Delhi High Court
Union Of India vs Narender Singh Rathee And Anr. on 16 December, 2015
Author: Rajiv Shakdher
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 46/2012
UNION OF INDIA ..... Appellant
Through: Mr Ruchir Mishra, Mr Sanjiv Kr. Saxena
& Mr Mukesh Kr. Tiwari, Advs.
versus
NARENDER SINGH RATHEE & ANR ..... Respondents
Through: Mr Mohd. Rashid, Adv. for LRs of R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 16.12.2015
CM No. 8473/2015 (O. 22 R. 1 & 2 CPC by appellant)
1. This is an application moved to bring on record the LRs of respondent
no.1. The record shows that respondent no.1 expired, on 30.12.2011. The
information with regard to the same was brought to the notice of the counsel
for the appellant at the hearing held on 11.05.2012. Since, the counsel for
respondent no.1 Mohd. Rashid, was not aware of the details of the family
members of the deceased respondent no.1, he stated that the same will be
communicated to the counsel for the appellant, in writing, within a period of
one week of that date.
1.1 Thereafter, on 27.02.2013, when the matter came up before the court,
learned counsel for the appellant stated that since the counsel for deceased
respondent no.1 had not provided the details of Legal Representatives (i.e.
LRs), no steps could be taken in that behalf by him. The order further
records that the names of the LRs of respondent no.1 were supplied in court
to the counsel for the appellant. The relevant part of the order dated
27.02.2013, which records this aspect, reads as follows:
"..... The names of the LRs of respondent no.1 have now been
furnished by the learned counsel for the respondent. He,
however, states that he is not aware of their addresses. Let
steps be taken for substituted service of the remaining LRs,
returnable before the Jt. Registrar on 9th may, 2013...."
(emphasis is mine)
2. Thereafter, despite the matter being fixed on 09.05.2013 and
11.07.2013, no steps were taken by the appellant.
2.1 However, on 13.09.2013, quite curiously, when the matter was fixed
before the Registrar (Original), the counsel for the appellant stated that
though it is recorded in the order of 11.07.2013 that names have been given
to the counsel for the appellant, the said names were not supplied. It appears
that reference to order dated 11.07.2013 was a mistake, the order which
perhaps the learned Registrar (Original) wanted to refer to was order dated
27.02.2013.
3. Be that as it may, the position with regard to the appellant not moving
an appropriate application for bringing the LRs of deceased respondent no.1
on record continued to obtain till 07.05.2015, when for the first time the
captioned application was moved.
3.1 On that date, Mohd. Rashid, learned counsel for deceased respondent
no.1, was present in court, and he was given time to file a reply to the
captioned application.
3.2 On that very date the application filed on behalf of LRs of deceased
respondent no.1 (which is the other application and listed before me for
disposal i.e. CM No. 8444/2015), was also on record. This application has
been moved on behalf of the LRs of deceased respondent no.1 for dismissal
of the appeal on the ground that it has abated. Notice in this application was
also issued, which was accepted by the counsel for the appellant.
4. Mr Ruchir Mishra, learned counsel for the appellant, reiterates that
since the details of LRs of deceased respondent no.1 were not supplied, an
application for the said purpose, could not be moved at an earlier point in
time.
4.1 It is his submission that only when an application was moved by the
LRs of deceased respondent no.1, and a copy of the same was served on the
appellant, the details of LRs of respondent no.1 were revealed and,
consequently, the captioned application was moved. Mr Mishra further
submits that contrary to the order dated 11.05.2012, the LRs of respondent
no.1, in paragraph 2 of their reply to the captioned application, continue to
state that the details, along with the names and addresses, were supplied.
4.2 Mr Mishra also submits that on his request a court notice was issued
to Mohd. Rashid and, consequent thereto, on 09.02.2015, one Mr W.R.
Khan appeared, who indicated that he was a partner of Mohd. Rashid,
Advocate and had also represented the deceased respondent no.1 in
proceedings filed under Section 34 of the Arbitration & Conciliation Act,
1996.
4.3 The record shows, on that date, Mr W.R. Khan appears to have
submitted that on 27.02.2013, the names of LRs of deceased respondent no.1
were furnished to the counsel for the appellant, and that, he and his partner
were no longer in touch with LRs of respondent no.1 nor, were they aware
of their names and addresses. The Registrar on that date directed the
appellant to take steps to ascertain the names and address of the LRs of
respondent no.1, once again.
5. I have heard the learned counsel for the appellant, as well as Mohd.
Rashid. It is quite clear that, as per the record of this court, on 27.02.2013,
the counsel for the appellant was supplied with the names of the LRs of
deceased respondent no.1. The assertion of the learned counsel for the
appellant that names were not supplied, is contrary to the record. If that
position was correct, the appellant should have moved for rectification of the
order dated 27.02.2013. However, as the addresses of the LRs of respondent
no.1 were not supplied, the court on that date gave liberty to the appellant to
effect substituted service.
6. Mr Mishra's submission that the position taken by the appellant was
clarified in the subsequent proceedings, before the learned Registrar, cannot
be accepted, as the order dated 27.02.2013 continued to obtain on the record
in its original form. As a matter of fact, the Registrar seems to have not
noticed the order of the court dated 27.02.2013.
7. The other submission of Mr Mishra, that in the reply filed by the LRs
of deceased respondent no.1, they have incorrectly averred that they had
supplied both the names, as well as the addresses, even prior to 11.05.2012,
in my view, will not help the cause of the appellant for this reason. The suit
abates automatically, on expiry of the limitation period. The period of
limitation commences from the date of knowledge. In this case, as per the
court record, knowledge will have to be attributed to the appellant, if not
prior to 11.05.2012, as contended by the LRs of deceased respondent no.1,
certainly on 27.02.2013. The position taken by the appellant that it had not
been supplied the details of the address or that it did not have the details of
the names or the addresses of the LRs of deceased respondent no.1, as
indicated above, will not halt the journey of time once limitation stands
triggered.
8. In these circumstances, the application cannot be entertained. It is,
accordingly, dismissed.
CM No. 8444/2015 [O. 22 R. 4(3) r/w S. 151 CPC]
9. In view of the order passed in CM No. 8473/2015, the captioned
application has, in a sense, achieved its result. The appeal would stand
abated. The application is, accordingly, allowed.
FAO 46/2012 & CM No. 1617/2012 (Stay)
10. In view of the order passed in CM Nos. 8473/2015 & 8444/2015
above, the captioned appeal and the accompanying application will have to
be dismissed. It is ordered accordingly.
RAJIV SHAKDHER, J
DECEMBER 16, 2015
kk
