Uoi vs Dharam Singh & Ors.
2011 Latest Caselaw 2344 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                           WP(C) No.3225/2007

%                      Date of Decision: 02.05.2011

UOI                                                      .... Petitioner

                     Through Mr. D.S. Mahendru, Sr. Govt. Counsel

                                Versus

Dharam Singh & Ors.                                  .... Respondents

                     Through Mr. Sant Lal, Advocate for LRs of
                             respondent No. 34

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers               NO
        may be allowed to see the judgment?
2.      To be referred to the reporter or not?          NO
3.      Whether the judgment should be                  NO
        reported in the Digest?


ANIL KUMAR, J.

* CM No. 11942/2010 in W.P.(C) No.3225/2007

This is an application by the petitioner/applicant for setting

aside the order dated 2nd August, 2010, dismissing the writ petition

in default of appearance of petitioner and his counsel and on the

ground that along with the application, being CM No. 2910/2010 for

substituting the legal heirs of deceased respondent No. 34, no

application seeking condonation of delay in filing the application for

substitution was filed despite the opportunity given and therefore,

the petition has abated.

The applicant has contended that on 2nd August, 2010, the

counsel for the petitioner could not appear when the matter was

taken up by the Court as he was busy in another matter before the

Bench of Hon'ble Mr. Justice Sanjay Kishan Kaul and Hon'ble Mr.

Justice Valmiki Mehta. The application is supported by the affidavit

of Dr. Amarpreet Duggal, Director, Foreign Post, Department of Post.

The applicant has also contended that the application seeking

condonation of delay in filing CM No. 2910/2010 seeking

substitution of the legal heirs of deceased respondent No. 34 was in

fact filed, however, since the counsel for the petitioner could not

appear on 2nd August, 2010 and therefore, the said fact could not be

brought to the notice of the Court entailing an observation that the

petitioner has not filed any application seeking condonation of delay

in filing the application being CM 2910/2009 seeking substitution of

the legal heirs and consequently the writ petition was held to have

abated also.

The learned counsel for respondent Nos. 1 to 33 and 35 and

for the legal heirs of deceased respondent No. 34 states that a reply

was filed, however, the same had been returned as it was not filed

within time.

By order dated 3rd March, 2011 four weeks' time was granted

to the non-applicants to file the replies and consequently, replies

should have been filed by 2nd April, 2011. Admittedly, the replies

were filed on 18th April, 2011 and were returned. Learned counsel

for the respondent/non-applicant is unable to give any cogent reason

for not filing the replies within time or to refile them along with

appropriate application of condonation of delay. Consequently, the

replies are not considered.

The reasons stated by the applicant constitute sufficient cause

for setting aside the order of the dismissal dated 2nd August, 2010

and holding that petition has abated. Consequently, the order of

dismissal dated 2nd May, 2011 and the abatement of petition is set

aside and the application of the petitioner being CM No. 2910/2009

and the writ petition are restored to their original numbers.

Application stands disposed of.

CM No. 2910/2009 and CM No. 14259/2010 in WP(C) No. 3225/2007

The respondent No. 34 had died on 4th February, 2008 leaving

behind Smt. Ritu Uppal, Master Kunal and Master Lokesh as his

legal heirs. According to the learned counsel for the

petitioner/applicant, the right to sue does not survive to the

surviving respondents alone and survives to the legal representatives

of deceased respondent No. 34.

The reason given for condonation of delay in filing the

application for substitution of the legal heirs is that the fact about

the death of the deceased respondent No.34 came to the knowledge

of the petitioners on 31st March, 2008 and thereafter, considerable

time was taken up to ascertain the particulars of the legal

representatives of the deceased respondent No.34, which would

constitute sufficient cause as contemplated under law in the facts

and circumstances.

In the circumstances, the applications are allowed and delay in

filing the application for substitution is condoned and the legal

representatives of deceased respondent No. 34, as detailed in Para-3

of CM No. 2910/2009, are substituted in place of deceased

respondent No. 34.

Applications stand disposed of.

WP(C) No. 3225/2007

Amended memo of parties be filed within two weeks.

List for hearing in the category of 'after notice misc. matters' on

29th July, 2011.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY 02, 2011 rs