to raise the plea of revocation, the objector will have to plead this defence specifically by setting out the particulars of the mode of revocation and then prove the same in accordance with the law”.

17.4. In this regard, the Supreme Court also examined the strict scope of Section 70 of the Act of 1925 and categorically held that the 'onus to prove' that the Will has been revoked lies on the objector who relies on the revocation. The relevant para of Durga Prashad (Supra) (supra) reads as under: -

"25. Against this background we shall now deal with the authorities of the Indian High Courts. But before we do that it may be necessary to extract Section of the Act:

"No unprivileged will or codicil, nor any part thereof shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."

According to the Delhi High Court in Sahil Marwah (Supra)  a bare perusal of the above section would clearly reveal two important features:

(i) The section has been couched in negative terms having a mandatory content.

(ii) The section provides the mode and the very circumstances under which an intention to revoke can be established.

Therefore, the onus is on the objector who relies on the revocation to prove that the will had been revoked after it has been proved to have been duly executed. Under Sectio0n 70 of the Act, the will can be revoked inter-alia, by burning, tearing or otherwise destroying and unless any of the circumstances has been proved by the objector by cogent evidence, the question of the revocation of the will, naturally will not arise.

It was thus held in Sahil Marwah (Supra) as under:

17.5. Thus, if the Appellants herein are desirous of raising the plea of revocation of the registered Will dated 2^nd August, 2019, the onus of proving revocation will have to be discharged by the Appellants. Section 70 of the Act of 1925 provides the mode and circumstances under which an intention to revoke can be established. The Appellants herein will have to thus, plead and thereafter, lead cogent evidence to prove the mode and the circumstances to establish revocation of the Will in question by the Testatrix, in accordance with the said provision. In the absence of a plea and particulars of the revocation in the objections, the question/issue of revocation will not otherwise arise for adjudication in these proceedings.

17.6. The Supreme Court in Durga Prashad (Supra) summarised the legal position on the consequence of unavailability of the original Will vis-à-vis grant of probate, at para 31 of the said judgment, which reads as under: -

"31. The correct legal position may therefore be stated as follows:

1) That where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people.

2) That the presumption is a rebuttable one and can be rebutted by the slightest possible evidence direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted.

3) That in view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the banks or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully.

4) That where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn.

5) That in view of the express provision of Section 70 of the Act the onus lies on the objector to prove the various circumstances viz. marriage, burning, tearing or destruction of the will.

6) When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by interested persons."

Therefore, if the aforesaid legal principle is applied to the Sahil Marwah (Supra) as per the division bench of Delhi High Court, what is imperative is that facts are to be pleaded essential for alleging revocation of the Will in question, in terms of Section 70 of the Act of 1925 in the objections and the onus to prove the said facts will lie on the objectors/Appellants.

Section 237 of the Indian Succession Act may be reproduced for ready reference:

237. Probate of copy or draft of lost will.--When a will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced.

The high court has noted that the words 'since the testator's death' qualify only the verb 'mislaid'. There has not been reference to the word 'lost,' otherwise, what would happen if the Will has been lost before the testator's death? The loss of the Will would not operate as revocation. To establish revocation, one may have to show destruction by the testator. Loss is no destruction. Then the words 'since the testator's death' have no reference to the succeeding clause of the sentence. The Will could not have been destroyed by any act of the testator since his death. Thus, the second clause is independent by itself. Then the words in this clause "and not by any act of the testator" have no special meaning. For, if the Will has been destroyed by any act of the testator, it has been revoked and it is a dead thing. In the succeeding section the words used are "when the Will has been lost or destroyed, etc., etc". The former section refers to cases when a copy of the Will is available and the latter when no copy is available. This is the only difference. In neither of these sections any rule of law has been laid down and none tending to defeat the applicant's suit. Revocation must be proved by the party who sets it up. The facts proved and admitted preclude a presumption in favour of the objector and there is no evidence that the Will has been actually destroyed.

In the context as set out above, Section 237 of the Indian Succession Act of 1925 what is of significance is that where the original of the Will is untraceable, in addition to proving the due execution of the Will and validity of the Will to the satisfaction of the Court, the propounder will have to prove the circumstances set out in Section 237 of the Act of 1925 for relying upon the copy of the Will. The circumstances to be proved by propounder for permitting reliance on a copy of the Will are set out in Section 237 of the Act of 1925 and the same have to be proved to the satisfaction of the Probate Court.

