Chapter VII of the Delhi High Court (Original Side Rules), 2018, is not applicable to testamentary petitions and the Court has the power to condone the delay in filing of objections beyond 120 days from the date of service of the amended petition.

TEST.CAS. 17/2023 Page 1 of 9

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 04.12.2023

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TEST.CAS. 17/2023, I.A. 4359/2023 (interim relief) & I.A.

4360/2023 (restitution)

VIKAS MALHOTRA

..... Petitioner

Through:

Mr. Sanjeev Mahajan with Mr.

Rishabh

Varshney,

Mr.

S.S.Chadha,

Advs.

alongwith petitioner in person,

versus

THE STATE OF NCT OF DELHI & ORS.

..... Respondents

Through:

Mr. Kanak Bose, Adv. for R-2.

Mr. Karan Nagrath, Ms. Nupur Kumar, Mr. Ambuj

Tiwari, Ms. Muskal Nagpal, Mr. Arjun Nagrath,

Advs. for R-3.

Mr. Y.P.Narula, Sr. Adv. with Mr. Abhey Narula,

Adv. for R-4 & 5.

Mr. Ujas Kumar, Adv. for R-7.

Ms. Damini Chawla, Adv. for R-8 & 9.

CORAM:

HON'BLE MS. JUSTICE REKHA PALLI

REKHA PALLI, J (ORAL)

I.A. 23155/2023

1.

This is an application filed by the respondent nos. 4 & 5 seeking

condonation of 85 days delay in filing objections by way of a reply to the

probate petition. As the objections have been filed after 85 days of the

expiry of the six weeks’ time granted by this Court vide its order dated

06.07.2023, the present application seeking condonation of the aforesaid

period of 85 days has been filed.

2.

In support of the application, Mr. Y.P.Narula, learned senior counsel

Digitally Signed

By:GARIMA MADAN

Signing Date:05.12.2023

16:41:06

Signature Not Verified

TEST.CAS. 17/2023 Page 2 of 9

for the applicant submits that the reply could not be filed within the time

granted by this Court as the respondent no.5, who is the mother of

respondent no.4 was not in a position to give appropriate instructions on

account of her ill-health. Furthermore, taking into account that the parties

have been involved in a previous litigation for many years, complete details

of the past proceedings were necessary to file an effective response, which

the respondent no.5 was not able to give either to respondent no.4 or to their

counsel for drafting of the objections to the petition.

3.

The application is vehemently opposed by the learned counsel for the

petitioner as also for the respondent nos.2, 3, 8 and 9. While the petitioner

opposes the application not only on the ground of insufficiency of reasons

for seeking condonation of delay but also on the ground that this Court has

no power to condone the delay in case the reply is filed beyond 120 days,

the respondent nos. 2,3,8 & 9 oppose the application only on the ground of

insufficiency of reasons.

4.

Mr. Mahajan, learned counsel for the petitioner submits that on

06.07.2023, this Court had granted six weeks time from the date of service

of the amended petition to the respondents to file a reply. The respondents,

having been served with a copy of the amended petition on 13.07.2023, have

chosen to file their reply only on 19.11.2023, i.e., after the 120 days period

prescribed in Chapter VII of the Delhi High Court (Original Side Rules),

2018 (hereinafter, ‘Rules’) had already expired on 10.11.2023.

5.

By drawing my attention to Section 295 of the Indian Succession Act

(hereinafter the ‘Act’), he submits that in cases where a ‘Will’ is contested,

the proceedings of the testamentary petition, which are otherwise governed

by Chapter XXIX of the Rules are required to be carried out as a regular suit

Digitally Signed

By:GARIMA MADAN

Signing Date:05.12.2023

16:41:06

Signature Not Verified

TEST.CAS. 17/2023 Page 3 of 9

to which Chapter VII of the Rules is clearly applicable. He further submits

that since the respondents had on 14.03.2022 itself, when the present

petition was listed for preliminary consideration, raised a plea that the Will

was not valid, it was evident right from the day one that this was a contested

matter wherein the respondents