Delhi High Court
Sh. Ravi Nayyar vs Sh. Atam Prakash & Ors. on 26 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.274/2011
% 26th April, 2017
SH. RAVI NAYYAR ..... Appellant
Through: Mr. D.S. Rustagi, Advocate
with Mr. Apporva Rustagi,
Advocate.
versus
SH. ATAM PRAKASH & ORS. ..... 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. By this revision petition under Section 115 of the Code of
Civil Procedure, 1908 (CPC), the appellant Sh. Ravi Nayyar, the legal
heir of the original plaintiff Smt. Ram Piyari, impugns the order dated
19.11.2010 passed by the trial court. By the impugned order, the trial
court has dismissed the application under Order XXII Rule 3(2) CPC
to bring on record the appellant as a legal heir of the deceased plaintiff
Smt. Ram Piyari.
2. The deceased plaintiff Smt. Ram Piyari filed the subject
suit for declaration and for cancellation of the sale deed dated
12.10.1971 executed by the defendant no.1 in the suit as an attorney of
his deceased father Sh. Gian Chand. This suit was at the stage of
plaintiff's evidence, as informed to this Court by the counsel for the
appellant, when the plaintiff Smt. Ram Piyari expired. Smt. Ram
Piyari expired on 11.12.2007. Hence the present appellant moved the
application for substituting himself as the legal heir of the deceased
plaintiff Smt. Ram Piyari who was an issueless widow and since Smt.
Ram Piyari had left a registered Will dated 19.4.1999 in favour of the
appellant/applicant.
3. The trial court by the impugned order has dismissed the
application on the ground that it is filed after a period of two years of
the death of the plaintiff i.e much beyond the period of limitation.
Trial court has also observed that the appellant/applicant had not filed
even the photocopy of the Will dated 19.4.1999 before the trial court.
Trial court disbelieved the case of the appellant/applicant that he was
unaware of the proceedings and hence could not file the application.
Trial court has also observed that no explanation has been given as to
why the previous counsel for the deceased Smt. Ram Piyari did not
take steps to implead her legal heirs since 2007.
4. I may note that the appellant/applicant has filed in this
Court copy of the registered Will executed by the deceased Smt. Ram
Piyari in favour of the appellant/applicant. This is a registered Will,
and therefore, the observation of the trial court that there is no Will on
record would stand satisfied on account of filing of copy of this
registered Will of Smt. Ram Piyari dated 19.4.1999 in this Court. The
observations of the trial court that the application is delayed is
undoubtedly a matter of fact, however, the Court had to see the reasons
given for condonation of delay. Reasons given by the
appellant/applicant was that he was unaware of the present case. There
is no reason to disbelieve this case of the appellant/applicant inasmuch
as the deceased was an issueless widow and it is not necessary that
everything and every matter of the deceased plaintiff would be known
to the appellant/applicant. Appellant/applicant has rightly stated that
only when he received a registered letter from the Advocate of the
deceased plaintiff only in October, 2009 that he came to know about
the subject suit and thereafter the present application was filed on
15.10.2009 i.e within seven days.
5. In my opinion, therefore there are sufficient reasons for
condonation of delay because the present is a case where there are no
natural legal heirs but the legal heir who is a relative of the deceased is
a legal heir on account of the registered Will. Also, the trial court was
unjustified in observing that the earlier counsel could have filed an
application to bring on record the legal heirs because not only counsel
did not have duty to file an application for impleading the legal heirs
unless so instructed by the litigant but also that an application could
only be moved if the Advocate would have known that the present
appellant/applicant is the sole legal heir of the deceased plaintiff in
terms of the registered Will dated 19.4.1999 and which is not the
finding of the trial court.
6. In view of the above, this revision petition is allowed.
Impugned order dated 19.11.2010 is set aside. Delay in filing of the
application under Order XXII Rule 3(2) CPC is condoned and the
appellant/applicant is substituted as a legal heir of the deceased
plaintiff Smt. Ram Piyari.
7. Let the appellant appear before the District & Sessions
Judge (Central), Tis Hazari Courts, Delhi on 23rd May, 2017 and the
District & Sessions Judge will mark the suit for disposal to a
competent court in accordance with law. The trial court before
proceeding further will issue notice to the defendants in the suit as also
any additional defendant which the appellant may like to implead as
defendants in the suit. Registry will ensure that trial court record in
this case is made available to the concerned District & Sessions Judge
on the date fixed.
APRIL 26, 2017/ Ne VALMIKI J. MEHTA, J
