Smt. Bhagwanti vs Shri Kanshi Ram Through Legal ...
2011 Latest Caselaw 751 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                               Date of Judgment: 08.02.2011


+RSA No. 152-158/2006 & CM No.1845/2009 ( u/O 1 R. 10
CPC)


SMT. BHAGWANTI                             ...........Appellant
                           Through:   Mr.B.K.Patel, Advocate.

                      Versus

SHRI KANSHI RAM THROUGH LEGAL HEIRS
                                ..........Respondent
                  Through: Mr. Satish Kumar Tripathi,
                           Advocate for respondent.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?

                                                             Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

26.10.2005 which had endorsed the finding of the trial judge dated

16.10.2004 whereby the suit filed by the plaintiff Bhagwanti Devi

seeking injunction against the defendant Kanshi Ram had been

dismissed. The defendant Kanshi Ram had died on 10.2.2003. An

application under Order 22 Rule 4 of the Code of Civil Procedure

(hereinafter referred to as 'the Code') had been filed by the

plaintiff seeking to implead the legal representatives of the

deceased defendant. The application had been contested on the

ground that the right to sue does not survive against the legal heirs

of the deceased as the suit was simplicitor a suit for permanent

injunction. Allegations made in the plaint were against the

defendant in his personal capacity and not against the legal heirs

of the deceased defendant. These contentions of the defendant

were upheld. The application under Order 22 Rule 4 of the Code

had been dismissed. The result was that the suit also stood

dismissed. This finding was affirmed by the first Appellate Court.

2. This is a second appeal. This Court can interfere with the

fact findings of the Courts below only if a substantial question of

law arises. Substantial questions of law have not been mentioned

in the body of the appeal. On this ground alone the appeal is liable

to be dismissed. However, in view of the oral submission made by

learned counsel for the appellant as also his submission that the

grounds of appeal which have been mentioned in the body of the

appeal be treated as the substantial questions of law, further

arguments have been addressed by the learned counsel for the

parties on this score. The grounds of appeal as mentioned in the

body of the appeal are accordingly treated as the substantial

questions of law phrased by the appellant. They have been

perused; they all border on the proposition as to whether where

the sole defendant had died, the cause of action survives against

his legal representatives, which is propounded on the premise of

the applicability of provisions of Order 22 Rule 4 of the Code.

3. The present suit was a simplicitor suit for permanent

injunction. The relief claimed was against the sole defendant

Kanshi Ram to restrain him and his associates etc. from making

any kind of interference in the construction work of the first floor

of Shop No.136, New Rajinder Nagar Market. New Delhi.

According to the plaintiff the cause of action arose when the

defendant started making interference in the construction work of

the plaintiff in the suit property. His case was that he has sanction

from the Municipal Corporation of Delhi to carry out the

construction and the interference by the defendant was

unwarranted. Admittedly, the defendant had expired on

5.10.2003. It is clear from the pleadings that the cause of action

has arisen in favour of the plaintiff and against the deceased

defendant alone; the grievance of the plaintiff was against the

defendant in his personal capacity. It can in no manner be said

that the cause of action extended to his legal representatives. The

findings of the Courts below calls for no interference. In

110(2004) DLT 662 Asha Batra Vs. Dharam Devi a similar question

had arisen wherein also a Bench of this Court had held that a suit

for injunction would come to an end on the death of the sole

defendant as the plea of forcible dispossession set up by the

plaintiff would become an illusion on the death of the said

defendant.

4. No substantial question of law has arisen. Appeal as also

pending application is dismissed in limine.

5. Needless to say that the appellant may avail any other legal

remedy if available to him.

INDERMEET KAUR, J.

FEBRUARY, 08, 2011 nandan