Delhi High Court
Kavita Arora & Anr vs Deepak Arora & Ors on 7 August, 2025
`
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 23.07.2025
Judgment delivered on: 07.08.2025
+ RFA (OS) 40/2025, CM APPL.42208/2025 (for condonation of
delay of 3122 days in filing the appeal) and CM
APPL.42209/2025 (for stay)
KAVITA ARORA & ANR. .....Appellants
Through: Mr. Jagdeep Singh Bakshi,
Senior Advocate with Mr.
A.S. Bakshi, Mr. N.S. Bakshi,
Mr. N. Kumar, Ms. Anshu
Dawar and Mr. Sparsh
Kanwal, Advocates.
versus
DEEPAK ARORA & ORS. .....Respondents
Through: Mrs. Kajal Chandra and Ms.
Hatneimawi, Advocates for
R-1 to R-3.
Ms. Vandana Khurana,
Advocate for R-6 to R-17.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
HANKAR
JUDGEMENT
HARISH VAIDYANATHAN SHANKAR, J.
1. The present Appeal under Section 96 read with Order XLI of
the Code of Civil Procedure, 19081, read with Section 10 of Delhi
High Court Act, 1966 challenges the Judgment and Decree dated
20.12.2016 and Judgment dated 22.05.20252 passed by the learned
1
CPC
2
Impugned Judgements
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RFA (OS) 40/2025 Page 1 of 16
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
Single Judge of this Court in CS(OS) 189 of 2016 and in Review
Petition No. 349/2024 in CS(OS) 189/2016, respetively. The present
Appeal seeks the following reliefs:
In view of the aforesaid facts and circumstances, it is most
humbly prayed that this Hon‟ble Court may be pleased to:
1) Allow the present Appeal and set aside/reverse the
Impugned Judgment and Decree dated 20.12.2016 passed by
the Ld. Single Judge in the matter titled as “Deepak Arora &
Ors. Vs. Kavita Arora & Ors.“; CS(OS) 189/2016; and all
proceedings emanating therefrom;
2) Set aside/reverse the Judgment dated 22.05.2025 passed by
the Ld. Single Judge in the matter titled as “Deepak Arora &
Ors. Vs. Kavita Arora & Ors.“; in Review Petition No.
349/2024 in CS(OS) 189/2016; and
3) Pass such further orders or directions as this Hon‟ble Court
may deem just and proper in the facts and circumstances of the
present case.
2. The present Appeal is also accompanied by an application
bearing CM Appl. No. 42208/2025, seeking condonation of delay of
3122 days in filing the Appeal with respect to Judgment and Decree
dated 20.12.2016.
3. At the outset, it needs to be noted that what the Appellants
herein are, in essence, seeking to challenge, is the Judgment dated
22.05.2025 passed by the learned Single Judge in the Review Petition
349 of 2024 in CS(OS) No. 189 of 2016 whereby the said Review
Petition was adjudicated upon and dismissed on merits as well as on
the ground of delay, i.e. this Court refused to condone the delay of
2828 days in filing of the said Review Petition.
4. The Appeal is premised on a singular circumstance; that of the
Appellants being unaware of the Will dated 26.06.1978 of Smt. Hans
Kaur3, by which Appellant No.1’s husband, namely, late Mr. Raj
3
The Will
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By:HARVINDER KAUR
BHATIA
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`
Kumar Arora, was bequeathed the suit property to the exclusion of all
other persons.
5. It appears that, the learned Single Judge, while hearing the
Review Petition, was faced with the exact same arguments. While
comprehensively dismissing the contentions, as raised in the Review
Petition, the learned Single Judge in Judgment dated 22.05.2025 held
as follows:-
“26. Broadly understood, case of Defendants No. 1 and 2 in
the review petition, seeking review of judgment dated
20.12.2016, is predicated on a Will dated 26.06.1978, whereby
Smt. Hans Kaur bequeathed the entire suit property in favour
of Shri Raj Kumar Arora, who in turn executed a Will dated
27.09.2003, bequeathing the property in favour of Defendant
No. 1. The argument is that once the property is bequeathed in
favour of Defendant No. 1, no other legal heir is entitled to the
property and thus the final decree by sale of suit property and
distribution of sale proceeds amongst all legalheirs in
respective shares as declared by preliminary decree is
unsustainable in law.
