Delhi High Court
Rani Pushpa Kumari Through Her Lr ... vs The Embassy Of Syrian Arab ... on 27 July, 2001
Author: B Chaturvedi
Bench: B Chaturvedi
ORDER
B.N. Chaturvedi, J.
1. Awaiting disposal is an application under Order I Rule 10 CPC made by Shree Jagat Dhatri Mata Trust with the following prayer:
"It is, therefore, prayed that the name of Shri A.K. Jajodia who was substituted in place of the deceased plaintiff be deleted and the name of the applicant be substituted as the legal representative of the deceased plaintiff."
2. There is yet another application under Order XXXIX Rules 1 & 2 read with Section 151 CPC seeking stay of the proceedings pending disposal of the application under Order I Rule 10 CPC.
3. No reply to either of these applications has been filed on behalf of the plaintiff. Learned counsel for the plaintiff rather proceeded to address against the same without filing any reply thereto.
4. I have heard both the sides.
5. Facts relevant for decision on the application under Order I Rule 10 CPC are that the defendant, Embassy of Syrian Arab Republic, was inducted as a tenant in the suit premises with effect from 1st of January, 1986 under two separate lease agreements. One lease deed was executed between late Dr. Nagendra Singh as KARTA of HUF and the defendant with respect to the portions of the sit property falling to his share, and the other lease deed was executed between three other co-owners, namely, Smt. Indira Kumari, Smt. Sarla Kumari and Shri Raj Singh, and the defendant in respect of remaining portions thereof.
6. Dr. Nagendra Singh died on 11th of December, 1988. Rani Pushpa Kumari Devi, widow of Dr. Nagendra Singh, after serving a notice dated 27.11.1990 on the defendant terminating its tenancy, filed the present suit for possession and mesne profits against it claiming herself to be owner and landlady of the tenanted premises.
7. Rani Pushpa Kumari Devi died on 11th of August, 1996. The present plaintiff, Shri A.K. Jajodia, filed an application under Order XXII Rule 10 CPC for his substitution as plaintiff in place of Rani Pushpa Kumari Devi on the basis of a registered Will dated 24.5.1995 executed by Rani Pushpa Kumari Devi in his favor. By an order dated 14.10.1998, the application under Order XXII Rule 10 CPC was allowed and Shri A.K. Jajodia was accordingly substituted as plaintiff in place of Rani Pushpa Kumari Devi.
8. In the application under Order I Rule 10 CPC, it is stated that Rani Pushpa Kumari Devi was, in fact, not the owner of the suit property, and, therefore, she was not competent to bequeath the suit property in favor of Shri A.K. Jajodia by way of Will dated 24.5.1995. It is claimed that late Dr. Nagendra Singh was owner of the suit property to the extent of 62-1/2% while remaining 37-1/2% of the property belonged to Smt. Indira Kumari, Smt. Sarla Kumari and Shri Raj Singh. Late Dr. Nagendra Singh, according to the applicant, executed a Will dated 15.5.1987 bequeathing his entire share in the suit property in its favor. The remaining 37-1/2% of the suit property came to be owned by the applicant by virtue of a gift deed dated 8.8.1986 executed by Smt. Indira Kumari, Smt. Sarla Kumari and Shri Raj Singh, which was registered with the Sub-Registrar, New Delhi. It is accordingly pleaded that the applicant being the exclusive owner of the suit property is the rightful person to be substituted as plaintiff in place of Rani Pushpa Kumari Devi.
9. The defendant in its written statement denied that Rani Pushpa Kumari Devi was the owner and Landlady of the demised premises, and that she was competent to maintain the suit against it. In view of such a plea on behalf of defendant, one of the issues raised in the suit reads to the following effect:-
"1. Whether the plaintiff has no locus standi to file the present suit? OPD"
10. Shri A.K. Jajodia, the present plaintiff, was substituted in place of original plaintiff, late Rani Pushpa Kumari Devi on the basis of a Will dated 24.5.1995 executed by Rani Pushpa Kumari Devi in his favor. By Order dated 2.11.1998, letters of administration in respect of such Will was issued in favor of Shri A.K. Jajodia by probate court. Rani Pushpa Kumari Devi, predecessor in interest of Shri A.K. Jajodia, the present plaintiff, filed the present suit for possession and mesne profits claiming herself to be owner/landlady of the suit premises. For deciding the suit against the defendant, the plaintiff is to establish that Rani Pushpa Kumari Devi was owner/landlady of the suit premises and that the present plaintiff being her successor in interest is competent to maintain the suit. On failure to do so, the plaintiff will be liable to be non-suited.
11. The applicant seeks its substitution in place of present plaintiff on the ground that by virtue of Will purported to have been executed in its favor by late Dr. Nagendra Singh relating to his 62-1/2% share in the suit property and gift deed to the extent of 37-1/2% share by the other co-owners, it has become exclusive owner of the suit property, and therefore, a rightful person to be substituted for the present plaintiff, as legal representative of late Rani Pushpa Kumari Devi.
12. Inter se dispute of ownership with respect to the suit property between the present plaintiff and the applicant cannot be decided in the course of proceedings of the present suit. Here the limited question is, if the present plaintiff is entitled to recovery of possession of the suit property and mesne profits from the defendant.
13. Order I Rule 10(1) CPC deals with substitution or addition of plaintiff after an action is brought, while sub-Rule (2) deals with striking out or addition and not substitution. The applicant has not come up with the plea that the suit was filed in the name of a wrong person as plaintiff or that it was doubtful whether it had been instituted in the name of a right plaintiff. Therefore, applicant's case does not fall under Order I Rule 10(a) CPC. Order I Rule 10(2) CPC does not provide for substitution as plaintiff. The prayer of the applicant that the name of the present plaintiff be deleted and its name be added clearly implies a case for substitution. Since the name of Shri A.K. Jajodia was substituted for the original plaintiff under the order dated 14.10.1998 of this Court, there is no question of deletion of his name as plaintiff. The question of addition of applicant's name is not necessary for effectual and complete adjudication on the questions involved in the present suit. The applicant, in the facts of present case, cannot be said to be a person in whose absence no effective decree at all can be passed. The dispute relating to ownership of suit property being essentially between the present plaintiff and the applicant, the same is extraneous to the points in issue in the present suit. The applicant, thus, cannot be held to be a necessary party for effectual and complete decision on the matter in controversy between the parties to the present suit. Therefore, there is no ground to grant the application. The application is, thus, liable to be disallowed and it is ordered accordingly.
14. With the dismissal of the application under Order I Rule 10 CPC, the relief sought for in the other application under Order XXXIX Rules 1 & 2 read with Section 151 CPC seeking stay of proceedings pending disposal of that application does not survive and the same stand disposed of accordingly.
