Delhi High Court
Sh. Salek Ram And Anr. vs Sh. Dharma (Since Deceased) ... on 23 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 303/2013 and C.M. No.4412/2013
% 23rd July, 2014
SH. SALEK RAM AND ANR. ......Petitioners
Through: Mr. S.K. Verma, Advocate.
VERSUS
SH. DHARMA (SINCE DECEASED) THROUGH LRS & ANR.
...... 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. This petition under Article 227 of the Constitution of India
impugns the order of the trial court dated 11.2.2013 whereby the application
filed by the legal heirs of the deceased defendant no.2 for their being
impleaded as parties was allowed. By the same application, condonation of
delay in filing the application was also condoned. I may state that what are
the exact number of days of delay is not found on the record, but, it would
C.M.(M) No.303/2013 Page 1 of 4
be around at best of two/three months inasmuch as the defendant no.2
expired on 6.6.2012 and the application was moved in the year 2012 itself.
2. The subject suit was a suit for injunction whereby the
plaintiffs/petitioners claim rights in the suit property admeasuring 500 sq yds
situated in khasra no.302 of village Karawal Nagar, Gali no.1, Delhi.
Petitioners/plaintiffs claimed to have purchased the property from the
defendants by paying consideration and execution of documents on
21.12.2007.
3. Defendants filed their joint written statement and have denied
the claim of the petitioners/plaintiffs by pleading that a fraud has been
played upon the defendants and the documents were got executed by fraud.
4. In view of the above, it is clear that in such a suit for injunction
right to sue survives against the legal heirs of the defendant no.2 inasmuch
as in the written statement the rights of the petitioners/plaintiffs in the suit
property were denied.
5. I am constrained and pained to note that the counsel for the
petitioner in the course of arguments was found to be repeatedly misleading
this Court. Firstly, the argument was that the defendant no.3's legal heirs
C.M.(M) No.303/2013 Page 2 of 4
have been brought on record by the impugned order, and defendant no.3 was
only a proforma party, however, when the impugned order was read it was
found that legal heirs not of defendant no.3 but of defendant no.2 were being
brought on record, and, the defendant no.2 was not a proforma party because
cause of action in the suit as also the reliefs were claimed in the suit against
all the three defendants including defendant no.2. The next aspect on which
the counsel for the petitioners/plaintiffs again sought to mislead this Court
was by stating that the defendant no.2 in his written statement has admitted
the case of the petitioners/plaintiffs. However, when the written statement
was gone through, and which is a joint written statement by all the
defendants, it is clear that there is no admission but in fact a very vehement
contest of the suit by the defendants. Finally, counsel for the
petitioners/plaintiffs argued that right to sue does not survive but I fail to
understand this argument because once rights of parties in an immovable
property are in issue, the right to sue survives on the death of the defendant.
6. In view of the above, it is clear that the impugned order is
unimpeachable. The present petition is an abuse of the process of law and is
accordingly dismissed with costs of Rs.20,000/-, and which costs shall be
paid to the Delhi High Court Legal Aid Services Committee within a period
C.M.(M) No.303/2013 Page 3 of 4
of four weeks from today. The deposit of costs shall be a condition
precedent to the petitioners/plaintiffs pursuing their suit in the court below.
JULY 23, 2014 VALMIKI J. MEHTA, J.
Ne