                Specific Plea Necessary

In the absence of the specific plea of revocation, with particulars thereto, by the objector, the unavailability of the original Will entitles the propounder/executor to plead in the probate petition loss of the original Will as contemplated under Section 237 of the Act of 1925 and satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. Moreover, the permissibility of proving and relying upon the certified copy of the registered Will, when the original Will is lost was considered and upheld by the Supreme Court in Dhanpat Vs Sheo Ram Civil Appeal No. 1960 of 2020 =(2020) 16 SCC 209. In the facts of that case, the execution of the registered Will was not disputed by the plaintiff therein; the defendants pleaded that the original Will was lost and, therefore, produced the certified copy of the registered Will and proved its validity in accordance with law. The relevant paras of the aforesaid judgment read as under:

14. In support of the findings recorded by the High Court, Mr Manoj Swarup, learned Senior Counsel for the respondent-plaintiff argued that in terms of Section 69 of the Succession Act, 1925, a will is required to be attested by two witnesses who have seen the testator and in which the testator and two of the attesting witnesses sign in presence of each other. It is argued that Maha Singh, DW 3 had not deposed that all three were present at the same time, therefore, the finding of the High Court has to be read in that context, when the will was found to be surrounded by suspicious circumstances, as the second attesting witness was not examined. It is also argued that the original will has not been produced and no application for leading secondary evidence was filed. Therefore, the secondary evidence could not be led by the defendant to prove the execution of the will”.

In Sahil Marwah (Supra) thus, it is observed that:

17.11. In our considered opinion the plea of non-execution of Will and revocation of Will cannot stand together; as the act of revocation by a Testator/Testatrix pre-supposes execution of the Will by the said Testator/Testatrix. In the facts of the present case the Appellants are raising the specific plea of non-execution of the Will by Testatrix and, therefore, it is precluded from raising the plea of revocation. The Appellants are at liberty to challenge the validity of the Will on the grounds of non-fulfilment of the essential conditions mentioned in Section 59 and 63 of the Act of 1925, but they are precluded from raising the ground of revocation under Section 70 of the Act of 1925, due to their principal stand of non-execution of the Will in the first instance. The objector cannot be permitted to take such inconsistent stands, which are mutually destructive as they lack bona fide and interfere in the adjudicatory process”.

It is further recorded in Sahil Marwah (Supra) that:

“22. There is no requirement that an application is required to be filed in terms of Section 65 (c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration, only because an application for permission to lead secondary evidence was not filed”.

                    PRE-REQUISITES OF REGISTRATION

In case of registration of a document including a Will, once, the document is admitted to registration, duplicate copy whereof is pasted in the books maintained by the Sub-Registrar and the said duplicate copy mandatorily bears the signatures in original of the executant, the witnesses, the Registering Officer and presentor as per Section 52 of the Registration Act of 1908 and Rule 39 of The Delhi Registration Rules, 1976. The said rules may be perused as under:

39. Pasting of documents into Book.- When a document has been admitted to registration and the necessary endorsements have been recorded, it shall be handed over to the duplicating clerk to copy out the endorsements on the duplicates and the Registering Officer shall see that no unnecessary delays occur, and that the documents are pasted in the books in the order of their admission. Thereafter, the several endorsements made in the office (including the certificate of registration prescribed by Section 60 of the Act), the several signatures of the Registering Officer, presentor, executants and witnesses examined shall all be copied on the duplicate at proper places.

It is held that the duplicate copy so pasted in the books before the Sub-Registrar is, therefore, executed like a mirror copy of the original Will presented for registration. The duplicate copy registered with the Sub-Registrar is in effect a mirror copy of the original document and has the same effect in law as the original document in its operation unless its revocation is proved by the objector. Further, as per Section 57 (2) of the Act of 1908 and Rule 18 of the 1976 Registration Rules copies of the registered Will are provided to any person after the death of its executant and the said copy is statutorily admissible for proving the contents under Section 57 (5) of the Act of 1908. The admissibility of certified copy of the registered Will is, thus, statutorily recognised and, therefore, the contention of the Appellants that a certified copy of the registered Will cannot be relied upon for seeking probate is incorrect. As noted above, the executor/applicant's obligation to prove the circumstances of loss of the original Will under Section 237 of the Act of 1925 remains, however, the loss of the original Will does not disentitle him/her from applying for probate. The high- probative value of a certified copy of the registered Will in proving the initial existence of the original Will is inarguable and, therefore the underlying probate petition is maintainable.

