Delhi High Court
Dinesh Kumar @ Deepak vs Shiv Kumar & Ors. on 4 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 40/2014
% 4th August, 2014
DINESH KUMAR @ DEEPAK ......Petitioner
Through: Mr. Parthiv J Mehta and Mr. Vipul
Dubey, Advocates.
VERSUS
SHIV KUMAR & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 778/2014(delay of 23 days)
For the reasons stated in the application, delay of 23 days is allowed.
CM stands disposed of.
CM(M) No. 40/2014 & CM No. 777/14 (stay)
1. The challenge by means of this petition under Article 227 of the
Constitution of India is to the impugned orders of the trial court dated
4.9.2012 and 21.9.2013 by which the trial court has passed orders for
CM(M) 40/2014 Page 1 of 4
bringing on record ie substituting the applicants as plaintiffs in place of the
existing plaintiffs. The applicants claimed that on them rights have devolved
in terms of an MOU to which the existing plaintiffs are parties.
2. In para-9 of the impugned order dated 4.9.2012 the relevant clause of
the MOU is reproduced and this para 9 reads as under:-
"9. The MOU as alleged by the applicants is filed on record.
By going through the MOU it reveals that the plaintiffs
have assigned their interest in favour of applicants. Para
F of the MOU is relevant in this regard:
"That it has further been agreed and decided by the
parties that land involved in civil suit filed by the First
Party against Avtar Singh, the lessee in respect of land
underneath the superstructure shall remain the exclusive
property of the First Party and the land involved in case
title, "Shiv Kumar & Anr,. Vs. Dinesh Kumar" in which
Dinesh Kumar is leassess in respect of the land
underneath the superstructure shall go to the Second
Party and the Second Party shall be free to get their name
substituted in place of the First Party in the Court, if they
so desires."
3. Supreme Court in the case of Dhurandhar Prasad Singh Vs. Jai
Prakash University & Ors., 2001 (6) SCC 534 has held that there is no
abatement when there is devolution of interest during the pendency of the
suit under Order 22 Rule 10 CPC, and which position is unlike the one under
Order 22 Rules 3 and 4 wherein there is an abatement. Therefore, with
CM(M) 40/2014 Page 2 of 4
respect to an application under Order 22 Rule 10 CPC there is no limitation
because there can be no abatement.
4. Learned counsel for the petitioner sought to place reliance upon a
judgment of a learned Single Judge of this Court in the case of Lal Chand
Public Charitable Trust Vs. Delhi Wakf Board & Ors. 189(2012) DLT 397
to argue that the application under Order 22 Rule 10 CPC should be
dismissed, including for delay and laches, however, each case depends on its
own facts with respect to substitution on account of devolution, and in the
present case, the MOU in question is dated 3.7.2008 and the application
under Order 22 Rule 10 CPC was filed on 12.4.2012 and the existing
plaintiffs are not opposing their substitution.
5. I may note that issue of delay and laches would arise if there is an
interse contest between the existing plaintiff and those persons who are
sought to be brought on record by an application under Order 22 Rule 10
CPC, however in the present case, the existing plaintiffs are not disputing
the case of the applicants in the application under Order 22 Rule 10 CPC. I
therefore fail to understand as to how any prejudice will be caused to the
petitioner/defendant by substitution of the plaintiffs, because all issues of
merits will in any case be decided after trial in the suit and the
CM(M) 40/2014 Page 3 of 4
defendant/petitioner can always prove his defence on merits for seeking
dismissal of the suit.
6. Powers under Article 227 of the Constitution of India are
extraordinary powers and meant to be exercised only if there is a gross
injustice because of the orders passed by the trial court, but in the present
case, there is no prejudice to the petitioner/defendant, and therefore, I do not
find any reason to exercise discretionary jurisdiction under Article 227 of the
Constitution of India.
Dismissed.
AUGUST 04, 2014 VALMIKI J. MEHTA, J.
ib
