Smt Asgari Begum (Deceased) Thr ... vs Akhlaq Meer
2014 Latest Caselaw 3030 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   C.R.P. 218/2013 & C.M.NO.19483/2013 (Stay)

%                                                          10th July, 2014

SMT ASGARI BEGUM (DECEASED) THR LRS         ......Petitioner
                 Through: Mr.H.C.Kapoor, Advocate.


                             VERSUS

AKHLAQ MEER                                              ...... Respondent

                             Through:    Mr.Ashok Gurnani, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This revision petition under Section 115 of Code of Civil Procedure,

1908 (CPC) impugns the order of the Trial Court dated 27.8.2013, which has

allowed the application under Order 22 Rule 4 CPC read with Section 5 of

the Limitation Act, 1963 moved by the respondent/plaintiff for bringing on

record the legal heirs of the deceased defendant Smt.Asgari Begum. The

application was moved to bring on record the legal heirs in a suit for

possession and mesne profits, which was filed by the respondent/plaintiff

against Smt.Asgari Begum, and who is now represented by her legal heirs.

2. There is a chequered history of this case and which needs to be stated

in order to appreciate the validity or otherwise of the impugned order dated

27.8.2013. The defendant Asgari Begum expired on 19.12.2003 and

thereafter an application under Order 22 Rule 4 CPC was moved giving the

name of only son of the deceased Smt.Asgari Begum, inasmuch as details of

other legal heirs were not known to the respondent/plaintiff. The

respondent/plaintiff thereafter moved an application under Order 6 Rule 17

CPC disclosing the names of all the legal heirs of the deceased defendant.

Really this application was only an additional affidavit to the pending

application under Order 22(4) as the application stated the names of other

legal heirs of Asgari Begum. This application for amendment was however

dismissed on 24.9.2005 and whereafter the LR nos. 1 & 2 who had appeared

on record moved an application for abetment of the suit on the ground that

the other legal heirs had not been brought on record. This application was

allowed by the trial court vide order dated 06.3.2009 holding the suit to have

been abated.

3. Actually the order dated 06.3.2009 no doubt stated that the suit has

been abated, really, it was an order for dismissing the suit in default as

abated because none had appeared on behalf of the respondent/plaintiff on

06.3.2009. This is noted in the order of a learned Single Judge of this Court

dated 18.12.2009 in C.M(M)No.1495/2009 filed by the respondent/plaintiff

against the petitioner herein challenging the order dated 6.3.2009, and by

which order dated 18.12.2009 this Court gave liberty to the

respondent/plaintiff to move an application for restoration of the suit. The

order of this Court dated 18.12.2009 in C.M(M) No. 1492/2009 reads as

under:

" The petitioner being the plaintiff is aggrieved by the order dated 6th March, 2009 of the Trial Court dismissing the suit filed by the petitioner/plaintiff as abated. On the demise of the respondent/defendant, the petitioner/plaintiff applied for substitution of two legal representatives of the respondent/defendant. However, the said legal representatives disclosed that the respondent/defendant has left other legal heirs also and liberty was given to the petitioner/plaintiff to apply for substitution of the other legal representatives also. The petitioner did not take any steps in this regard for a long period of four years. When the suit was listed on 6th March, 2009, none appeared for the petitioner/plaintiff before the Trial Court. Notwithstanding that the petitioner/plaintiff was in default of appearance, the Trial Court dismissed the suit as abated.

The counsel for the petitioner/plaintiff has contended that since some of the legal representatives had been brought on record, the suit could not have been dismissed as abated. Though there may be merit in the said plea of the petitioner/plaintiff but the fact remains that none had appeared for the petitioner/plaintiff before the Trial Court on 6th March, 2009. No application also for restoration of the suit is informed to have been filed. The Trial Court has/had no occasion to deal with the pleas of the petitioner/plaintiff. The order dated 6th March, 2009 of the

trial court dismissing the suit, in default of appearance of petitioner/plaintiff, even if as abated, would remain a dismissal under Order 17 Rule 2 of CPC only, as held in Mohandas Vs. Ghisia Bai AIR 2002 SC 2436 and Prakash Chander Manchanda Vs. Janki Manchanda AIR 1987 SC 42. In the circumstances, it is deemed appropriate that the petitioner/plaintiff moves appropriate application before the Trial Court first before approaching this Court. The filing of this petition shall not come in the way of the petitioner/plaintiff agitating the same pleas, as taken herein, if remains aggrieved from the order of the Trial Court.

With the aforesaid observations, this petition is disposed of."