However, in case, the proceedings were at the initial stage, and when the Court directed the propounder to file the original Will as it was admittedly readily available and in the custody of the propounder; and the Court found no just grounds for exempting the filing of the original Will as held in the following judgments:

(i) 1979 SCC OnLine P&H 503,

(ii) Delhi Sikh Gurudwara Committee Vs Manmeet Singh & Anr 2017 SCC OnLine Del 9049; 

(iii) Ramesh Dutt Salwan Vs State & Ors 1988 RLR 387; 

(iv) Ashwani Kumar Aggarwal Vs B.K Mittal; (2014) 211 DLT 524; 

(v) Ashok Kothari Vs Dipti Bavishi AIR 2007 Cal 21.

 

It may be noted that so far as the aforesaid judgments in the preceding paragraph is concerned, those judgments do not substantiate the plea raised by the Appellants in Sahil Marwah (Supra) that, if the original Will is not filed with the probate petition, the same cannot be entertained at the threshold or that no probate can be granted on the certified copy of Will.

                                ---------

                        Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

Commercial courts Act-Time limit for FILING written statement & REPLICATION

 

CommerciAl courts Act-Time limit for FILING written statement & REPLICATION

The pivotal object of enactment of Commercial Courts Act 2015 (CCA) and its amendment in 2018 is to ensure that the commercial suits are decided expeditiously and whereas, the procedure as laid down under the Act is quite stringent, still, as the focus is also on avoiding delay in adjudication of the lis, hence the enactment is made to cater to that object. The causes of the bottlenecks in legal proceedings, as observed over the years includes, primarily, enormous delay in filing written statement and replication, thereby, at the stage of completion of pleading itself, inordinate delay used to be caused due to one or other reasons pleaded. The CCA has endeavoured to address such a situation and in a great deal the roadblocks are being cleared.

As discussed, in the ordinary suits, the main reason of delay used to be in filing written statement to the suit and though amendment in Code of Civil Procedure in the year 2002 had prescribed that for filing written statement, the maximum period of 120 days from the date of service shall only be available, however, vide several judicial pronouncements it was held that 120 days period could not be treated as mandatory and the courts had the discretion to condone the delay beyond 120 days. The situation as aforesaid; thus, remained unchanged for all practical purposes. The CCA has now stipulated that not only the maximum period for filing written statement shall be 120 days and if not filed, the right to file written statement shall be closed. The provision is made mandatory. In fact, as per CCA taking recourse to Order VIII Rule 10 of Code of Civil Procedure, the judgment and decree shall also be pronounced forthwith, in the event of non- filing of written statement within 120 days from the date of service of summons. Yet another dimension is that even for filing replication to the written statement, the maximum prescribed period is 45 days and the replication to written statement cannot be filed thereafter (Of course, the same is as per Delhi High Court rules only as applicable to the original jurisdiction of Delhi High Court). In this manner, the very reason of delay instrumental in prohibiting progress in a suit has now been addressed. It is also worth mentioning that the CCA has also provided for filing of statement of truth along with plaint and written statement, thereby, curtailing the prospect of delay in procedural logjam. In order to obviate that, the affidavit of admission and denials as per the prescribed performa is mandated to be filed along with the plaint and written statement as the case may be. Not only this, parties to the lis has to state on oath, that apart from the documents so filed along with plaint and written statement as the case may be, no other documents are in their power and possession and that the suit or written statement is based on the pleadings and documents already on record and it is envisaged in CCA that open ended procedural regime should no longer be available as that is prone to cause delay. The suit and defence can thus be furthered accordingly, as per the case and defence as respectively set out. In order to buttress it further, there has also been stipulation that after framing of issues, no documents could be filed by the parties.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 came into effect on 23.10.2015 and certain amendments in the Code of Civil Procedure were made in a wake of the Act. The amendments were made inter alia in Order V Rule 1, sub-rule (1) the following were substituted:

Provided further that where the defendant fails to file written statement within the said period of thirty days , he shall be allowed to file the written statement on such other days, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record”.