27. The moot question that arises for consideration in this
review petition is whether Defendants No. 1 and 2 can set up a
Will at this stage to claim rights on the suit property to the
exclusion of other legal heirs and whether there is any legal
infirmity in the judgment and decree dated 20.12.2016. It is
undisputed that when Defendants No. 1 and 2 filed written
statement on 05.08.2016, they had taken a stand that the
property was bequeathed by Smt. Hans Kaur in favour of Shri
Raj Kumar Arora. However, no material particulars of the Will
were pleaded. Order VI Rule 1 CPC provides that „pleading‟
shall mean plaint or written statement. Order VI Rule 2 CPC
provides that every pleading shall contain a statement in a
concise form of the material facts on which the party pleading
relies for his claim or defence, as the case may be. Expression
„material facts‟ is not defined anywhere, however, material
facts would be those facts on which a party relies for his claim
or defence and facts on which Plaintiff‟s cause of action or
Defendant‟s defence depend and the facts which must be
proved to establish Plaintiff‟s right to the relief claimed in the
plaint or Defendant‟s defence in the written statement.
„Material particulars‟ are details of the case set up by the
parties and are such pleas which are necessary to amplify,Signature Not Verified
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By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`refine or explain material facts. It is settled that if material
facts are omitted, a party should not be allowed to raise a
contention on a particular point even if some material is
available in the evidence. On the other hand, the Court may
permit the party to raise material particulars if material facts
on those aspects have been pleaded, on the basis of the
evidence unless the opposite party is thereby materially
prejudiced. In the present case, the material fact of execution
of a Will dated 26.06.1978 was completely missing in the
written statement filed by Defendants No. 1 and 2. Admittedly,
neither the original nor the photocopy of the Will was ever
filed. Therefore, at this stage, Court cannot permit Defendants
No. 1 and 2 to set up the Will dated 26.06.1978 to seek a
review of the judgment dated 20.12.2016, when no steps were
taken over the years to even amend the written statement.
28. It is pertinent that on 06.12.2016, during the pendency of
the suit, Court took up an application filed by the Plaintiffs
being I.A. No. 13230/2016 seeking a direction to Defendant
No. 1 to discover on oath and place on record original
documents on which she was claiming ownership of the
property. On a query by the Court whether or not the failure of
Defendant No. 1 to prove her defence would be to the benefit
of the Plaintiffs and whether or not the Plaintiffs by filing such
an application were helping Defendants in proving their case,
the application was not pressed. However, the fall out of this
order is that Defendants No. 1 and 2 were completely put to
notice that there was nothing on record to prove their exclusive
ownership to the suit property and even at this stage, no steps
were taken to produce the alleged Will. Judgment dated
20.12.2016 indicates that there was no opposition from
Defendants No. 1 and 2 in passing a decree of partition and
the only objection was that there were other properties of
which they were entitled to seek partition.
29. Since there was no opposition, in the presence of the
counsels for the parties, Court held that on the pleadings as
existing, no issue requiring a trial arose and in this light, a
preliminary decree was passed declaring the shares of the
parties. Since the counsels stated that considering the number
of shares and the size of the property, it was not capable of
partition by metes and bounds, a final decree was passed on
the same day for partition by sale of the property and
distribution of the sale proceeds amongst the parties as per
their respective shares declared in the preliminary decree.
Since Defendants No. 1 to 5 were in exclusive possession of the
property, they were directed to vacate their respective portions
and deliver possession to the purchaser. It is evident that tillSignature Not Verified
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By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`the passing of the final decree, Defendants No. 1 and 2 did not
propound the Will dated 26.06.1978 and/or seek its probate.