4. The respondent/plaintiff pursuant to the order of this Court dated

18.12.2009 in the suit moved an application on 19.1.2010 wherein the

aforesaid facts were stated including of the fact that an application under

Order 22 Rule 4 CPC was already pending wherein name of one legal heir

i.e the son of the defendant was mentioned and which application should be

decided and suit restored by re-starting the trial. Any further orders as

deemed fit were also prayed.

5. By the impugned order dated 27.8.2013, the trial court has allowed the

application under Order 22 Rule 4 CPC read with Section 5 of the Limitation

Act and impleaded the legal heirs of the sole defendant Asgari Begum, and

who are the petitioners before this Court. By the impugned order further

orders have also been passed because one of the legal heirs namely, Salma

Begum, daughter of the defendant had died and whose legal heirs thus were

also brought on record by the impugned order. An application under Order

32 Rule 3 CPC was also allowed for appointment of the next friend of one

minor legal heir, Rafia Begum.

6. Learned counsel for the petitioners have very strenuously argued

before this Court that the Court below has committed a grave error in

passing the impugned order because the respondent/plaintiff pursuant to the

order of the learned Single Judge dated 18.12.2009 in CM(M) No.1495/2009

did not file an application for restoration of the suit, which was dismissed in

default, but had only filed the application dated 19.1.2010 which only sought

allowing of the application and restoring of the suit by allowing of the

pending application under Order 22 Rule 4 CPC. What is essentially argued

is that no reason has been given in the application dated 19.1.2010 moved by

the respondent/plaintiff as to the sufficient cause and reason for non-

appearance of any advocate on behalf of the respondent/plaintiff on

06.3.2009 when the suit was held to have been dismissed as abated, and

which order dated 6.3.2009 is actually a dismissal in default order as

observed by this Court in its order dated 18.12.2009 in C.M(M)

No.1495/2009.

7. I am unable to agree with the arguments urged on behalf of the

petitioners inasmuch as there was no requirement of the respondent/plaintiff

to give reasons for non-appearance on 06.3.2009 and it was enough for the

respondent/plaintiff to state that the suit should not have been dismissed as

abated on account of non-appearance because there was already a pending

applications under Order 22 Rule 4 CPC. In my opinion, this is sufficient

reason given for seeking restoration of the suit because Courts cannot

dismiss the suit as abated by passing an order of default of appearance once

on record there is admittedly in existence an application for bringing on

record the legal heirs of Smt.Asgari Begum.

8. An order which is passed for bringing on record the legal heirs is only

to ensure that litigation does not proceed in the absence of appropriate

representation. It is very much possible that all the legal heirs of the

deceased may not be known, and therefore, the plaintiff's application for

bringing on record the legal heirs of deceased defendant only mentioned

those legal heirs which were in plaintiff's knowledge. The plaintiff can do

no more. If there are other legal heirs who have to come on record, and

whose details are available subsequently, those legal heirs can be brought on

record including under Order 1 Rule 10 CPC which pertain to addition of

necessary parties/defendants. The technical provisions of Order 22 Rule 4

CPC cannot be hijacked by using it to frustrate the only purpose thereof and

which is that, who are the legal representatives of the parties to a legal

proceeding and they should be brought on record. Obviously, the petitioners

would like to challenge the impugned order of setting aside the abatement

and bringing on record the legal heirs because the suit for possession is filed

against them and in which suit their predecessor-in-interest/Smt.Asgari

Begum had claimed rights by virtue of adverse possession in the suit

property, however, once there is a legal provision, and within equitable

consideration the facts and law can be liberally interpreted, there is no

reason why a hyper-technical view should be taken. Therefore I hold that

there is no defect in the application dated 19.1.2010 merely because the

order of the learned Single Judge dated 18.12.2009 required filing of an

application for restoration of the suit dismissed in default.

9. Supreme Court in the judgment in the case of Municipal Corporation

of Delhi Vs. R.P.Khaitan & Anr. 79 (1999) DLT 555 (SC) has held that the

headings of the petition should not frustrate the petition and the courts

should treat the petition by reading its substance and not only by its heading.

It has been similarly held by the Supreme Court in another judgment in the

case of P.K.Palanisamy Vs. N.Arumugham & Anr. (2009) 9 SCC 173. The

object of law is that on technical ground, the cases should not be dismissed.

10. In view of the above, I find no illegality in the impugned order dated

27.8.2013, and this petition is therefore dismissed, leaving the parties to bear

their own costs.

VALMIKI J. MEHTA, J.

JULY 10, 2014 KA