Delhi High Court
Riasuddin vs Sheikh Mohd. Arif And Ors. on 10 May, 2005
Equivalent citations: 120 (2005) DLT 139, 2005 (82) DRJ 267
Author: M Mudgal
Bench: M Mudgal
JUDGMENT
Mukul Mudgal, J.
1. This petition under Section 115 CPC challenges the Order dated 8th July, 2004 passed by the Civil Judge, Delhi in a suit titled as "Sheikh Mohd. Arif Vs Sh. Riasuddin" seeking to having a notice issued to the Administrator General, Delhi Administration for representing the estate of defendant No. 3 (since deceased) as per the provisions of Order XXII Rule 4A of the Code of Civil Procedure which confers discretion upon the Court to proceed in the suit in the absence of the deceased party or to app(sic)nt the Administrator General.
2. By the impugned order dated 8th July, 2004 the Civil Judge has given sound reasons for not issuing notice to the Administrator General, Delhi Administration because the defendant No. 3(since deceased) was merely a proforma party imp leaded to avoid any technical objection. It has been noticed that as per the plaintiff, defendant No. 2 and Shri Prem Singh were the co-owners of the suit property to the extent of 108/136, 14/136 and 14/136 and the defendant No. 1 averred to be a trespasser. It was also ld by the learned Civil Judge that in spite of service the defendant No. 3 had never appeared or filed his written statement.
3. It was held that the plaintiffs/respondents have no right to continue the suit against the defendant No. 3 as right to sue survives qua defendant No. 1. Since the defendant No. 1/petitioner herein is in possession, he is obviously not interested in an early disposal of the matter and it appears that this plea of issuing notice to Administrator-General, Delhi Administration has been adopted to delay the proceedings.
4. Order XXII Rule 4A CPC reads as follows:-
"XXII 4A. Procedure where there is no legal representative.__(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person or the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.
(2) Before making an order under this rule, the Court -
(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and
(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person."
A perusal of the above provision makes it clear that, the said provision is not mandatory and has been correctly construed by the learned Civil Judge to be merely discretionary as the phrase `may' has been used. It has been correctly held that sce no relief was claimed against the defendant No. 3 a co-owner, no need for the notice to issue to the Administrator General arose particularly when the defendant No. 3 in spite of service had not been appearing.
5. The learned counsel for the petitioner has also attempted to raise the pleas before this Court relating to Section 29 of the Hindu Succession Act about the vesting of the property in the Government. This plea has not been noticed in the judgment order of the Civil Judge nor has it been stated in this petition that this plea was urged before the learned civil judge and not dealt by it. Since this plea was not urged and not dealt with by the impugned order dated 8th July, 2004, accordingly the petitioner cannot now be permitted to urge this plea before this Court afresh.
5. In this view of the matter no cause for interference with the impugned order dated 8th July, 2004 is made out in the revisional jurisdiction under Section 115 of the CPC as no error of jurisdiction or its exercise with material irregularity has been established. Consequently the revision petition is dismissed in liming.
