Delhi High Court
Shri Bhagwati Prasad Singhania ... vs Shri Basudeo Singhania And Ors. on 26 April, 2006
Author: A C.J.
Bench: A C.J., S Aggarwal
JUDGMENT
Acting C.J.
CM No. 5837/2006
Allowed subject to all just exceptions.
FAO (OS) No. 295-300/2006
1. The appellants are the legal heirs of plaintiff Shri Bhagwati Prasad Singhania. They have challenged the order passed by the learned Single Judge on 07.02.2006 dismissing their application for restoration of the suit and also for their substitution as legal heirs of the deceased plaintiff.
2. The appellants' predecessor Late Shri Bhagwati Prasad Singhania had filed a suit for declaration [CS (OS) No. 354/1997] and the said suit was dismissed for non prosecution vide order of learned Single Judge passed on 22.07.2002. The suit was dismissed for non-prosecution as the plaintiff gave no instructions to his counsel and the counsel was constrained to move an application for his discharge from the matter after duly serving a registered AD notice on the plaintiff. The plaintiff Late Shri Bhagwati Prasad Singhania expired in November, 2005 and after his death his legal heirs filed applications (IAs No. 1456-59/2006) for restoration of the suit and for their substitution as legal heirs. All these applications were dismissed by the learned Single Judge vide order impugned in this appeal. While dismissing the applications, the learned Single Judge has noted that the counsel for the plaintiff was discharged after he had put the plaintiff to notice that in view of lack of instructions, he will not be able to represent the plaintiff.
3. The learned Counsel for the appellants has argued that the plaintiff could not take steps for restoration of the suit during his life time as he was bedridden. The legal heirs of the plaintiff who are appellants herein have filed a medical certificate obtained from a private practitioner on 15.12.2005. We have perused the said medical certificate and, in our opinion, the said certificate is of no consequence as it does not state the disease from which the plaintiff (since expired) was allegedly suffering. No supporting document of medical treatment has been filed. We are not impressed with the contention of the appellants that their predecessor Late Shri Bhagwati Prasad Singhania could not take steps for restoration of the suit as he was bedridden. In our view, as the plaintiff himself did not take any step for restoration of the suit during his life time, though he remained alive for more than three years after the date of dismissal of the suit for non-prosecution, cause does not survive in favor of his legal heirs for restoration of the suit or for their substitution.
4. The learned Counsel for the appellants has cited a judgment of the Apex Court in Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. and on the strength of this judgment, he has argued that the learned Single Judge was not justified in dismissing the suit for non-prosecution after permitting the counsel to get his discharge from the case. According to the learned counsel, it was obligatory on the part of the learned Single Judge to have issued a Court notice to the plaintiff before dismissing the suit. This argument, in our view, has no force. The ratio of law laid down by the Apex Court in the aforementioned case is not applicable to the facts of this case as in that case the appeal had been admitted by the High Court and when appeal came for final hearing, the counsel was discharged at his request. What the Supreme Court has held in that case is that the High Court was not justified in dismissing the appeal for non-prosecution after admitting it. In the present case, before the counsel for the plaintiff (predecessor of the appellants) was allowed to withdraw from the conduct of the case, he had given a notice to the plaintiff of his intention to withdraw from the case and the said notice was sent by Registered AD post. As plaintiff had been put to notice about the date of hearing on the date counsel sought his discharge, there was no justification at all for the plaintiff not to appear in the case on the date, suit was dismissed for non-prosecution.
5. Having regard to the facts and circumstances of the case, We do not find any merit in this appeal, which is hereby dismissed in liming.