30. It is a settled law that Article 137 of the Limitation Act,
1963 applies to application for grant of probate or letters of
administration. Article 137 provides a limitation period of
three years for filing an application for which no period of
limitation is provided elsewhere and the three years commence
from when the right to apply accrues. It is true that probate of
a Will is not mandatory if the same is not contested, however,
the moment there is a contest to the Will, the party
propounding the Will is required to seek a probate. In
Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Others,
(2008) 8 SCC 463 and Krishan Kumar Sharma v. Rajesh
Kumar Sharma, (2009) 11 SCC 537, the Supreme Court held
that Article 137 shall apply to petitions for grant of probate
and letters of administration. Division Bench of this Court in
Pratap Singh and Another v. State & Another, 2010 SCC
OnLine Del 2715, followed these judgments and this position
has been reiterated by the Supreme Court in Sameer Kapoor
and Another v. State Through Sub-Division Magistrate South,
New Delhi and Others, (2020) 12 SCC 480. Therefore, it is
clear that if the Will is contested and a party claims interest
adverse to the bequeather, the party claiming rights under the
Will will have to apply for probate of the Will and this can be
done only within three years when the right to apply accrues.
31. The next question as to when the right to apply accrues
need not detain this Court as this issue has been decided by the
Supreme Court in Pamela Manmohan Singh v. State & Ors.,
1999 SCC OnLine Del 1077, wherein it was held that period of
three years would commence from the date on which the
legatee to a Will could be justifiably ascribed with the
knowledge that the Will on which his claim is founded is likely
to be disputed by other persons, especially the natural heirs of
the testator. In Pratap Singh (supra), Division Bench was
seized of a case where Appellant had filed a probate petition
on 05.09.1997. Respondent No. 2 had filed a civil suit for
partition and rendition of accounts on 28.05.1997 inter alia
alleging that the suit properties were joint family properties.
Prior to the said suit, Respondent No. 2 had filed another civil
suit in 1984 for declaration that the alleged Will dated
11.03.1983 was null and void, which was disposed of with
certain directions on 19.03.1996. Applying the judgments of
the Supreme Court aforementioned, the Division Bench held
that the right to apply for probate accrue to the Appellant on
the date of knowledge of the 1984 suit and probate petition
being filed beyond three years period of limitation was barred
by limitation.
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
32. Coming to the facts of this case, Plaintiffs filed the present
suit on 08.04.2016 seeking partition, permanent injunction and
rendition of accounts etc. with respect to the suit property. On
05.08.2016, written statement was filed by Defendants No. 1
and 2. Therefore, institution of the suit for partition was a
clear indication to Defendants No. 1 and 2, alleged legatees of
Will dated 26.06.1978 that the Will was likely to be disputed by
the Plaintiffs, who were the natural heirs of Smt. Hans Kaur.
However, not only was the Will not set up in defence by
furnishing material facts and/or particulars, no steps were
taken to file a probate petition within three years from the
knowledge. Therefore, even if Defendants No. 1 and 2 were to
file a probate petition today, the same will be time barred.
Hence, what Defendants No. 1 and 2 cannot do directly, they
cannot be permitted to do indirectly by filing a review petition.
33. This matter can be examined from another angle. It is
settled law that if two or more rights are available to a party
on the same subject, it would be open to a party to elect which
one right it would like to avail of, called the Doctrine of
Election. In Parma Nand Ahuja v. Satya Dev Ahuja and
Others, AIR 1973 DEL 190, the Appellant had instituted a suit
against his two step brothers, a step sister and step mother for
partition of his share in the properties belonging to his father
stating that his father had executed a Will dated 16.10.1956
but he had chosen to place his claim on 1/5th share of the
property under law of inheritance and did not claim benefits
under the Will. The Trial Court framed an issue viz. whether
the suit on the basis of Hindu Law or Hindu Succession Act is
not maintainable because of the allegation that the deceased
left a Will. Learned Single Judge of this Court dismissed the
suit on this issue holding that Section 8 of the Hindu
Succession Act, 1956 would apply to a male Hindu who died
without leaving a valid Will and where there was a valid Will,
property cannot devolve under Section 8. The Division Bench
set aside the findings and held that Appellant was entitled in
law to confine his claim on the basis of Hindu Succession Act.
This judgment was followed by another Division Bench in
Vikram Singh and Another v. Ajit Inder Singh, 2014 SCC
OnLine Del 847 and learned Single Judge in M/s. Uma Ghate
v. Mr. Umesh Phalpher, 2016 SCC OnLine Del 6179, holding
that upon the death of a person if there is a bequest by way of
a Will, legal heirs can elect whether to proceed to inherit the
estate of the deceased as per the Will or inherit the estate as
legal heirs and successor-in-interest of the deceased.
