H.B. Singh vs Gursharan Kaur
1997 Latest Caselaw 370 Del

JUDGMENT

K.S. Gupta, J.

(1) This appeal by the defendant/appellant is directed against the order dated January 30, 1996 of a learned Single Judge dismissing Ia No. 4333/95 filed under Order Xxii Rule 3(2) and allowing Ia No. 6190/96 filed under Order 1 Rule 10 CPC.

(2) Ia No. 4333/95 dated May 17, 1995 was filed by the defendant/appellant on the allegations that the entire suit is based on the cause of action in favour of Kirpal Singh (plaintiff No. 2), who died on January 10, 1993. Neither the fact of his death was brought to the notice of the court nor any application was filed for bringing on record his legal heirs. It was prayed that the suit may be dismissed as having abated with costs.

(3) Ia No. 6190/96 dated July 7, 1996 was filed by plaintiff/respondent No. 1 on the allegations that she purchased property No. R-264, Greater Kailash-I, under a registered sale-deed dated July 21, 1966. Kirpal Singh her husband, had been managing the property and the other affairs on her behalf. With a view to carry out construction work in Libya, her husband formed a partnership on February 1, 1980 and the appellant was one of his partners. Since the appellant had no place for his residence in Delhi, he was permitted to use the first floor of the said property for a short period with effect form May 1, 1980. On his refusal to vacate the property despite repeated requests and service of legal notice dated March 14, 1992, suit for possession and recovery of licence fee/damages was filed against him. Kirpal Singh, who died on January 10, 1993, was imp leaded as plaintiff No. 2 in the suit only as a proforma party and as the right to sue survives in her favour alone his name be deleted from the memo of parties.

(4) In the reply filed to Ia No. 4333/95 respondent No. 1 has taken pleas identical to those taken by her in Ia No. 6190/96.

(5) Contention advanced by Shri N.N.Aggarwal appearing for the appellant was that after the death of Kirpal Singh (plaintiff No. 2) right to sue did not survive to plaintiff/respondent No. 1 alone. In the alternative, according to him, even if the right to sue survived in favour of respondent/plaintiff No. 1 alone the suit abated in so far as it relates to the deceased since no application under Order Xxii Rule 3 Civil Procedure Code was made within the time prescribed. Reliance was placed on a decision in Narain Pershad & Others Vs Naresh Chandra, Ilr (1979) I Delhi 723.

(6) Rule 2 of Order Xxii Civil Procedure Code which is relevant provides as under:

"WHERE there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants."

(7) Rule 3 of Order Xxii Civil Procedure Code which too is material reads thus:-

"(1)Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2)Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

(8) Admittedly suit for possession and recovery of licence fee/damages of the first floor accommodation of aforesaid property No.R-264 in occupation of the appellant was filed, inter alia, on the allegations that respondent No. 1 is the owner of the property which was being managed by Kirpal Singh on her behalf; that the Kirpal Singh, one Jan Talwar and the appellant under a deed of partnership dated February 1, 1980 were the partners in M/s. H.B.Singh & Company Overseas which was carrying on construction business in Libya. Appellant did not have any accommodation in Delhi for his residence and that of the family members. In view of the close relation between him and Kirpal Singh, the former was permitted to use the first floor accommodation of aforesaid property No.R-264 only of a short period with effect from May 1, 1980. It is alleged that because of noncompetition of construction work in Libya, on account of administrative difficulties, dispute arose amongst partners and their relations became strained. Despite repeated requests and service of the legal notices dated January 21, 1992 / March 14, 1992, the appellant failed to deliver the possession of the accommodation in his occupation. In the suit although the appellant is stated to have been served by publication in newspaper on December 2, 1994 he is yet to file written statement.

(9) The test whether right to sue survives to the surviving plaintiffs or against the surviving defendants is whether the surviving plaintiffs can alone sue or the surviving defendants can alone be sued in the absence of the deceased plaintiff or defendant, as the case may be. On the averments made in the plaint, respondent No. 1 being the owner of aforesaid property No.R-264 alone can maintain suit for possession and recovery of licence fee/damages against the appellant within the meaning of Rule 2 of Order Xxii CPC. Provisions contained in Rule 3 of Order Xxii Civil Procedure Code are not attracted, if a case is covered by Rule 2 of that Order. We are, thus, unable to accept either of the submissions referred to above as advanced by Shri Aggarwal.

(10) Otherwise also there is no question of abatement of the suit. Respondent No. 1 being widow of the deceased and thereby an heir is already on record.

(11) In Narain Pershad & Others (supra) decree for recovery of possession was passed on the ground that the appellants did not succeed to the statutory tenancy and so did not become tenants under Naresh Chandra. It was held that if the decree was to be reversed in appeal, all heirs of Uma Pershad deceased would have a joint and indispensable right in the tenancy and, therefore, Mrs. Uma Pershad was a necessary party in appeal. On her death her heirs or legal representatives must take her place and in the absence of the legal representatives the appeal was defective and abated as a whole. Obviously, this decision has no application to the facts of the present case.

(12) Learned Single Judge had, thus, rightly dismissed Ia No. 4333/95 and allowed Ia No. 6190/96 by the impugned order dated January 30, 1996.

(13) Appeal has no force and is, therefore, dismissed but in the circumstances with no order as to costs.