Similarly, in Order VIII Rule 1, a new provision stands substituted as under:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing  and on payment of such costs as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons the defendant shall forfeit the right to file the written statement and the Court shall not allow the record statement to be taken on record.

Pertinently, this was further reemphasized by inserting yet another proviso in Order VIII Rule 10 of Code of Civil Procedure, which reads as under:  

Procedure when party fails to present written statement called by the Court: When any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up.

Provided further that no court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.

Bare perusal of the aforesaid provisions shall demonstrate that ordinarily a written statement should be filed within a period of Thirty (30) days and extension up to a total period of 120 days could, only, be granted if sufficient causes are shown by the defendant and if the court records its satisfaction and that too with such terms as the Court imposes, Significantly, after a total period of 120 days from the date of service of summons the defendant shall forfeit the right to file written statement and the written statement cannot be taken on record thereafter. The provision of Order VIII Rule 10 of CPC again buttress that, while adding that, the Court has no further power to extend the time beyond the period of 120 days.  

In order to appreciate the ratio of SCG Contract India Pvt Ltd Vs KS Chamankar Infrastructure Pvt Ltd AIR 2019 Supreme Court 2691, it is imperative to cull out the facts in nutshell, in the context of filing of written statement and as per the table below:

14.07.2017	The summons of suit filed before the high court was served on the defendant
13.10.2017	Despite expiry of 120 days from the date of service of summons, no written statement filed.
13.10.2017	Within the stipulated period, it appears Application under Order VII Rule 11 of CPC was filed without filing written statement.
05.12.2017	The application under Order VII Rule 11 of CPC was dismissed. The written statement filed by the defendant was taken on record, however, subject to the costs of Rs 25,000/-The time of filing written statement was extended till 15th December 2017, failing which right to file written statement was to be forfeited.
15.12.2017	Written statement was filed.
06.08.2018	Another application was filed by the defendant on the premise, that in view of recent amendments in the Code of Civil Procedure and owing to non- adherence of those provisions, the written statement was not as yet taken on record and as 120 days had already expired and the high court had permitted time of filing it till 15.12.2017 only.
24.09.2018	It was held by another single judge of the high court that as the last date beyond 120 days was granted to the defendant i.e the written statement was permitted to be filed till 15.12.2017 and it was filed by that date, albeit without adhering to the amended provisions of CPC. The order was passed in view of earlier order dated 05.12.2017.

 

The Special Leave Petition was preferred against both the orders impugned before the Supreme Court i.e order dated 05.12.2017 and 24.09.2018. It was contended that the amendments in CPC clearly entails consequences of non- filing of written statement within stipulated time and that the provisions of Order VIII Rule 1 of CPC being mandatory, the written statement cannot be taken on record, if it is filed beyond 120 days from the date of service of summons. It was further contended that the impugned order against the statutory provision cannot be construed as res judicata. 

The aforesaid provisions as referred to hereinabove, if weighed with what the High Court has held, then, it appears that the same is contrary to the ratio as laid down in a matter reported as SCG Contract India Pvt Ltd (Supra). The Supreme Court has held that beyond a period of 120 days, written statement cannot be filed in a commercial suits. The following judgments were referred to and relied upon and distinguished in its context by the Supreme Court:

(i) State of Bihar & Ors Vs Bihar Rajya Bhumi Vikas Bank Samiti (2018) 9 SCC 472;

(ii) Canara Bank Vs NG Subharya Setty & Anr AIR 2018 SC 3395;

(iii) Bhanu Kumar Jain Vs Archana Kumar & Anr (2005) 1 SCC 787;

(iv) Shaikh Salim Haji Abdul Khayumsab Vs Kumar & Ors (2006) 1 SCC 46;

(v) KK Roja Vs U.S Rayudu and Anr (2016) 14 SCC 275;

(vi) Kailash vs Nankhu (2005) 4 SCC 480

(vii) Salem Advocates Bar Association Vs Union of India (2005) 6 SCC 344;

