V S Venugopalan & Anr vs M/S Density & Ors
2016 Latest Caselaw 1707 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                          FAO 334/2014

                                           Decided on: 2nd March, 2016

       V S VENUGOPALAN & ANR                             ..... Appellants
                           Through:   Mr. J.R. Bajaj, Advocate
                           versus
       M/S DENSITY & ORS                           ..... Respondents
                           Through:   Mr. R. Vasudevan, Advocate for
                                      R-5.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant against the order dated

06.08.2014 by virtue of which three applications of the appellants

have been dismissed. These three applications were under Order

22 Rule 3; application under Section 5 of the Limitation Act and an

application under Order 22 Rule 9 CPC for setting aside the

abetment proceedings.

2. Before considering the legality of the impugned order, it may be

pertinent here to give a brief background of the case. The

deceased/appellant Col. Dr. A.G. Rangaraj filed a suit for recovery

of possession, mesne profits and permanent injunction against M/s.

Density, Mr. Dinesh Chandra Pathak, Mr. Jagjit Singh Randbawa,

M/s. Trinity Global, Mrs. Amita Rangaraj & Mr. Balbir Singh

Bajaj through his brother-in-law and a Power of Attorney, named

V.S. Venu Gopalan. Apart from claiming possession he had also

claimed recoveries of certain money on account of use and

occupation charges and also claimed damages/mesne profits @

Rs.1,81,650/- per month.

3. During the pendency of the suit, the plaintiff had died. However,

no applications for substitution of LRs had been filed and the

proceedings were treated to have abated. After the abatement of the

proceedings, power of attorney holder V.S. Venu Gopalan, filed

these three applications. The averments in the three applications are

almost similar.

4. It has been stated in the applications that Col. A.G. Rangaraj

passed away on 23.03.2009 at Bangkok, Thailand. The death

certificate of the deceased was obtained on 27.03.2009. It is stated

that the applicant came to know about the execution of the Will

which was duly registered by the deceased Col. A.G. Rangaraj. He

also learnt about the fact that he, the attorney had been appointed

as the executor of the Will as a consequence of which he visited the

Advocate of the deceased Col. A.G. Rangaraj, namely, Shri N.N.

Goel at Dehradun and collected the original Will. On the basis of

these facts, it has been stated that the delay was caused and so far

as the filing of application for substitution of the LRs is concerned,

it is stated that the appellant in the capacity of attorney has every

right, power and duty to prosecute the matter and therefore, the

abatement proceedings be set aside and the appellant be permitted

to prosecute the matter as he has right and power to do so. He has

further stated that he has already obtained a probate on the basis of

the Will and the only remaining thing to be done by him is the

payment of duty and which will be done in due course and by

virtue of the aforesaid Will a life interest has been created in favour

of the widow of the deceased/testator and thereafter the property is

to pass on to the appellant/applicant. It has also been stated that the

only legal heir who survived the deceased/testator and the plaintiff

was his widow, who is already respondent No.5 in the present

appeal.

5. I have carefully considered the submission of the learned counsel

for the appellant. I have also gone through the record including the

impugned order as well as the averments made in the application.

6. Before an application is allowed, it must meet the requirement of

the section under which it is filed. Application under Order 22

Rule 3 CPC lays down that if the plaintiff or one of the plaintiffs

dies and the right to sue survives then the legal representatives of

the deceased/plaintiff can be substituted in his place. But these

averments have to be made in the application to satisfy the

requirement of pleadings. In addition to this, the names, addresses

and details of the other legal heirs have to be furnished in the

application. In addition to his, such an application for substitution

has to be filed within a period of 90 days from the death of the

plaintiff.

7. In the instant case the application for substitution of LRs cannot be

allowed for two reasons, first, the applicant/appellant is claiming

himself to be the attorney of the deceased/testator on whose behalf

he had filed the suit. But that would not be a ground for

substitution of his name. The reason for this is that the power of

attorney of the applicant comes to an end the moment the principal

dies, i.e. the plaintiff. The second drawback in the application

under Order 22 Rule 3 CPC because of which the application

cannot be allowed is that there is no averment made in the

application as to who are the surviving legal heirs of the deceased

nor the details are given therein. Merely because the deceased is

survived only by his widow, who is a party to the suit does not

absolve the applicant/appellant from disclosing these details in the

application. It is also not mentioned in the application that the

right to sue survives. On the contrary, what is stated is that the

applicant/appellant is the executor of the Will but that does not

entitle him to substitution of his name because by being an

executor he does not become a legal representative. His job as an

executor is to give effect to the wishes of the deceased/testator

which he could do without being impleaded as a party to the

present proceedings. Therefore, the application of the appellant for

substitution of LRs is totally bereft of any merit reasoning and

cannot be allowed even if abatement of the proceedings against the

deceased/testator are set aside.

8. Similarly, the other two applications are not containing the basic

ingredients of the sections under which they have been filed.

9. In the application under Section 5 of the Limitation Act, 1963, it

has nowhere been stated that the facts averred in the application are

constituting sufficient cause for condoning the delay caused in

filing the application for substitution. Moreover, 'sufficient cause'

is a cause which is beyond human control. It has nowhere been

mentioned or shown as to how the application was filed belatedly

and what sufficient cause prevented the appellant from filing the

application within time more so, when he was power of attorney

hold and the suit itself was filed through him. Therefore, because

of this reasoning, I feel that the rejection of the three applications

by the learned trial Court cannot be found fault with.

10. There is no illegality or infirmity in the order which has been

passed by the learned trial Court and accordingly the appeal is

totally misconceived and the same is dismissed.

V.K. SHALI, J.

MARCH 02, 2016 vk