Suresh Kumar Agarwal & Ors vs Veer Bala Aggarwal
2012 Latest Caselaw 1915 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment: 20.03.2012

+     CM(M) 172/2007 & CM No.14616/2009

SURESH KUMAR AGARWAL & ORS.                ..... Petitioner
                   Through Mr. Aseem Mehrotra, Adv.
            versus

VEER BALA AGGARWAL                                  ..... Respondent
                Through               Mr.C. Mukund, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The impugned judgment is dated 14.08.2006. The impugned order

was passed by the first appellate Court dismissing the appeal of the

petitioner wherein the application filed by him under Order XXII Rule

10 of the Code of Civil Procedure (hereinafter referred to as the 'Code')

as also another application filed under the same provision of law by the

three applicants i.e. Mahesh Kumar Gupta, Mulk Raj Gupta and Ashima

Gupta seeking substitution in place of the plaintiff had been dismissed.

The Court was of the view that the suit had abated on the death of the

plaintiff and the present application under Order XXII Rule 10 of the

Code not having been filed in that period when the suit was pending and

the suit already having abated, this application was not maintainable.

2 The application filed by the present petitioners i.e. Suresh Kumar

Aggarwal, Sushila Aggarwal and M/s Arpit Paper Pvt. Ltd as also

Gajanand Aggarwal was based on the premise that the earlier purchasers

i.e. Mahesh Kumar Gupta, Mulk Raj Gupta and Ashima Gupta had sold

their interest and right in the disputed property in their favour; they were

thus required to be impleaded in place of the plaintiff Krishan Lal

Arneja. This application filed by the aforenoted applicants dated

05.04.2004 had been dismissed on 13.12.2004 by the Civil Judge.

Against this order i.e. order dated 13.12.2004, the first appellate Court

had reaffirmed the order of the trial Court and dismissed the application

of the applicants vide the impugned order dated 14.08.2006.

3 The contention of the applicants was that valid documents of sale

had been executed by the aforenoted persons Mahesh Kumar Gupta,

Mulk Raj Gupta and Ashima Gupta in their favour; these documents

prima-facie show that they are purchasers of this aforenoted property

and as such they having got a valid assignment in their favour, they were

liable to be impleaded in place of the plaintiff.

4 Record shows that the present suit filed by the original plaintiff

Krishan Lal Arneja was a suit for specific performance; record shows

that even the first applicants i.e. Mahesh Kumar Gupta, Mulk Raj Gupta

and Ashima Gupta were never impleaded in place of the plaintiff; their

application dated 24.04.1996 was filed but thereafter not pursued. As

such the substitution of the second category of persons namely the

present petitioners Suresh Kumar Aggarwal, Sushila Aggarwal, M/s

Arpit Paper Pvt. Ltd and Gajanand Aggarwal did not arise; they were

admittedly claiming their rights only through Mahesh Kumar Gupta,

Mulk Raj Gupta and Ashima Gupta who themselves not having allowed

to be substituted in place of the original plaintiff, the present petitioners

had no right or interest in the suit property; they could in no manner be

termed as 'necessary' or 'proper' parties.

5 Moreover the provisions of Order XXII Rule 10 of the Code

would apply only when the suit was pending; the present suit had been

disposed of as having been abated on 27.01.2003 and as such the

application filed by the present petitioners on 05.04.2004 which was

admittedly much after the date of abatement; the question of

applicability of order XXII Rule 10 of the Code did not apply. This

provision permits the applicant in case of an assignment, creation or

devolution of any interest to continue a suit; this is clear from the

language of the aforenoted provision which reads as follows:-

"10. Procedure in case of assignment before final order in suit.- (1) in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved."

6 Admittedly no application under Order XXII Rule 9 of the Code

seeking setting aside of the abatement order dated 27.01.2003 was also

ever filed; the contention of the petitioner before this Court that the said

application filed by him before this Court and may be considered by this

Court is a mis-directed submission. The suit admittedly abated on

27.01.2003, the application having been filed almost one decade later

before this Court which is not the original Court; this Court is sitting in

its power of superintendence under Article 227 of Constitution of India

cannot entertain such an application.

7 It is also not in dispute that Article 121 of the Schedule appended

to the Limitation Act, 1963 would be the applicable provision seeking

the setting aside of the an abatement order. Admittedly this suit stood

abated on 27.01.2003; present application filed under Order XXII Rule

10 (even presuming it to be an application under Order XXII Rule 9 of

the Code) on 05.04.2004 is also much beyond the prescribed period of

limitation. In the instant case, the suit already having come to an end by

the order of abatement on 27.01.2003 and there being no pendency of a

suit at the time when the aforenoted application was filed; impugned

order dismissing these applications of the petitioner suffers from no

illegality.

8      Petition is without any merit. Dismissed.



                                             INDERMEET KAUR, J
MARCH         20, 2012
A