* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 20.03.2012
+ CM(M) 172/2007 & CM No.14616/2009
SURESH KUMAR AGARWAL & ORS. ..... Petitioner
Through Mr. Aseem Mehrotra, Adv.
versus
VEER BALA AGGARWAL ..... Respondent
Through Mr.C. Mukund, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 The impugned judgment is dated 14.08.2006. The impugned order was passed by the first appellate Court dismissing the appeal of the petitioner wherein the application filed by him under Order XXII Rule 10 of the Code of Civil Procedure (hereinafter referred to as the 'Code') as also another application filed under the same provision of law by the three applicants i.e. Mahesh Kumar Gupta, Mulk Raj Gupta and Ashima Gupta seeking substitution in place of the plaintiff had been dismissed. The Court was of the view that the suit had abated on the death of the plaintiff and the present application under Order XXII Rule 10 of the Code not having been filed in that period when the suit was pending and CM(M) No. 172/2007 Page 1 of 5 the suit already having abated, this application was not maintainable. 2 The application filed by the present petitioners i.e. Suresh Kumar Aggarwal, Sushila Aggarwal and M/s Arpit Paper Pvt. Ltd as also Gajanand Aggarwal was based on the premise that the earlier purchasers i.e. Mahesh Kumar Gupta, Mulk Raj Gupta and Ashima Gupta had sold their interest and right in the disputed property in their favour; they were thus required to be impleaded in place of the plaintiff Krishan Lal Arneja. This application filed by the aforenoted applicants dated 05.04.2004 had been dismissed on 13.12.2004 by the Civil Judge. Against this order i.e. order dated 13.12.2004, the first appellate Court had reaffirmed the order of the trial Court and dismissed the application of the applicants vide the impugned order dated 14.08.2006. 3 The contention of the applicants was that valid documents of sale had been executed by the aforenoted persons Mahesh Kumar Gupta, Mulk Raj Gupta and Ashima Gupta in their favour; these documents prima-facie show that they are purchasers of this aforenoted property and as such they having got a valid assignment in their favour, they were liable to be impleaded in place of the plaintiff.
4 Record shows that the present suit filed by the original plaintiff CM(M) No. 172/2007 Page 2 of 5 Krishan Lal Arneja was a suit for specific performance; record shows that even the first applicants i.e. Mahesh Kumar Gupta, Mulk Raj Gupta and Ashima Gupta were never impleaded in place of the plaintiff; their application dated 24.04.1996 was filed but thereafter not pursued. As such the substitution of the second category of persons namely the present petitioners Suresh Kumar Aggarwal, Sushila Aggarwal, M/s Arpit Paper Pvt. Ltd and Gajanand Aggarwal did not arise; they were admittedly claiming their rights only through Mahesh Kumar Gupta, Mulk Raj Gupta and Ashima Gupta who themselves not having allowed to be substituted in place of the original plaintiff, the present petitioners had no right or interest in the suit property; they could in no manner be termed as 'necessary' or 'proper' parties.
5 Moreover the provisions of Order XXII Rule 10 of the Code would apply only when the suit was pending; the present suit had been disposed of as having been abated on 27.01.2003 and as such the application filed by the present petitioners on 05.04.2004 which was admittedly much after the date of abatement; the question of applicability of order XXII Rule 10 of the Code did not apply. This provision permits the applicant in case of an assignment, creation or CM(M) No. 172/2007 Page 3 of 5 devolution of any interest to continue a suit; this is clear from the language of the aforenoted provision which reads as follows:- "10. Procedure in case of assignment before final order in suit.- (1) in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved."
6 Admittedly no application under Order XXII Rule 9 of the Code seeking setting aside of the abatement order dated 27.01.2003 was also ever filed; the contention of the petitioner before this Court that the said application filed by him before this Court and may be considered by this Court is a mis-directed submission. The suit admittedly abated on 27.01.2003, the application having been filed almost one decade later before this Court which is not the original Court; this Court is sitting in its power of superintendence under Article 227 of Constitution of India cannot entertain such an application.
7 It is also not in dispute that Article 121 of the Schedule appended to the Limitation Act, 1963 would be the applicable provision seeking the setting aside of the an abatement order. Admittedly this suit stood abated on 27.01.2003; present application filed under Order XXII Rule CM(M) No. 172/2007 Page 4 of 5 10 (even presuming it to be an application under Order XXII Rule 9 of the Code) on 05.04.2004 is also much beyond the prescribed period of limitation. In the instant case, the suit already having come to an end by the order of abatement on 27.01.2003 and there being no pendency of a suit at the time when the aforenoted application was filed; impugned order dismissing these applications of the petitioner suffers from no illegality.
8 Petition is without any merit. Dismissed.
INDERMEET KAUR, J
MARCH 20, 2012
A
CM(M) No. 172/2007 Page 5 of 5