Delhi High Court
Shri Sham Lal & Anr. vs Shri Raj Kumar & Anr. on 13 November, 2009
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
CM Nos.11062-63/2009 in FAO. No.135/1985
% Judgment reserved on: 11th November, 2009
Judgment delivered on: 13th November, 2009
1. Shri Sham Lal,
Son of Shri Gokal Chand,
R/o. 4031, Naya Bazar,
Delhi-110006.
2. Shri Ashwani Kumar,
S/o. Shri Sham Lal,
Partners: M/s. Harish Brothers,
4031, Naya Bazar,
Delhi-110006. ....Appellants.
Through: Mr. A.K. Gautam, Adv.
Versus
1. Shri Raj Kumar,
Son of Shri Charanji Lal,
2. Smt. Krishna Devi,
W/o. Shri Charanji Lal,
Partners M/s. Harish Brothers,
4031, Naya Bazar,
Delhi-110006 ...Respondents.
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
CMs11062-63/09 in FAO 135/1985 Page 1 of 5
V.B.Gupta, J.
Applicant Urvashi Walia has filed applications for restoration of appeal under
Order IX Rule 4 of Code of Civil Procedure (for short as „Code‟) as well as under Section
5 of Limitation Act for condonation of delay.
2. In these applications, it is stated that appellants being the father and son, filed the
above appeal against order dated 22nd July, 1985 passed by Additional District Judge,
Delhi, vide which the award passed by the Arbitrator has been set aside.
3. During pendency of the appeal, appellant No.1 died on 23rd March, 1989 leaving
behind following legal heirs;
a. Mrs. Prakash Kaur, Widow
b. Mrs. Usha Rani, Daughter
c. Mr. Ashwini Ahluwalia, Son
d. Mrs. Urvashi Walia, Daughter
4. Appellant No.2 also expired on 10th October, 1990 leaving behind his widow and
one minor son.
5. Mrs. Prakash Kaur, Widow of appellant No.1 also expired on 1st August, 2003.
The present status of the surviving legal heirs after death of both appellants is as follows;
a. Mrs. Urvashi Walia, daughter of late Shri Sham Lal
b. Mrs. Usha Rani, daughter of late Shri Sham Lal
c. Mrs. Asha Ahluwalia, wife of late Shri Ashwani Ahluwalia;
d. Abhishek Ahluwalia, minor son of late Shri Ashwani Ahluwalia.
6. After death of appellants, their legal heirs were disturbed and taking advantage
thereof, respondent created hurdles in the family and in June, 2009, he started removing
the dividing wall between the properties of both the parties, which is the subject matter of
this appeal. The concerned advocate engaged by appellants in this appeal, after the death
of appellants, never contacted the applicants nor dropped any letter in writing in order to
enable them the status of this appeal nor the applicants are aware about the name and
telephone number of the said advocate, which resulted in dismissal of this appeal on
account of non-prosecution.
7. Appellants ultimately instructed Dr. A.K. Gautam, advocate for making
inspection of the file, who advised the applicants that the appeal has been dismissed on
6th May, 2004 on account of non-prosecution. The delay of 10 years in moving
application for restoration is not intentional but for the bona fide reasons as stated above.
8. It is contended by learned counsel for applicants that both appellants in this case
have died and applicants were not aware of the proceedings of this appeal. The previous
advocate did not inform the applicants about the pendency of this appeal. Thus, there are
sufficient grounds for condonation of delay as well as for restoration of this appeal.
9. This appeal was admitted on 29th August, 1985. On 2nd January, 2003, the matter
was listed for the first time in the court after 28th February, 1986. Notice for actual date
was ordered to be issued to the parties through counsel for 20th February, 2003. On that
day, Ms. Meera Kapoor appeared on behalf of appellant and stated that Mr. Rakesh
Luthra, who was representing the appellant earlier had died and she would seek
instructions from appellant for appearance.
10. On 31st July, 2003, the matter was listed for service of counsel for respondents but
none appeared on that date. On subsequent hearings, even none appeared for the
appellant. On 6th April, 2004, matter was listed before Registrar, who passed the
following order;
"No steps have been taken by the appellant to serve the
respondent. Nobody is appearing for the appellant. The
matter be listed before Hon‟ble Court for non
prosecution on 6th May, 2004.
-sd-
Registrar"
11. On 6th May, 2004, again none appeared. In view of the order passed on 6th April,
2004, the appeal was dismissed for non-prosecution.
12. Present applications have been filed after more than five years, after dismissal of
the appeal. These applications are ex facie not maintainable. As per averments made in
the applications, appellant No.1 died on 23rd March, 1989, while appellant No.2 died on
10th October, 1990. Till date no application for substitution of their legal heirs has been
brought on record. Moreover, as per averments made in the applications, there are four
surviving legal heirs as on date, after death of the appellants. However, present
applications have been filed and signed by only one of the applicants namely Urvashi
Walia. There is no application on behalf of remaining legal heirs at all.
13. Since no application for substitution of legal heirs have been filed on behalf of
legal heirs of the appellants, within the prescribed period of limitation, the appeal stands
abated. These applications for restoration of the appeal as well for condonation of
delay, are ill conceived and legally not maintainable as none of these applications, have
been signed by the remaining legal heirs.
14. Under these circumstances, present applications are not legally maintainable and
have been filed just to waste the time of this court. Accordingly, these applications are
dismissed with costs of Rs.10,000/-. Applicant is directed to deposit the costs with
Registrar General of this Court, within one month from today, failing which Registrar
General shall recover the same in accordance with law.
15. List for compliance on 15th December, 2009.
13th November, 2009 V.B.GUPTA, J.
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