Delhi High Court
N.J. Kanwar vs Ranjit Charles Singh (Since ... on 4 April, 2014
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: April 04, 2014
+ CM(M) No.1161/2012 & C.M. No.18218/2012 (for stay)
N.J. KANWAR ..... Petitioner
Through Mr.Arun Khosla, Adv. with
Ms.Shreeanka Kakkar, Adv.
versus
RANJIT CHARLES SINGH (SINCE DECEASED) & ANR
..... Respondents
Through Mr.Sandeep Sethi, Sr.Adv. with
Mr.Chetan Chawla, Adv. for R-2.
AND
+ CM(M) No.1182/2012 & C.M. No.18468/2012 (for stay)
PANCHSHILA HOSPITALITY VENTURES LTD. ..... Petitioner
Through Mr.Arun Khosla, Adv. with
Ms.Shreeanka Kakkar, Adv.
versus
RANJIT CHARLES SINGH (SINCE DECEASED) & ANR
..... Respondents
Through Mr.Sandeep Sethi, Sr.Adv. with
Mr.Chetan Chawla, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The abovementioned petitions have been filed by two petitioners who
are the plaintiffs in the learned Trial Court. In the petitions, both have
challenged the orders dated 26th September, 2012 whereby their applications
under Order 22 Rule 4(4) of the Code of Civil Procedure (hereinafter
referred to as "the Code) were disposed of.
2. The petitioners filed the suit for specific performance of the
Agreement to Lease between previous owner and the petitioner, against
respondent No.2 herein seeking direction by way of decree against the
previous owner to perform the agreement and execute the lease deed in
respect of the suit property as per the site plan at a monthly rental of
`1,500/-. The main case of both the petitioners is that the previous owner
settled her dispute with the petitioners. The orders dated 18th October, 2007,
5th November, 2007 and 23rd November 2007 evidence the compromise
arrived at between them resulting in the dismissal of the eviction petition
filed by the previous owner.
3. The suits were filed on 4th August, 2008 on the basis of the oral
agreement/lease against them. The suit property was sold to the defendant
No.2 (respondent No.2 herein) on 26th July, 2007. Admittedly deceased
Smt.Ranjit Charles Singh (defendant No.1 in the suit proceedings and
respondent No.1 herein), previous owner, did not appear after the service.
No written statement was filed by her. The respondent No. 2 in her suit for
ejectment filed an application under Order XXII Rule 4(4) read with Section
151 of the Code seeking exemption from necessity of substituting the legal
representatives of the deceased Smt.Ranjit Charles Singh. The same was
granted by order dated 4th June, 2012.
4. It was stated by the respondent No.2 that the suit property has already
been sold by previous owner by way of registered sale deed. The respondent
No.2 has already terminated the tenancy of the suit property and suit for
possession and damages is pending prior to the suits filed by the petitioner.
Thus, the respondent No.1 i.e. previous owner Smt.Ranjit Charles Singh was
left with no right, title or interest in the suit property. The petitioner on the
date of filing of the suit for specific performance was aware that no relief
could have been claimed against deceased Smt.Ranjit Charles Singh. The
respondent No.2 is contesting the said two suits, being the bonafide
purchaser of the suit property and is the only necessary party in the suits to
determine the real dispute. According to respondent No.2 both the suits are
not maintainable since they have been filed on the basis of oral agreement
which has never been arrived at between the petitioners and the previous
owner. Both suits are false and frivolous.
5. It is argued by Mr.Khosla, learned counsel appearing on behalf of the
petitioners that Mrs. Ranjit Charles Singh did not enter appearance and did
not file her written statement in the suits filed by the petitioners for specific
performance. Respondent No.2 has been exempted from substituting her
legal heirs in the suit filed by the respondent No.2 for ejectment. The
respondent No.2's application was allowed by order dated 4th June, 2012,
thus, the learned Trial Court has grossly erred in dismissing the application
by observing that "more clarity with regard to the veracity of the affidavits
by the deceased would emerge if the LRs are brought on record". Counsel
argued that more confusion would occur if they are brought on record and
veracity of the affidavit is communicated by LRs. The said findings are
irrelevant and affidavit filed by Mrs.Ranjit Charles Singh could not be
examined in the absence of written statement. Non-filing of written
statement confirms that there was a transaction of the oral agreement of
lease between her and petitioners. Mr.Kholsa refuted the argument of
Mr.Sethi as far as merit of the cases are concerned.
6. It is the admitted position that the petitioners in their application have
made alternative prayer that in case, the Court is not inclined to exempt them
to bring on record the legal heirs of the deceased, then the legal
representatives be brought to be made parties as per details given in the
application.