34. The proposition of law that comes forth is that even if there
is a Will, a legatee can choose to confine his relief to proceed
to inherit the estate of the deceased as legal heir and
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
successor-in-interest of the deceased. In the present case, in
my view, Defendants No. 1 and 2 had elected to inherit the
estate of Smt. Hans Kaur by succession under Section 8 of the
Hindu Succession Act, 1956 and this is clear from two-fold
facts. Firstly, during the suit, it was never pleaded or proved
that Smt. Hans Kaur had executed the alleged Will dated
26.06.1978. Not even a photocopy of the Will was filed. In their
presence and with their consent, the Court passed an order
that no issues arose for trial of the suit and the final decree
was passed. This decree has not been challenged till date,
which is the first indicator of Defendants No. 1 and 2 having
elected to abandon their rights under the alleged Will dated
26.06.1978, besides the fact that even till date, Defendants No.
1 and 2 have not filed a probate petition. Even thereafter, when
the execution was filed, on 15.02.2019, Defendants No. 1 and
2 stated before the Court that they shall file an undertaking to
deposit the keys in respect of the vacant possession with the
Registrar General of this Court within two months. Court
directed them to file the undertaking within one week. Again,
on 26.02.2019, Defendant No. 2 undertook on his behalf as
also on behalf of Defendant No. 1 that vacant and peaceful
possession will be handed over to the auction purchaser within
one month of the auction by the Local Commissioner. The
undertaking was accepted by the Court. After the Local
Commissioner was appointed and the matter came up before
the Court on 28.01.2024, yet again Defendants No. 1 and 2
along with Defendants No. 3 to 5 requested the Court to be
given one additional month to vacate the property and
undertook to hand over vacant peaceful possession to the
Local Commissioner on or before 30.09.2024. Court recorded
their undertaking separately and held that they shall remain
bound by the same. Each of these orders not only indicate a
solemn undertaking to the Court on multiple occasions to
vacate the property but also indicates the clear abandonment
of the rights of Defendants No. 1 and 2 to claim under the
alleged Will dated 26.06.1978. Having clearly elected to give
up the rights under the Will dated 26.06.1978, Defendants No.
1 and 2 cannot today assert a right to claim the suit property
to the exclusion of others.
35. For all the aforesaid reasons, this Court finds no merit in
the review petition and the same is dismissed.”
6. The learned Single Judge examined the Review Petition on
merits and also exhaustively considered the aspect of delay. The
application for condonation of delay, filed in support of the said
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
Review Petition, in the same Judgment, suffered a similar fate in the
following terms:-
“8. Heard learned counsel for the Plaintiffs and learned
Senior Counsel for Defendants No. 1 and 2.
9. In order to seek condonation of delay, a party must satisfy
the Court that „sufficient cause‟ prevented the party from
approaching the Court within the prescribed period of
limitation. Statute of limitation is founded on public policy and
as held by the Supreme Court from time to time, the aim is to
secure peace and to suppress fraud and perjury, so as to
quicken diligence and prevent oppression. In Basawaraj
(supra), the Supreme Court held that sufficient cause is a
cause for which the party cannot be blamed and therefore, this
expression embraces no more than that which provides a
platitude, which when the act done suffices to accomplish the
purpose intended in the facts and circumstances existing in a
case, duly examined from the viewpoint of a reasonable
standard of a cautious man, which means that party should not
have been negligent or the act should not suffer for want of
bona fides. Approach of the Courts, while condoning delay,
must be to ensure that the discretion is exercised judiciously
and even though limitation may harshly affect rights of a party
but it has to be applied with all rigour. Limitation cannot be
extended for convenience of parties or on equitable grounds as
that would amount to legislating.
10. With this in the backdrop, it needs to be examined whether
Defendants No. 1 and 2 are deserving of exercise of discretion
in their favour by condoning an inordinate delay of 2828 days
in filing the present review petition. I have carefully gone
through the application seeking condonation of delay. The
singular reason in support of the plea of condonation is that
Defendants No. 1 and 2 came upon the original Will dated
26.06.1978 executed by Smt. Hans Kaur, when they
approached the Union Bank of India for copy of the documents
directed by the Court vide orders dated 20.05.2024 and
21.08.2024. It is averred that they had no idea that the original
Will was with the bank.
