Krishan Kumar Bansal (Since ... vs Shyam Lal Bansal
2014 Latest Caselaw 3773 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) No. 57/2013 & CM No. 821/2013 (stay)

%                                                    19th August , 2014

KRISHAN KUMAR BANSAL (SINCE DECEASED) THR. HIS LRS.
                                               ......Petitioners
                Through: Mr. H.C.Mittal and Mr. Amit Kumar,
                          Advocates.


                          VERSUS

SHYAM LAL BANSAL                                           ...... Respondent
                          Through:       Mr. S.C.Singhal, Advocate.

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 first appellate court

dated 25.4.2012 by which the first appellate court has set aside the order of

the trial court dated 24.12.2011 by which the trial court had dismissed the

application under Order 22 Rule 3 CPC filed by the respondent-plaintiff for

bringing the legal heirs of the deceased petitioner/defendant on record in the

subject suit.


CMM 57/2013                                                                    Page 1 of 3
 2.    The subject suit is a suit for permanent injunction with respect to an

immovable property, and consequently what are the rights which are claimed

in an immovable property, would be very much in issue in the suit, if not

explicitly, definitely by implication, and accordingly since the rights pertain

to an immovable property, the right to sue will survive on the death of the

defendant.


3.    Learned counsel for the petitioner wanted me to go through the

averments made in the written statement on the merits of the defence,

however, merits of the matter have not to be examined while dealing with an

application to substitute the legal heirs of the defendant and at the stage of

dealing with an application under Order 22 Rule 3 CPC what has only to be

seen is that if the content of the plaint are taken as correct whether the right

to sue survives. Because in the present suit the issue is with respect to rights

claimed in an immovable property, the right to sue, in terms of the

averments in the plaint, does survive.


4.    I put it to counsel for the petitioner that if the right to sue does not

survive as argued by the petitioners who are the legal heirs of the deceased

defendant/petitioners, then are the petitioners ready to make a statement that

they will not sell, transfer or alienate the suit property, but obviously, to this

CMM 57/2013                                                                    Page 2 of 3
 aspect counsel for the petitioners did not want to give such a statement, thus

showing that the right to sue survives qua the immovable property in

question namely B-3/9, Janak Puri, Delhi.

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