Delhi High Court

Juggal K Sood vs Kamal K Sood on 1 December, 2014

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 484/1998
       JUGGAL K SOOD                                         ..... Plaintiff
                    Through:           Ch. Shamsuddin Khan, Adv.

                          versus
       KAMAL K SOOD                                      ..... Defendant
                          Through:     Mr. Rajat Aneja, Adv. with
                                       Mr.Vijay Kasana, Adv. for D-2.
       CORAM:
       HON'BLE MR. JUSTICE G.P. MITTAL
                    ORDER

       %            01.12.2014

IA No.7875/2014      (O.XXII Rule 9 CPC) in CS(OS) 484/1998;
IA No.7876/2014      (delay) in CS(OS) 484/1998 ;
IA No.7877/2014      (O.XXII Rule 4 CPC) in CS(OS) 484/1998 &
IA No.7878/2014      (delay) in CS(OS) 484/1998

1. These applications are for substitution of the legal representatives

(LRs) of the deceased Defendant no.1 and for setting aside the order

of abatement as the application for substitution of LRs was not moved

in time. Since the application for setting aside the abetment was also

not moved in time, an application for condonation of delay in moving

the application for setting aside of the abatement has also been moved.

2. As per the averments made in IA No.7878/2014, there is a delay of

439 days in moving the application. The sum and substance of the

applications moved by the Plaintiff for delay in moving the application

for substitution and for setting aside the abatement are given in paras

5,6 and 7 of the application, on which much stress is led by the learned

counsel for the Plaintiff. Paras 5,6 and 7 of the application are

extracted hereunder:-

"5. Since the Plaintiff resides in USA, he came to know of the whereabouts of the Legal Representatives of Defendant no.1 recently when he visited India on 10.04.2014. He immediately contacted his counsel and gave the full details of the Legal Representatives of Defendant no.1.

6. That the counsel for Plaintiff immediately preferred the application for setting aside abatement order dt. 08.05.2013 against Defendant no.1 before this Hon'ble Court.

7. That the setting aside abatement order dated 08.05.2013 against Defendant no.1 is necessary for adjudication of the case. So order may be set aside against Defendant no.1 in the interest of justice."

3. The applications have been opposed by Defendant no.2, who is wife

of Defendant no.1. Learned counsel for Defendant no.2 strongly

opposes the applications. He urges that on hearing about death of

Defendant no.1 on 01.11.2012, the Plaintiff was in India on

02.11.2012. He also attended the 'kriya' ceremony of the deceased on

03.11.2012 at Balasahed Gurudwara. The Plaintiff appeared before the

Court on 07.11.2012 when he and his counsel were informed about the

death of Defendant no.1 having occurred on 01.11.2012.

4. The learned counsel for the Plaintiff relies on Collector, Land

Acquisition Anantnag & Anr. V. Mst. Katiji & Ors., 1987 (28) ELT

185 (SC), Bhag Singh & Ors. V. Major Daljit Singh & Ors., 1987 (32)

ELT 258 (SC) and State of U.P. v. Bahadur Singh & Ors., AIR 1985

SC 845; to urge that there was no negligence on the part of the

Plaintiff in taking steps for substituting the legal heirs of deceased

Defendant no.1. As soon as the Plaintiff came to know of the legal

heirs, the application was immediately moved.

5. The record, however, speaks to the contrary.

6. First of all, I would like to extract the order dated 07.11.2012 passed

by the learned Joint Registrar which records that the Plaintiff and his

counsel had appeared before the Joint Registrar after passing of the

order and were informed about the order and that Defendant no.1 has

expired on 01.11.2012. Defendant no.1 is none other than the real

brother of the Plaintiff. The order dated 07.11.2012 reads as under:-

"Matter was today listed for plaintiff's evidence at 2:15. On request of Ld. counsel for defendant No.1 matter has been taken up in the morning session. It has been informed by Ld. counsel for defendant No.1 that defendant No.1 has expired on 01.11.2012. He has placed on record cremation slip of defendant No.1. It has been submitted that plaintiff and defendants are brothers and plaintiff is well aware of the death of defendant No.1 as well as his legal heirs.

Renotify for further proceedings on 12th February, 2013.

HEMANI MALHOTRA (DHJS) JOINT REGISTRAR

NOVEMBER 07, 2012

At this stage, Dr.Chaudhary Shamsuddin Khan with Mr.Jamal Akhtar and plaintiff in person have appeared who have been apprised of the order."

7. As against this, the averments made in the instant applications are:-

"2. That on 01.11.2012, the defendant no.1 died, the plaintiff came to know of it later on through reliable sources of the factum of death."

8. The Plaintiff has intentionally concealed from the Court not only that

he was informed by the Joint Registrar on 07.11.2012 of the factum of

death of Defendant no.1 having taken place on 01.11.2012 but also

that he had attended Kriya ceremony which had taken place on

03.11.2012.

9. In para 5 of the application, which has been extracted above, the

Plaintiff vaguely states that he came to know about whereabouts of the

legal representatives of Defendant no.1 recently when he visited India

on 10.01.2014. It has nowhere been stated in any of the applications as

to what prevented the Plaintiff to find out the whereabouts of the

children of his deceased brother, particularly when all the family

members were present at the time of Kriya on 03.11.2012. More so,

Defendant no.2 is the widow of Defendant no.1 and sister-in-law of

the Plaintiff. Not only this that the Plaintiff was highly negligent and

dormant in taking steps for substitution of the legal representatives of

his own deceased brother, even the conduct of the case before the

death was highly dilatory which is evident from some of the orders

passed by learned Joint Registrar.

10. By an order dated 09.08.2010, last opportunity was granted to the

Plaintiff to produce his evidence, subject to payment of costs of

Rs.5,000/-. The order dated 09.08.2010 is extracted hereunder:-

"No witness of the plaintiff is present today and it has been stated that the witness Mr. Jugal Kishore Sood is abroad and due to certain medical tests he is unable to come to India.

Not only the present matter is of the year 1998 but also the previous order shows that there is gross negligence in pursuing the present matter on the part of the plaintiff. Moreover, in case the main witness of the plaintiff was not well then the plaintiff could have very well summoned some other witness as mentioned in his list of witnesses.

I, accordingly, grant one last opportunity for leading plaintiff evidence subject to a cost of Rs.5,000/- to be deposited with Delhi High Court Legal Services Authority by plaintiff."

11. On 08.09.2010, the conduct of the Plaintiff was again noted by the

Learned Joint Registrar when he closed the evidence of the Plaintiff.

Subsequently, OA No.60/2010 was filed. The Plaintiff was again

permitted to produce his evidence, subject to payment of costs of

Rs.5,000/-.

12. From the orders passed by the Court and the orders by learned Joint

Registrar from time to time, it is evident that the costs imposed on the

Plaintiff did not deter him from conducting the proceedings at his will

and that is why he had the audacity to say that he came to know of

death of his brother, Defendant no.1 through reliable sources and that

he came of know about LRs of his deceased brother recently and

moved this application for substitution after a delay of 439 days.