Delhi High Court
Master Rayann Thru His Mother Mrs. ... vs P.N. Juneja & Sons Huf on 9 November, 2017
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 9th NOVEMBER, 2017
+ CS(OS) 2177/2007 & IA 9417/17
MASTER RAYANN THRU HIS MOTHER MRS. RIDHIMA
JUNEJA ..... Plaintiff
Through : Ms.Geeta Luthra, Sr.Advocate with
Mr.Ujwal Jain, Advocate.
versus
P.N. JUNEJA & SONS HUF ..... Defendant
Through : Mr.Samrat Nigam & Mr.Abhimanyu
Walia, Advocates for D1 & D3.
Ms.Prerna Mehta, Advocate for D2.
Mr.Ashish K.Manchanda, Sr.Standing
Counsel for Income Tax Department.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)
OA 114/2017 (under Rule 4 of Chapter II of DHCR, 1967)
1. By the impugned order dated 27.05.2017, IA 1153/2017
filed under Order XXII Rule 4 CPC read with Section 151 CPC for
bringing on record the legal heirs of the deceased defendant No.4 i.e.
Smt.Saroj Rani Juneja was partly allowed. The suit against the legal
heirs of the deceased defendant No.4, i.e., Neera Bajaj and Rabika
Khanna who were not brought on record within 90 days from the date
of death of defendant No.4 was ordered to have abated.
2. Undisputedly, the plaintiffs have filed the instant suit for
partition of the suit property; plaintiff No.2 is the estranged wife of
defendant No.2 and plaintiff No.1 is their minor son. The present suit
is regarding partition of the immovable properties against the family
members of the father of the plaintiff No.1 and husband of plaintiff
No.2. Defendant No.4 was defendant No.3's wife; she expired on
18.12.2015. The plaintiff did not file any application for substitution
of legal heirs of the deceased Smt.Saroj Rani Juneja within 90 days
from her death. The instant application was filed on 24.01.2017.
Factum of death of defendant No.4 finds reflection in the order dated
12.08.2016.
3. Admittedly defendants No.2 & 3 are also the legal
representatives of deceased Smt.Saroj Rani Juneja. The suit is being
contested by them. In fact, a joint written statement was filed on
behalf of defendants No.1, 3 & 4. Needless to say, there was
sufficient representation to the estate.
4. In the IA 1153/2017 filed under Order XXII Rule 4 CPC
for substitution of the legal heirs of the deceased, the plaintiffs had
given credible and cogent reasons for delay in bringing on record all
the legal heirs of the deceased. It is informed that the necessary steps
could not be taken due to financial difficulty and dire circumstances as
husband of plaintiff No.2 did not provide monthly maintenance and
arrears in terms of the order dated 19.04.2016 of the Hon'ble Supreme
Court; not a single penny has been paid since the passing of the order
dated 19.04.2016. It is further stated that settlement talks were going
on between the parties after passing of the order dated 19.04.2016 and
it continued till November, 2016. The delay in filing the application
for substitution was not deliberate but bonafide and was due to the
malafide conduct and intent of defendant No.2. It is further informed
that the plaintiff No.2 and defendant No.2 had met on various dates on
17.10.2016 and 20.10.2016 to resolve the disputes. Moreover, she had
suffered chikungunya in October, 16 and on account of her bad health,
she was unable to give instructions to her counsel. All these
submissions cannot be ignored while considering the condonation of
delay in filing the application for substitution. In the absence of fraud
or collusion or other circumstances to the detriment of the legal
representative who have not been brought on record, the bonafide
delay to bring them on record is of no consequence.
5. In 'Mahabir Prasad vs. Jage Ram & Ors.', 1971 (1) SCC
265 and 'Fakira and Anr. vs. Board of Revenue, Rajasthan at Ajmer
and Ors.', AIR 1975 Raj. 208, the Supreme Court observed that where
a party dies and one of the legal representatives is already on record,
even though in another capacity, an application describing that he is
also on record is sufficient and the proceedings would not abate even
if no application for impleading other heirs and legal representatives is
made within limitation.
6. In 'K.Rudrappa vs. V.Shivappa', AIR 2004 SC 4346, it is
observed that where substitution application by the legal heirs is
immediately filed after coming to know about the pendency of the
suit/appeal from the advocate, substitution would not be rejected on
the technical objection that no prayer for setting aside abatement or for
condonation of delay in moving substitution application has been
made.
7. In the instant case, the doctrine of substantial
representation is applicable. In the suit for partition, all other
stakeholders were already on record. The other legal heirs who had
not come on record were the married daughters of the deceased. They
also did not come forward to be impleaded as a party in the present
proceedings after coming to know about the death of their mother.
8. It is relevant to note that the factum of defendant No.4's
death was brought to the notice of the Court on 12.08.2016. No order
of abatement as such has been passed by this Court. No useful
purpose will be served to first abate the suit qua the married daughters
of the deceased defendant No.4 and then ask the plaintiffs to file an
application for setting aside the abatement as urged by the learned
counsel for the defendants. Since there was substantial representation
to the estate of the deceased and the application discloses bonafide
reasons for delay in moving the substitution application, the impugned
order whereby the suit stood abated against the married daughters of
the deceased Smt.Saroj Rani Juneja cannot be sustained.
9. OA 114/2017 is accepted; the impugned order is set
aside.
CS(OS) 2177/2007 & IA 9417/17
10. Amended memo of parties is on record.
11. List before the Joint Registrar on 5th December, 2017 for
further proceedings.
(S.P.GARG)
JUDGE
NOVEMBER 09, 2017 / tr