(viii) State Vs N.S Gnaneswran (2013) 3 SCC 594;

(ix) Manohar Lal Chopra Vs Rai Bahadur Rao Raja Seth Hiralal (1962) Suppl 1 SCR 450;

(x)Oku tech Private Ltd Vs Sangeet Agarwal & Ors CS (OS) 3390/2015 (Delhi High Court);

(xi) Maja Cosmetics Vs Oasis Commercial Pvt Ltd 2018 SCC Online Del 6698

In State of Bihar (Supra) & Canara Bank (Supra) it is held that the amendments in CPC clearly entails consequences of non- filing of written statement within stipulated time and that the provisions of Order VIII Rule 1 of CPC cannot be construed as directory any longer.

It is held as under by the Supreme Court in Canara Bank Vs NG Subharya Setty & Anr AIR 2018 SC 3395:

“An issue of law which arises between the same parties in a subsequent suit or proceeding is no re judicata, if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reasons that in such cases, the right of the parties are not the only matter for consideration (as in the case of erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to issues of law that raises jurisdictional questions. We have seen how, in Natraj Studio AIR 1981 SC 537 (Supra), it is the public policy of the statutory prohibition contained in Section 28 of Bombay Rent Act that has to be given effect to. Likewise, the public policy contained in the statutory prohibitions, which need not necessarily go to jurisdiction of a Court, must equally be given effect to. Likewise, the public policy contained in other statutory prohibitions, which need not necessarily go to jurisdiction of a Court, must equally be given effect to, as otherwise special principles of law are fastened upon parties when special consideration relating to public policy mandate that this cannot be done”.

In Bhanu Kumar Jain (Supra) and Shaikh Salim (Supra) relied by the respondent while contending that there are vital differences between principles of res judicata in a subsequent suit and res judicata in two different stages of the same proceeding. It was contended that the order dated 05.12.2017 had attained finality and could only be challenged after pronouncement of judgment and decree and therefore, the order dated 24.09.2018 is correct. The order dated 05.12.2017 has already been acted upon and that cannot be re-opened at this stage. Reliance was placed on R.K Roja (Supra) to contend that as an application under Order VII Rule 11 of the Code of Civil Procedure has been filed and that has to be answered before proceeding for a trial and therefore written statement could not have been filed in this backdrop.

The Supreme Court has categorically distinguished the judgment rendered in Bihar Vikas Bank Samiti (Supra) in as much as a question was raised, then, as to whether section 34(5) of the Arbitration & Conciliation Act 1996, inserted by the amendment Act 3 of 2016 is mandatory or directory. In the said judgment, the Supreme Court had referred to Kailash Vs Nankhu (Supra) while also reiterating the text of Order VIII Rule 1 as it stood, during and prior to the enactment of CCA 2015. Similarly, in Salem Advocate Bar Association (Supra) it was held that the mere expression “shall” in Order VIII Rule 1would not make the provision mandatory. The Supreme Court, then also referred to N. Gnaneshwaran (Supra) in which section 154(2) of Cr.PC was held to be directory in as much as no consequence was provided if the section was breached. It was held as under:

23. It will be seen from this provision that, unlike section 34(5) and (6), if am award is made beyond the stipulated or extended period contained in the section, the consequence of the mandate of arbitrator being terminated is extremely provided. This provision is in stark contrast with section 34(5) and (6) where, as has been stated hereinabove, if the period for deciding the application under section 34 has elapsed, no consequence is provided. This is one more indicator that the same Amendment Act, when it provided time periods in different situation, did so intending different consequences.”   

Taking this further, the Supreme Court in SCG Contract India Pvt Ltd (Supra) has observed that several high courts while dealing with Order VIII Rule 1 of Code of Civil Procedure has consistently held that, as consequences of non- filing of written statement has clearly been elucidated, the filing of written statement within the outer limit of 120 days from the date of service of summons shall have to held as mandatory (Ref: Oku Tech Private Ltd (Supra) and Maja Cosmetics (Supra).  

