Roshan Lal Mehta vs Nand Singh
1997 Latest Caselaw 988 Del

JUDGMENT

Manmohan Sarin, J.

(1) Learned Counsel for the respondent did not desire to file a reply and the case had been directed to be listed for today after notice miscellaneous matters, vide order dated 28.8.1997.

(2) By this revision petition. Counsel for the petitioner had assailed the order dated 4.9.1993, passed by the then Sub Judge, allowing the application under Order Xxii, Rule 3, Civil Procedure Code of the applicant, Mr. Satwant Singh.

(3) The facts in brief as set out by the Counsel for the petitioner may be briefly noted: The petitioner had purchased the house in question viz. D-229, Ashok Vihar, Delhi, constructed on a plot of 125 sq. yards from one Mr. Nand Singh, the original plaintiff. It is stated that possession was handed over to petitioner Nos. I and 2, who happened to be husband and wife. Sh. Nand Singh had also executed the usual agreement to sell, power of attorney in favour of petitioners and a registered will in favour of Sh. Roshan Lal, petitioner No. 1. On 11.10.1982, the deceased plaintiff, Sh. Nand Singh filed a suit for possession alleging that the petitioner Nos. 1 and 2 had trespassed into the property and sought possession. The suit was filed forma pauperis. The evidence was recorded in support of Sh. Nand Singh's claim for institution of the suit as forma pauperis. The Court found vide its order dated 5.12.1989 that the deceased plaintiff was having income and capable of paying the Court fee. Written statement in the suit was also filed on 18.4.1990 after Nand Singh had paid the court fee. After the death of Sh. Nand Singh on 18.2.1991, applicant Sh. Satwant Singh mewed an application for being substituted as L.Rs. of the deceased plaintiff, Sh. Nand Singh. The substitution was sought on the basis of a will dated 4.8.1997, which happened to be a subsequent will to the will claimed to have been executed in favour of the petitioner by the deceased, Sh. Nand Singh.

(4) The learned Civil Judge allowed the application for substitution despite the objections by the petitioner that the deceased plaintiff had no right to bequeath the said property and such a will dated 4.8.1997 could not be the basis of the application for bringing the L.Rs. on record. The learned Civil Judge held that the applicant Sh. Satwant Singh was entitled to be substituted on the basis of the will dated 4.8.1997, which was a registered one and to pursue the claim for possession. The learned Civil Judge also observed that the applicantSh. Satwant Singh would have to prove the will in question as having been executed. Further,that the view sex pressed in the impugned order would have no bearing on the decision of the case on merits.

(5) Learned Counsel for the petitioner, Mr. Goswami has submitted before me that the learned Civil Judge has acted with material irregularity in allowing the application in the present facts and circumstances. It is his contention that there was no right to sue in favour of the alleged L.Rs. of the deceased plaintiff viz. Sh. Satwant Singh. Accordingly, there was no question of bringing the said L.Rs. on record. The contention being that the deceased plaintiff had already entered into an agreement for sale of the house with the petitioners and put the petitioners in possession pursuant thereto. Further that in support of the said agreement to sell and to safeguard the petitioners from any future objection by his legal representatives, he had executed a will dated 15.7.1975 in favour of Sh. Roshan Lal, petitioner No 1. Similarly, power of attorney was given in favour of the wife/petitioner No. 2 to protect the interest of the petitioners. Learned Counsel also points out that the will dated 15.7.1975 is also a registered will. The said will specifically mentions the property in question, where as will dated 4.8.1987, relied by the respondent for being substituted as L.Rs. does not mention the property at Delhi and deals with other properties in Himachal Pradesh.

(6) I am afraid the aforesaid submissions of the Counsel for the petitioner really turn on the merits of the matter to be gone into during trial. The question whether ultimately in the suit, the petitioner on the basis of the will dated 15.7.1975, coupled with the agreement to sell and power of attorney and the factum of possession will succeed and non-suit the respondent, cannot at the present juncture come in the way of the respondent being allowed to be substituted on the basis of a will which has been executed in his favour. The respondent/plaintiff would have to prove the case during trial including the will dated 4.8.1987. In any case, merely by allowing the respondent to be substituted in place of the deceased plaintiff, no irreparable damage is likely to be caused to the petitioner, who would have the full opportunity to defend the suit on merits on the basis of the documents, which have been relied on and to establish his case. The question while deciding an application under Order Xxii, Rule 3, Cpc, which the Court considered is whether the applicant has made out a case for being substituted on the basis of either being a legal heir or right to sue surviving in his favour. The respondent cannot at this stage be shut out from raising a claim irrespective of the merit of the claim.

(7) In view of the foregoing, I did not find any material irregularity or error of jurisdiction calling for interference in the impugned order. The revision petition has no merit and is dismissed. Revision Petition dismissed.