11. As rightly flagged by counsel for the Plaintiffs, this plea is
completely belied by the written statement filed by Defendants
No. 1 and 2 on 05.08.2016, wherein a plea was taken that Smt.
Hans Kaur had bequeathed the suit property in favour of late
Shri Raj Kumar Arora and that the suit property was
mortgaged by the said Defendants with Union Bank of India to
secure the loan from the bank. It is only natural that the
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By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
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`
property was mortgaged once the documents were furnished
by Defendant No. 1 and/or Defendant No. 2 and if the Will
dated 26.06.1978 is allegedly now found as a part of the
documents, the question is whether Defendants No. 1 and 2
can today plead that they have no knowledge that the alleged
original Will was with the bank and the answer can only be in
the negative. Therefore, clearly by their own stand, Defendants
No. 1 and 2 were aware of the purported Will from the date the
property was mortgaged, if not prior thereto and certainly on
the date when the written statement was filed i.e., 05.08.2016.
Therefore, plea that Defendants No. 1 and 2 became aware of
the alleged Will only when they visited the bank, post orders
passed by this Court, is completely false and contrary to their
own stand in the written statement. No other ground is taken in
the application. This Court is of the view that Defendants No.
1 and 2 have not made out sufficient cause for condonation of
delay and instead, the application is predicated on a false
premise, which in itself is enough to dismiss the application.
12. The judgments relied upon by Mr. Bakshi, learned Senior
Counsel for Defendants No. 1 and 2, cannot be of any avail. In
Raheem Shah (supra), the delay in filing the regular first
appeal against the decree of the Trial Court was 52 days. The
Supreme Court observed that the delay not being inordinate,
the first Appellate Court and the High Court were not justified
in dismissing the appeal. In Mool Chandra (supra), the delay
was 425 days in filing original application before the
Administrative Tribunal and the Supreme Court found as a
matter of fact that the delay was succinctly explained by the
Appellant that there was no intimation of withdrawal of the
earlier O.A. by his counsel and the order dated 10.08.2018 did
not reflect that such withdrawal was with the consent of the
Appellant. The Supreme Court also found that on merit, the
High Court had proceeded to confirm the order of the Tribunal
on the footing that penalty imposed on the Appellant was a
minor penalty, overlooking that in the earlier round of
litigation, it was held that punishment of dismissal was
disproportionate to the alleged act. This Court sees no
similarity in the two cases, either on the number of days of
delay as also the reasons for condonation.
13. Accordingly, this application is dismissed as Defendants
No. 1 and 2 have been unable to make out sufficient cause for
condonation of delay.
14. While this Court sees no reason to enter into the merits of
the review petition in light of the order passed in this
application yet, on the insistence of Mr. Bakshi, learned Senior
Counsel for Defendants No. 1 and 2 that there is merit in the
review petition and considering that arguments were
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By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
canvassed by the parties, I proceed to examine the petition on
its merits.”
7. We see no infirmity in the Judgment dated 22.05.2025 passed
by the learned Single Judge dismissing either the application for
condonation of delay in filing of the Review Petition or in the
dismissal of the Review Petition itself, and agree with the reasoning
and conclusions thereof.
8. We do not wish to repeat the conclusions and the material on
record basis which such conclusions were drawn. However, this Court
would like to supplement the same with the following aspects.
9. At the outset, it needs to be stated that the premise of the
Appellants herein does not appear to be bona fide. The pleadings of
the suit would reveal that the suit property was mortgaged to the
Union Bank of India by the Appellants herein. The relevant paragraph
indicating the same is reproduced herein for the sake for convenience:
“15. That in reply to para no. 15 it is submitted that since
Defendant no. 1 is the exclusive owner and in possession of the
suit property. Defendant no. 1 is within her rights to deal with
the suit property in any manner. That it is further submitted
that the suit property is already mortgaged by the answering
Defendants with Union Bank of India to secure loan from the
bank. That there is no question of Defendant no. 1 selling the
suit property to anyone and had no intention to alienate,
transfer or part with the possession in any manner.”