The Supreme Court in SCG Contract India Pvt Ltd (Supra) has further held that the aforesaid views in Oku tech (Supra) and Maja Cosmetics (Supra) are correct view. It will make no difference, even if it is assumed that earlier order dated 05.12.2017 was a final order. It is held that res judicata cannot stand in the way of an erroneous interpretation of a statutory prohibition. What has thus clearly emerged is that what was not provided for in the statute and in fact when filing of written statement beyond a period of 120 days from the date of service of summons being explicitly prohibited, a wrong order passed for taking written statement in record, despite the prohibition cannot be taken as res judicata. Moreover, reliance placed on Bhanu Kumar Jain (Supra) and Shaikh Salim (Supra) relates to pre-amendment position and hence on this premise also the same shall be of no relevance. The Supreme Court, while dealing with R.K Roja (Supra) has held that it cannot be claimed that application under Order VII Rule 11 of Code of Civil Procedure shall have to be decided first and thereafter, if required, written statement could be filed. It was so, in as much as the Supreme Court in R.K Roja (Supra) itself had observed in para 6 as under:

“However, we may hasten to add that the liberty to file an application for rejection under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement.”

The respondent had also contended that nothing precludes the Court to invoke inherent powers under section 151 of the Code of Civil Procedure, and it was argued that procedural provisions as per the amendment in CCA shall not come in the way of inherent power, else, unjust consequence may follow.

However, the Supreme Court had rejected the contentions by referring to its own judgment reported as Manohar Lal Chopra (Supra). The relevant portion of the said judgment is as under:

“The suit at Indore which has been instituted later, could be stayed in view of Section 10 of the Code. The provisions of that section are clear, definite and mandatory. A court in which a subsequent suit has been filed is prohibited from proceeding with the trial of the suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent power under Section 151 is not justified”.

Therefore, it was held that clear, definite and mandatory provisions of Order V read with Order VII Rule 1 and 10 cannot be circumvented by recourse to the inherent power under Section 151 to do the opposite of what is stated therein.

The aforesaid discussion, clearly reflects that beyond 120 days period from the date of receiving summons of the suit, the written statement cannot be filed and the judgment and decree could be pronounced forthwith. Yet another aspect is required to be further deliberated i.e even the replication to the written statement cannot be filed beyond 45 days of receiving written statement as per original side rules of Delhi High Court. That said, however, the discussion based on judicial precedents shall have to be dealt with and the same is being done hereinafter.  

       REPLICATION BEYOND 45 days: not permittEd

In Ram Sarup Lugani Vs Nirmal Lugani & Ors (2021) 276 DLT 681(DB) clearly stipulates that in a comemrcail suit , replication to the written statement cannot be field beyond 30 days from the date of se4rvcie of written statement and at the most Fifteen (15) days extension can be granted, but not thereafter. Special Leave Petition (C) No.15142/2020 field against the Ram Sarup Lugani (Supra) appears to have been dismissed by the Supreme Court on 28^th June 2021.

The Delhi High Court (Original Side) Rules, 2018, which are set out below in the context shall further reinforce the situation:

Rule 4. Extension of time for filing written statement.--If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days, it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter. For such extension of time, the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid/ deposited. In case the defendant fails to file the affidavit of admission/ denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed to be admitted. In case, no written statement is filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement.

Rule 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.

Rule 6. Affidavit of admission/denial of documents with replication.-Alongwith the replication, the plaintiff shall also file an affidavit of admission/ denial of documents filed by the defendant, without which the replication shall not be taken on record.

Rule 7.  Affidavit of admission/ denial of documents, even if `replication not filed.- Irrespective of whether the plaintiff files the replication or not, the plaintiff shall be bound to file affidavit of admission/ denial of documents filed by the defendant alongwith the written statement within the time permissible for filing replication. In case the plaintiff fails to file the said affidavit, the documents filed by the defendant shall be deemed to be admitted. The Court or the Registrar, as the case be, shall exhibit documents admitted by the parties."

