Sh. Rajpal vs Smt. Prakash Devi & Ors.
2014 Latest Caselaw 5008 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No.912/2014

%                                                     01st October, 2014

SH. RAJPAL                                                    ......Petitioner
                           Through:      Mr.Daniel Allen, Advocate.

                           VERSUS

SMT. PRAKASH DEVI & ORS.                                      ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Of course there is a provision of Article 227 in the Constitution of

India, and this Court cannot prevent filing of frivolous petitions, but, courts

have to as per the facts of the case pass orders, and which this Court is

doing.

2. Challenge by this petition under Article 227 of the Constitution of

India is to the impugned order dated 10.7.2014 which has condoned the

delay of just 25 days in filing the application to bring on record the legal

heirs of the deceased respondent no.1 in the first appeal. By the short

impugned order of just about two pages, an application under XXII Rule

3(1) of the Code of Civil Procedure, 1908 (CPC) has been allowed and the

legal heirs of respondent no.1 in the appeal have been brought on record.

3. I note that this petition as filed is totally bereft of the requisite

pleadings as also the necessary documents filed in the trial court, because,

not only the application for bringing on record the legal heirs of respondent

no.1 is not filed, even the application which is filed for condonation of delay

of 25 days has not been filed.

4. Counsel for the petitioner argues that the application for condonation

of delay has been filed one year after filing of the application for bringing on

record the legal heirs, but I fail to understand as to how this will make any

difference because whenever the application is filed the same still will be an

application seeking condonation of delay of 25 days only for bringing on

record the legal heirs of the respondent no.1.

5. In fact, the Supreme Court has clearly observed that an application

which is filed for bringing on record the legal heirs after the period of 90

days and the subsequent 60 days period in which abatement takes place, that

application implicitly will include a prayer to set aside the abatement and

condonation of delay and bringing on record the legal heirs i.e an application

for bringing on record the legal heirs includes therein the relief for setting

aside the abatement/condonation of delay in brining on record the legal

heirs.

6. The object of CPC in not making certain orders appealable, becomes

more than abundantly clear from cases such as the present case, and this

petition challenging a non-appealable order under Article 227 of the

Constitution of India is wholly frivolous to say the least. Dismissed.

VALMIKI J. MEHTA, J OCTOBER 01, 2014 KA