7. To appreciate the controversy between the parties, it would be useful
to reproduce Order 22 Rule 4 of the Code which reads as under :-
"Order XXII-Rule 4:
(1) Where one of two or more defendants dies and the right to
sue does not survive against the surviving defendant or defendants
alone, or a sole defendant or sole surviving defendant dies and the
right to sue survives, the Court, on an application made in that
behalf, shall cause the legal representative of the deceased
defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence
appropriate to his character as legal representative of the deceased
defendant.
(3) Where within the time limited by law no application is
made under Sub-rule (1), the suit shall abate as against the deceased
defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff
from the necessity of substituting the legal representatives of any
such defendant who has failed to file a written statement or who,
having filed it, has failed to appear and contest the suit at the
hearing; and judgment may, in such case, be pronounced against the
said defendant notwithstanding the death of such defendant and
shall have the same force and effect as if it has been pronounced
before death took place.
(5) Where--
(a) the plaintiff was ignorant of the death of a defendant,
and could not, for that reason, make an application for the
substitution of the legal representative of the defendant under
this rule within the period specified in the Limitation Act,
1963 (36 of 1963), and the suit has, in consequence, abated,
and
(c) the plaintiff applies after the expiry of the period
specified therefore in the Limitation Act, 1963 (36 of 1963) for
setting aside the abatement and also for the admission of that
application under Section 5 of the Act on the ground that he
had, by reason of such ignorance sufficient cause for not
making the application within the period specified in the said
Act.
the Court shall, in considering the application under the said
Section 5, have due regard to the fact of such ignorance, if proved."
8. It is clear from Sub-rule (1) of Rule 4 of Order XXII of the Code that
in case of death of one of the defendants, if there are more than one
defendants or in the case of death of sole defendant, if the right to sue
survives, LRs have to be brought on record by an application made in that
behalf. Sub-rule (3) of Rule 4 of Order XXII of the Code provides that
where within the time limited by law, no application is made under Sub-rule
(1), the suit shall abate as against the deceased defendant. Sub-rule (4)
provides that the Court, whenever it thinks fit, may exempt the plaintiff
from the necessity of substituting the legal representatives of the
deceased/defendant :
(a) if he has failed to file a written-statement; or
(b) having filed the written-statement has failed to appear and
contest the suit at the hearing;
9. It is apparent that if the death occurs of a defendant who has not filed
his written-statement or has remained absent and has not contested the suit,
the plaintiff can be exempted from the necessity of substituting the legal
heirs of the deceased defendant. Therefore, Rule 4 (4) of the Code is by way
of an exception to Rule 4(1) and Rule 4 (3) of Order XXII of the Code
providing for the necessity of bringing legal heirs of deceased defendant on
record.
10. In the present case, both suits were filed on 4th August, 2008 by the
petitioners for specific performance after the suit property was already sold
by the previous owner Smt.Ranjit Charles Singh to the respondent No.2.
From record it is evident that the petitioners were aware about the said
factum of sale in favour of the respondent No.2. Admittedly after the
purchase of suit property, the respondent No.2 already filed a suit for
possession and damages on 26th May, 2008 who is contesting the suits filed
by the petitioners. It is also correct that in her suit, similar prayer in the
application for exemption to bring on record LRs of previous owner has
been allowed on 4th June, 2012 wherein it was held that the presence of the
legal representatives is not required in view of the fact.
11. In view of the above facts and circumstances and after having gone
through the provision of Order XXII Rule 4(4) of the Code, it appears to the
Court that there is force in the submission of Mr.Khosla, learned counsel
appearing on behalf of the petitioners. The learned Trial Court in the
impugned order despite of having noticed that neither written statement was
filed by deceased Smt.Ranjit Charles Singh nor the suits were contested by
her, still passed an order to bring on record the legal representatives of the
deceased mainly on the reason that the deceased sent her affidavit along with
documents to the Court and in order to clarify with regard to veracity of the
said documents. The Court felt that the appearances of legal representatives
of the deceased are necessary in order to complete the adjudication of the
said suits.
12. I agree with Mr.Khosla that the rejection of the application under
Order XXII Rule 4(4) of the Code filed by his client is not correct because
the legal representatives of the deceased cannot be expected to prove or
disprove an oral agreement of which specific performance is sought. The
law is well settled that the legal representatives cannot take a stand different
when the deceased herself did not file the written statement and did not
contest the suits.
13. Therefore, the impugned orders passed in both petitions are legally
incorrect and contrary to law and facts.
14. Under these circumstances, the prayer made in the application to
exempt the petitioners from bringing on record the legal representatives of
the deceased is allowed.
15. Both petitions, being CM(M) No.1161/2012 and CM(M)
No.1182/2012, are disposed of accordingly. No costs.
(MANMOHAN SINGH)
JUDGE
APRIL 04, 2014