In Louis Dreyfus Company India Pvt Ltd vs Nutrilite Agro Products Pvt Ltd, CS(COMM) 538/2020 decided on 10^th  January, 2024, it s held as under:

7. In terms of the Delhi High Court (Original Side) Rules, 2018, specific timelines have been fixed for filing of written statements and replication as contained in Rules 4 & 5 respectively. The decision in Ram Sarup Lugani (supra) leaves no manner of doubt that the maximum time limit available for filing of replication is 45 days. The relevant portion of the said judgment is set out below:

"21. A conspectus of the decisions referred to above leaves no manner of doubt that where ever the phrase "but not thereafter" has been used in a provision for setting a deadline, the intention of the legislature is to treat the same as a pre-emptory provision. Thus, if Rule 15 of the DHC Rules mandates filing of a replication within a period of 30 days reckoned from the date of receipt of the written statement, with an additional period of 15 days provided and that too only if the court is satisfied that the plaintiff has been able to demonstrate that it was prevented to do so by sufficient cause or for exceptional and unavoidable reasons, can the time for filing the replication be extended for a further period not exceeding 15 days in any event, with costs imposed on the plaintiff. The critical phrase "but not thereafter used in Rule 15 must be understood to mean that even the court cannot extend the period for filing the replication beyond the outer limit of 45 days provided in the DHC Rules. Upon expiry of the said period, the plaintiff's right to file the replication would stand extinguished. Any other meaning sought to be bestowed on the above provision, would make the words "but not thereafter", inconsequential.

22. The next contention of Mr. Mehta that the words "the Registrar shall forthwith place the matter for appropriate orders before the court" used in Rule 5 of the DHC Rules indicates that the court would still have the power to accept a replication filed beyond a period of 45 days, is also untenable. The Supreme Court has emphasized that the answer to the problem as to whether a statutory provision is mandatory or is directory in nature, lies in the intention of the law maker, as expressed in the law itself. The words "replication, if any, shall be filed within 30 days of the receipt of the written statement and further, the words "further period not exceeding 15 days, but not thereafter used in Rule 5 will lose its entire meaning if we accept the submission made on behalf of the appellants that even if the timeline for filing the replication cannot be extended by the Registrar, there is no such embargo placed on the court.

23. The court must start with the assumption that every word used in a statute, has been well thought out and inserted with a specific purpose and ordinarily, the court must not deviate from what is expressly stated therein. The period granted for filing the replication under Rule 15 of the DHC Rules is only 30 days and on expiry of 30 days, the court can only condone a delay which does not exceed 15 days over and above 30 days and that too on the condition that the plaintiff is able to offer adequate and sufficient reasons explaining as to why the replication could not be filed within 30 days. As observed earlier, since the terms 'Court' and 'Registrar' have been defined in the DHC Rules, Rule 5 requires that the court alone can extend the time to file the replication beyond the period of 30 days from the date of receipt of the written statement. Even the discretion vested in the court for granting extension of time is hedged with conditions and the outer limit prescribed is 15 days. If the replication is not filed within the extended time granted, the Registrar is required to place the matter back before the court for closing the right of the plaintiff to file the replication."

Delay in filing admission/denial affidavit by the defendaNt

The CCA is in code in itself and therefore it contains certain modalities for strict compliance and failure in adhering to such prescription leads to stern measure. The judicial precedents are also evolving in the context. An interesting situation emerged in a matter captioned as Mayank Gupta Vs M/s Aditya Birla Fashion and Retail Ltd in CM (M) 178/2023 wherein the issue before the Delhi High Court was as under:

The application u/s 5 of Limitation Act seeking condonation of delay in filing affidavit of admission/ denial was dismissed by the District Commercial Court was dismissed and hence petition under article 227 of the Constitution of India was preferred before the hon’ble Dehi High Court.

The facts leading to the petition in brief are summarised as under:

(i) Summons of the suit was served on the petitioner/defendant on 01.12.2021.

(ii) The written statement along with statement of truth was filed on 21.02.2022.

(iii) Application under Order XIII A CPC was also filed by the respondent/plaintiff seeking summary judgment on a premise that in the absence of affidavit of admission/denial on behalf of defendant, the plaintiff shall be entitled to judgment and decree, since, the plaint and documents shall be deemed to have been admitted and the process of trial shall not be necessary.

(iii) The admission/denial affidavit was filed on 31.08.2021.

(iv) As per the petitioner, after filing of application under Order XIII A of CPC, the mistake of not filing admission/denial affidavit along with the written statement was realised by the petitioner/defendant and hence it was filed.

(v) According to the petitioner being a procedural aspect, mere non filing of admission/denial affidavit should not be construed against the petitioner/defendant.

