Nadira Begum vs Smt. Nafisa & Ors.
2014 Latest Caselaw 3772 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No. 919/2013
%                                                     19th August , 2014

NADIRA BEGUM                                               ......Petitioner
                           Through:      Mr. K.D.Saini and Mr. Vikram Saini,
                                         Advocates.

                           VERSUS

SMT. NAFISA & ORS.                                            ...... Respondents
                           Through:      None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    The challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order of the trial court dated

31.7.2013 which has allowed an application under Order 22 Rule 3 of Code

of Civil Procedure, 1908 (CPC) read with Section 5 of the Limitation Act,

1963 for substitution of the legal heirs of plaintiff no.1.


2.    A reading of the impugned order shows that the reason for delay in

filing of the application was that the earlier counsel in spite of being told of

the death of the plaintiff no. 1 did not move an application to bring on record

the legal heirs of the deceased plaintiff no. 1. Accordingly, the trial court
CM(M) 919/2013                                                                 Page 1 of 3
 has held that for lapse on the part of the counsel, party should not suffer and

consequently legal heirs were brought on record.


3.     I may note that the subject suit is a suit for possession, mesne profits

etc and in such a suit right to sue survives upon the legal heirs of plaintiff

no.1. Legal heirs of plaintiff no.1 had to be brought on record also because

there were not one but two plaintiffs in the suit, and the plaintiff no.2 was

continuing to pursue the suit, till the subject application was filed and

allowed for bringing on record the legal heirs of plaintiff no.1.

4.     Powers under Article 227 of the Constitution of India are not appellate

powers. Also, powers under Article 227 of the Constitution of India as is

settled law, are not to be exercised unless injustice results because of an

impugned order. Even if an order is illegal, as long as there is no injustice,

courts do not exercise discretionary powers under Article 227 of the

Constitution of India. In this case I may note that in fact petitioners did not

even file a reply to the applications for bringing on record the legal heirs and

for condonation of delay, and therefore the contents of the applications were

deemed to be admitted under Order 8 Rule 10 CPC read with Section 141

CPC.



CM(M) 919/2013                                                               Page 2 of 3
 5.    In view of the above, there is no merit in the petition and the same is

therefore dismissed, leaving the parties to bear their own costs.




AUGUST 19, 2014                               VALMIKI J. MEHTA, J.

ib