Jp Gupta Decd Thru Lrs vs Delhi Development Authority & ...
2013 Latest Caselaw 4062 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+              F.A.O. No.216/2012 & C.M. No.9142/2012 (for stay)

                                       Decided on : 10th September, 2013

JP GUPTA DECD THRU LRS.                 ...... Appellant
              Through: Mr. Amar Pal, Advocate.

                         Versus

DELHI DEVELOPMENT AUTHORITY & ORS.
                                                    ...... Respondents
                       Through:   None.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellants under Order 43 Rule 1

CPC against the order dated 5.1.2012 passed by the District Judge by

virtue of which the application of the appellants under Order 22 Rule 3

CPC for substituting their names as legal representatives of the deceased

appellant, J.P. Gupta, was rejected.

2. The learned counsel for the appellants has contended that the right

to sue survives and, therefore, the appellants be impleaded as legal

representatives of the deceased appellant, J.P. Gupta. In support of his

submission, the learned counsel has sought to place reliance on the Will

dated 2.10.2010 purported to have been made by J.P. Gupta bequeathing

certain immovable properties in favour of the appellants.

3. I have carefully considered the submissions made by the learned

counsel and have also gone through the record. I do not agree with the

contention of the learned counsel for the appellants that the right to sue

survives on the appellants. The reasons for this have been given by the

learned District Judge while rejecting their application under Order 22

Rule 3 CPC. I find myself in full agreement with the said reasoning.

4. Briefly stated the facts leading to filing of the present appeal are

that deceased appellant J.P. Gupta was fastened with the recovery of

penal rent for the period 24.7.1982 to 31.12.1990 for having

unauthorizedly occupying the public premises described as A-2/156/2,

Safdarjang Enclave, New Delhi. The appellants had preferred an appeal

against the order dated 25.7.1991 passed by the Estate Officer imposing

the penal rent. During the pendency of the appeal, the appellant, J.P.

Gupta, died and an application under Order 22 Rule 3 CPC was filed by

the present appellants claiming that they being the daughters of the

deceased appellant had the right to sue surviving on them in pursuance of

the Will dated 2.10.2010 which was allegedly left behind by the deceased

appellant and accordingly, they should be permitted to continue with the

appeal. It may be pertinent here to mention that the penal rent, of which

recovery was sought from the appellant, was to the tune of `4.5 lacs.

5. The learned trial court rejected the application for substitution of

legal heirs on three grounds. Firstly, the application was not supported by

an affidavit of the appellants, who happen to be the daughters of the

deceased; secondly, the Will dated 2.10.2010 which was sought to be

relied by the appellants in token of their having succeeded to the estate of

the deceased appellant does not mention about the fact that they can be

deemed to have succeeded as legal heirs in lieu of the deceased appellant;

and lastly, it was not disputed that in addition to two daughters, the

deceased appellant had two sons also who were not impleaded as parties

or shown even in the memo of parties to the application filed under Order

22 Rule 3 CPC. Because of these three reasons, the application for

substitution of legal heirs of the deceased appellant filed by the appellants

was dismissed.

6. It is in this background, the appellants have tried to re-agitate the

said rejection of their application for substitution of legal heirs by

contending that they had succeeded to the estate of the deceased and,

therefore, they may be permitted to contest the penal rent which has been

imposed by the Estate Officer on the deceased appellant for alleged

illegal occupation of the public premises for the period 1982 to 1990.

7. I fully agree with the reasoning given by the learned trial court that

the Will itself which is sought to be relied upon by the appellants, does

not give any indication that the appellants have the right to sue in respect

of the challenge to the debt which was payable by the deceased appellant.

8. In this regard, the learned counsel for the appellant has tried to

refer to the definition of the word 'legal representative' as given in CPC

and contended since they had succeeded to the estate of the deceased

appellant, therefore, they may be permitted to be substituted as legal

representatives as the debt will be sought to be recovered by the

respondents against the estate.

9. I do not agree with the contention of the learned counsel that the

debt of an individual could be treated as an estate. The learned trial court

has already noted the fact that Will does not make any reference to the

case or to the liability accruing to the deceased on account of levying of

penal rent for use and occupation of the property in Rajinder Nagar. In

addition to this, the appellants do not seem to be fair and truthful

inasmuch as it is admitted by them that they have two brothers also who

have not been impleaded as a party and to top of it, the application for

substitution of legal heirs is not supported by any affidavit of the

appellants.

10. In view of the foregoing reasons, I feel that the application of the

appellants for substituting their names in place of the deceased appellant

was not maintainable. There is no illegality and impropriety in the

impugned order. The appeal is accordingly dismissed.

V.K. SHALI, J.

SEPTEMBER 10, 2013 'AA'