10. The case of the Appellants set-up today is that they are unaware
of the documents that were submitted in support of the application for
the loan availed from the Union Bank of India. Given the fact that it
was the Appellants themselves who had applied for the loan, we are at
a loss to appreciate or understand the plea now taken by the
Appellants that they were unaware of the documents submitted by
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
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`
them in support of the loan application. The Will dated 26.06.1978,
which the Appellants state that they were unaware of, was, in fact, part
of the documents submitted in support of the loan application. The
fact that this document was in possession of the Bank is clearly
evidenced by the Letter dated 19.08.2002, which is the legal opinion
in respect of whether the suit property could have been mortgaged or
not. The same clearly mentions that it had examined the Will dated
26.06.1978 executed by Ms. Hans Kaur.
11. Given that the Appellants herein, admit to have mortgaged the
said property, this Court finds it difficult to accept the assertion that
the Appellants were unaware of the Will, which was a document
examined by the Bank before subjecting the property to being
mortgaged.
12. The pleadings would also reveal that, on various occasions, it
has been asserted by the Appellants themselves that they had been
repaying the loan that had been availed from the Union Bank of India,
and that the amount owed was progressively reducing. This would
clearly indicate that the Appellants had been actively engaging with
the bank and its officials, with full knowledge of the entire transaction.
13. Purely on this singular point, this Court believes that there is
absolutely no merit in any of the contentions of the Appellants, and
the present Appeal, in fact, deserves to be dismissed with exemplary
costs.
14. This Court would like to re-count, albeit briefly, few of the
other aspects relating to the merits before proceeding to examine the
question of the colossal delay in filing various proceedings, inter alia,
the Review Petition as well as the present Appeal.
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
15. The Plaintiffs/Respondents herein had filed a suit for partition,
possession, injunction and rendition of accounts as against the
Appellants herein on the basis of intestate succession. The Appellants
herein, who were the Defendants in the said suit, had filed their
written statement whereby they denied any intestate succession and
specifically pleaded that the suit property had been bequeathed to the
husband of Appellant No. 1 herein, and as a result, the plea of
Plaintiffs/Respondents herein on the basis of intestate succession was
not maintainable.
16. It would appear that some time during the proceedings in the
suit, the Plaintiffs/Respondents filed an application seeking production
of documents in support of which the Defendants/Appellants herein
were denying the claims of the Plaintiffs/Respondents herein. Upon
the Court pointing out to the Plaintiffs/Respondents herein that such
an application would perhaps be to their detriment, as they would, by
that application be permitting the Defendants/Appellants herein to
adduce evidence in their support, the Plaintiffs/Respondents herein
sought leave to withdraw the same. No such Will in support of their
claim was produced by the Appellants, despite this opportunity.
17. In fact, from the inception of the suit till the present date, no
Will dated 26.06.1978 as claimed by the Appellants herein has seen
the light of the day.
18. The suit came up for final hearing on 20.12.2016, and on the
said date, both, the preliminary decree for partition of the suit property
as well as the final decree for partition by sale of the property and
distribution of the sale proceeds amongst the parties to the suit, based
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
on the shares as determined by the preliminary decree, came to be
passed.
19. The Appellants herein were also directed to vacate the premises
and to deliver possession to the purchaser of the said property.
20. The said decree was sought to be executed by the Respondents
and came up before this Court on various dates. The Appellants, being
the Judgment Debtors, on not less than three dates, being 15.02.2019,
26.02.2019 and 27.09.2019, undertook to hand over the vacant
physical possession to the Auction Purchaser.
21. What the Appellants are seeking to do today is; firstly,
propagate, what appears to be a falsehood, that they were unaware of
the existence of a Will dated 26.06.1978, and secondly, to resile from
the undertakings that they have made before this Court by filing the
Review Petition as well as the present Appeal, and carry out all of the
above actions at an extremely belated stage with highly unbelievable
stories.
22. With respect to the aspect of the falsehood, this Court has
already dealt with the same in the foregoing paragraphs.