RELIANCE by the Petitioner

To buttress its contentions the petitioner had placed reliance on a matter Cosco International Pvt Ltd Vs Jagat Singh Dagar CS (Comm) 1052/2018- rendered by Delhi High Court on 16.04.2022 wherein registry of the High Court was directed the registry of the High Court to take affidavit of admission/denial on record. Therefore, the impugned order should be set aside and the trial court ought to be directed to take on record affidavit of admission/denial filed by the petitioner while allowing the application for condonation of delay in filing the aforesaid application.

                    Contention of the RespondeNt

(i) The admission /denial affidavit was filed belatedly and there is no prescription in law to file it beyond the statutory period of 120 days when the written statement should mandatorily be accompanied by affidavit of admission/denial.

(ii) The petitioner had already preferred application under Order XIII A of CPC for seeking summary judgment.

(iii) The lacuna of non- filing of admission/denial affidavit in time cannot be filled subsequently and that too when the petitioner/defendant comes to know of filing of the application by the plaintiff for seeking summary judgment. Realising.

(iv) The alleged realization of mistake of non- filing of admission/denial affidavit shall not aid the petitioner/defendant in as much as the rule entailing filing of written statement also include the obligation of filing admission/denial affidavit.

(v) Ignorance of procedure of law is no excuse.

(vi) The order of trial court whereby the application for seeking condonation of delay in filing admission/denial affidavit was rightly dismissed.

                             RELAINCE BY THE RESPONDENT

(i) M/s Ok Play Pvt India Ltd Vs M/s A.P Distributors and Anr- CM (M) No. 346/2020-Delhi High Court

(ii M/s Unileen Beheer Vs Balaji Action Buildwell 2019 SCC OnLine Del 8498 -Delhi High Court

It was held that no doubt written statement and statement of truth was filed by the petitioner/respondent within stipulated time as prescribed under law. However, admission/denial affidavit was not field along with written statement which is ex facie contrary to the mandate of Order 11 Rule 1 of CCA 2015 as it is categorially contained therein that the timelines prescribed by the amended provisions of Code of Civil Procedure as also the CCA 2015 are strict and mandatory and hence no leverage can be accorded to any defaulting party.

In Mayank Gupta (Supra) the Delhi High Court has differed from the judgment in Cosco (Supra) of the co-ordinate bench of Delhi High Court, because, the judgment in Cosco (Supra) was rendered in the context of the “original side” jurisdiction of Delhi High Court and the process of filing of documents in the registry of Delhi high court in original side is not available to the District Courts. In the district courts it is pertinent to mention that the time period provided under the rules of 30 days  from the date of being made aware of the defects of filing of the pleadings that the party has entitlement to file within the said time. Thus, only when it was found that the affidavit of admission/denial having been filed within the extended period of 30 days, that the co-ordinate bench of Delhi High Court had permitted/directed that the affidavit of admission/denial documents accompanying the written statement. Therefore, judgment in Cosco (Supra) was found to be not applicable in Mayank Gupta (Supra). In fact, in Mayank Gupta (Supra) also, there is no such entitlement, since, the petitioner/defendant waited from 21.02.2022 when he became aware about requirement of filing admission/denial affidavit along with written statement, still waited till 06.07.2022. Admittedly, application for condonation of delay was filed on 31.08.2022, though, in any case, knowledge of the said requirement was gained on 06.07.2022, when the respondent/plaintiff had filed its application under Order XIII A of CPC for seeking summary judgment. The ld trial court while rejecting the application for seeking condonation of delay had placed reliance on M/s Okay Play (Supra) and Unilin Beher B.V (Supra). Since, admission/denial affidavit was not filed within the outer limit of 120 days, hence, the delay could not have been condoned, rules being mandatory and does not admit of any exception.

The petition is Mayank Gupta (supra) was accordingly dismissed by Delhi High Court.

The discussion based on the aforesaid judgments based on the Commercial Courts Amendment of 2018, leading to a categorical conclusion as regards the filing of written statement, admission denial affidavit and replication within the stipulation time does not admit of any exception as the words couched about in the respective rules as set out above leaves no room of doubt that the specific time line in commercial suit has to be adhered to, without iota of doubt.

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                             Anil K Khaware

                             Founder & Senior Associate

                             Societylawandjustice.com