Delhi High Court
Sudhir Chandra vs Col Dinesh Chandra (Since ... on 22 February, 2017
$~A-43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22.02.2017
+ CM(M) 1265/2016
SUDHIR CHANDRA ..... Petitioner
Through Mr.Neeraj Malhotra, Mr.Om Prakash,
Ms.Arzoo Ray and Mr.Rupal Luthra,
Advocates
versus
COL DINESH CHANDRA (SINCE DECEASED)
THR LRS & ORS ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CM No.45528/2016(exemption)
Allowed subject to all just exceptions.
CM(M) 1265/2016 & CM Nos.45527 & 45527/2016
1. By the present petition under Article 227 of the Constitution of India
the petitioner seeks to impugn the order dated 23.11.2016 and the order
dated 14.9.2016 by which fresh summons have been issued on LRs of
deceased respondent No.1.
2. The petitioner has filed a suit for declaration, cancellation of
documents, damages, possession and injunction with regard to the property
bearing No. F-75, Preet Vihar, New Delhi-110092. It is the contention of the
petitioner in the suit that he is the owner of the suit property and that
defendant No.1/his father had resorted to forgery and fabrication of
documents and had affected sale deed of the property in his favour on
CM(M) 1265/2016 Page 1 of 4
15.04.1994.
3. Defendant No.1/father, namely, Col. Dinesh Chandra expired on
06.03.2013 leaving behind his children inasmuch as his wife had already
predeceased him. The petitioner is one of the sons of the deceased defendant
No.1 and respondent No.2 is one of the daughters of the deceased defendant
No.1.
4. By the application under Order 22 Rule 4 CPC, the petitioner sought
to implead all the Class-I heirs of late Col. Dinesh Chandra.
5. In the application filed by the petitioner under Order 22 Rule 4 CPC
the proposed LRs have been served. None has appeared for the said
proposed LRs other than respondent No.2 who has already been impleaded
as a defendant in the suit. The application under Order 22 Rule 4 CPC was
allowed by the trial court on 14.9.2016. The fact that the LRs are served is
also manifest from the order dated 19.8.2016 passed by the trial court.
Thereafter the trial court by its order dated 14.9.2016 directed the petitioner
to file amended Memo of Parties and also serve the summons in the suit
returnable for 26.10.2016. On 23.11.2016 the court noted that no steps have
been taken to serve the newly added defendant and rather an application has
been moved under section 151 CPC stating that there is no need to serve the
LRs since they have already been served with notice of the application under
Order 22 Rule 4 CPC.
6. The trial court however concluded that the newly added defendants
would have to be served again despite the fact that service has already been
effected earlier. It also noted that the case is of 1999 and is languishing in
court for the last 17 years and that the petitioner is delaying the trial. The
application filed by the petitioner under section 151 CPC was dismissed
CM(M) 1265/2016 Page 2 of 4
with costs of Rs.20,000/-.
7. An advance copy of the petition has been served on the respondent
but none is present on their behalf.
8. Learned counsel for the petitioner relies upon judgment of the
Calcutta High Court in Babulal N.Shukla vs. Jeshankar N. Shukla, AIR
1972 CAL 494 to contend that once legal representatives have been
substituted in place of the deceased defendant then no fresh summons need
be served. Relevant paragraphs reads as follows:-
"6. If a writ of summons is served on the substituted party, the
writ itself will give the party a right to enter appearance in the
suit and to file his written statement within the time specified
therein. In the instant case, the deceased defendant having
already filed his written statement jointly with the defendant No.
1, his legal representative cannot be permitted to make out a new
case afresh in another written statement at this stage. It is to be
noted in this connection, that the case of addition of a defendant
is different. Addition of defendant may be made under Order I.
Rule 10 (iv) which provides as follows:--
"Whether a defendant is added, the plaint shall, unless the Court
otherwise directs, be amended in such manner as may be
necessary, and amended copies of the summons and of the plaint
shall be served on the new defendant and, if the Court thinks fit,
on the original defendant."
This rule specifically provides for service of writ of summons on
the parties added, but Order XXII, Rule 4 of the Code of Civil
Procedure, provides for the procedure in case of death of one of
the several defendants or of the sole defendant. Order XXII.
Rule 4 is worded differently. This order says, that any person so
made a party may make any defence appropriate to his character
as legal representative of the deceased defendant. It is the only
right that a substituted defendant has, namely, that he can make
a defence appropriate to his character as a legal representative of
the deceased defendant.
CM(M) 1265/2016 Page 3 of 4
7. In the premises, I think that the prayer in paragraph (f) of the
petition, namely, fresh writ of summons should be issued for
service on the substituted defendant cannot be granted. I recall
the said order for issue of fresh writ of summons for service on
the substituted defendants and I order that this order for
substitution may be served on the substituted defendants. Leave
is given to the substituted defendants to enter appearance and to
make any defence appropriate to their character as legal
representatives of the deceased defendant. Leave is given to the
substituted defendants to file additional written statement within
10 days from the date of the service of this order upon them.
Service on the substituted defendants may be made by registered
post. The order dated January 14, 1971 is modified as above."
9. Learned counsel further submits that most of the LR's are abroad and
are not interested in the proceedings. To serve them would not only be
expensive but a long drawn out affair.
10. In my opinion, the defendants cannot be permitted to delay
adjudication of the suit by remaining absent in this manner. They have been
served with the application under Order 22 Rule 4 CPC and have chosen not
to appear. The application was allowed and they were impleaded. They have
taken a call. The process of the court cannot be stalled to again issue
summons/notice to them. No such procedure is prescribed by Order 22 Rule
4 CPC. In my opinion, the impugned order suffers from material illegality.
The said order is quashed. In view of the service already effected on LRs of
deceased defendant No.1 the suit may proceed accordingly.
11. Accordingly, petition and all pending applications stand disposed of.
12. Dasti.
JAYANT NATH, J.
FEBRUARY 22, 2017/n