23. Now, coming to the aspect of limitation, we would like to
reiterate the principles as laid down in the judgment rendered by the
Hon’ble Apex Court in Pathapati Subba Reddy (Died) By L.Rs. and
Others v Special Deputy Collector (LA) 4. The relevant paragraph of
the same is reproduced herein for the sake of brevity:
“23. In Basawaraj v. Special Land Acquisition Officer8, this
Court held that the discretion to condone the delay has to be
exercised judiciously based upon the facts and circumstances
of each case. The expression „sufficient cause‟ as occurring in4
2024 SCC OnLine SC 513
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`Section 5 of the Limitation Act cannot be liberally interpreted
if negligence, inaction or lack of bona fide is writ large. It was
also observed that even though limitation may harshly affect
rights of the parties but it has to be applied with all its rigour
as prescribed under the statute as the courts have no choice
but to apply the law as it stands and they have no power to
condone the delay on equitable grounds.
25. This Court in the same breath in the same very decision
vide paragraph 15 went on to observe as under:
“15. The law on the issue can be summarised to the effect
that where a case has been presented in the court beyond
limitation, the applicant has to explain the court as to
what was the “sufficient cause” which means an adequate
and enough reason which prevented him to approach the
court within limitation. In case a party is found to be
negligent, or for want of bona fide on his part in the facts
and circumstances of the case, or found to have not acted
diligently or remained inactive, there cannot be a justified
ground to condone the delay. No court could be justified
in condoning such an inordinate delay by imposing any
condition whatsoever. The application is to be decided
only within the parameters laid down by this Court in
regard to the condonation of delay. In case there was no
sufficient cause to prevent a litigant to approach the court
on time condoning the delay without any justification,
putting any condition whatsoever, amounts to passing an
order in violation of the statutory provisions and it
tantamounts to showing utter disregard to the
legislature.”
(emphasis supplied)
26. On a harmonious consideration of the provisions of the
law, as aforesaid, and the law laid down by this Court, it is
evident that:
(i) Law of limitation is based upon public policy that there
should be an end to litigation by forfeiting the right to
remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or
availed of for a long time must come to an end or cease to
exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to beSignature Not Verified
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`construed in a strict sense whereas Section 5 has to be
construed liberally;
(iv) In order to advance substantial justice, though liberal
approach, justice-oriented approach or cause of
substantial justice may be kept in mind but the same
cannot be used to defeat the substantial law of limitation
contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been explained,
but that exercise of power is discretionary in nature and
may not be exercised even if sufficient cause is established
for various factrs such as, where there is inordinate delay,
negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter,
it does not mean that others are also entitled to the same
benefit if the court is not satisfied with the cause shown for
the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in
condoning the delay; and
(viii) Delay condonation application has to be decided on
the parameters laid down for condoning the delay and
condoning the delay for the reason that the conditions
have been imposed, tantamounts to disregarding the
statutory provision.”
24. The present matter is one that is egregiously belated and
premised on what this Court believes is a highly fantastic story.
25. We now come to the aspect of the attempt on the part of the
Appellants to somehow wriggle out of or resile from the various
undertakings given before this Court and as recorded in the Orders as
set out herein.
26. This Court deprecates the manner in which the Appellants
herein had sought to withdraw themselves from their solemn
undertakings. It is trite law that the undertakings given before this
Court, if sought to be withdrawn, can only be done within a
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By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14
`
reasonable period of time and only given in extenuating circumstances
which would require detailed explanation.
27. In the present case, the reasons sought to be given for now
seeking to resile from the said undertakings are completely
unacceptable.
28. This Court is also in agreement with the finding of the learned
Single Judge that the Judgment dated 22.05.2025 wherein it has been
held that the Appellants, in fact, elected to give up any claim on the
basis of the Will and given the consistent conduct of the Appellants,
right from the date of passing of the Judgment, i.e. 20.12.2016, to
giving various undertakings before this Court. It is apparent that they
have chosen to be governed by the Decree passed by this Court which
was for an equitable distribution of the suit property and not on the
basis of the Will.
29. In view of the aforestated facts and circumstances, this Court is
of the opinion that the present Appeal needs to be dismissed.
30. Accordingly, the present Appeal, along with pending
application(s), if any, is disposed of in the aforesaid terms.
ANIL KSHETARPAL
(JUDGE)
HARISH VAIDYANATHAN SHANKAR
(JUDGE)
AUGUST 7, 2025/rk/va
Signature Not Verified
RFA (OS) 40/2025 Page 16 of 16
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:08.08.2025
19:02:14