Delhi High Court
Shyama Pahwa vs Narendra Pratap Bhalla & Ors. on 13 March, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th March, 2018
+ CS(OS) No.499/2009 & CC Nos. 81/2009 & 40/2010, IA Nos.
17283/2013 (u/O VII R-11 CPC), 2432/2015 (u/O VI R-17
CPC)
SHYAMA PAHWA ..... Plaintiff
Through: Mr. Shailendar Dahiya, Adv.
Versus
NARENDRA PRATAP BHALLA & ORS. ..... Defendants
Through: Mr. Sajan Narain, Adv. for D-1&2.
Mr. Sunil Goyal, Mr. Deepak, Adv.
for D-3.
Ms. Suruchi Suri, Adv. for D-4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff, aged 73 years at the time of institution of the suit,
in the year 2009 instituted this suit against her three brothers
impleaded as defendants no.1 to 3 viz. a) Narendra Pratap Bhalla, b)
Bharat Bhushan Bhalla; and, c) Mahinder Pratap Bhalla and her sister
Smt. Kamla Ohri (defendant no.4).
2. It was the case in the plaint i) that the plaintiff had been
suffering from chronic depression for the past 30/40 years and had
been under psychiatric treatment since 1961; ii) that the plaintiff was
residing at Mumbai since 1982 but used to visit her parents and stay
CS(OS) No.499/2009 Page 1 of 23
with them in Delhi in property No.S-61, Greater Kailash Part-I, New
Delhi; iii) that the plaintiff, in August, 2008, shifted to Delhi along
with her husband; the husband of the plaintiff died on 19th September,
2008; iv) that the condition of the plaintiff deteriorated in the last few
months preceding the filing of the suit and the plaintiff had been
suffering from Bipolar Affective Disorder with symptoms suggestive
of Dementia; v) that the neuropsychological assessment of the plaintiff
reflected impairment in functioning of temporal lobe, Visuospatial
Perceptual ability and Parieto-Occipital Lobe functioning; vi) that plot
bearing No.S-61, Greater Kailash Part-I, New Delhi, ad-measuring
500 sq. yds. was purchased by the plaintiff‟s father Sh. Harcharan
Dass Bhalla from his own funds and the father of the plaintiff carried
out construction on the said property with his own funds; vii) that Sh.
Harcharan Dass Bhalla, father of the plaintiff died intestate on 4 th
August, 1980 leaving the plaintiff and the defendants as his only
children and Smt. Basant Bhalla as his wife, as his only natural heirs;
viii) that Smt. Basant Bhalla, mother of the parties to the suit also
expired intestate on 26th January, 2007, leaving the plaintiff and the
defendants as her only natural heirs; ix) that the plaintiff thus has a
CS(OS) No.499/2009 Page 2 of 23
1/5th share in property No. S-61, Greater Kailash Part-I, New Delhi; x)
that the defendants no.1 to 3, being the brothers of the plaintiff, are
occupying the ground, first and second floors of the said property as
co-owners and the plaintiff, though not in physical possession, is in
symbolic and deemed possession, jointly with the defendants no.1 to
3; xi) that the defendants always recognized the plaintiff as joint
owner of the property; xii) that the plaintiff visited defendants no.1 to
3 in the property on 28th September, 2008 and stayed with the
defendants till 13th October, 2008; xiii) that the defendant no.1 asked
the plaintiff to sign on some typed papers without understanding the
contents of the same and also threatened the plaintiff; xiv) that the
plaintiff was taken to some place where some other persons were also
present and further signatures of the plaintiff obtained under threat and
coercion; xv) that the plaintiff was cautioned of not disclosing the
same to her family members; xvi) that the plaintiff being scared,
signed the papers without any objection; xvii) that the plaintiff
informed her son of the said incident; xviii) that when the son of the
plaintiff enquired from the defendant no.1, the defendant no.1 shouted
at him also and the defendants no.2 and 3 denied any involvement;
CS(OS) No.499/2009 Page 3 of 23
xix) that the plaintiff is not aware of the nature of the documents got
signed from her; and, xx) that the documents which were got signed
from the plaintiff are bound to be cancelled and declared null and void
and not binding on the plaintiff.
3. On the aforesaid pleas, reliefs of a) partition of property No.S-
61, Greater Kailash Part-I, New Delhi; b) injunction restraining
defendants from dealing with the said property; c) recovery of mesne
profits; and, d) declaration that the documents got executed from the
plaintiff are null and void and unenforceable against the plaintiff, were
claimed.
4. The counsel for the plaintiff, in the hearing on 27 th November,
2017, informed that the plaintiff was claiming the reliefs of
declaration as sham, fabricated, null and void and unenforceable of i)
Composition Deed dated 12th October, 1964 allegedly executed by
Smt. Basant Bhalla and Sh. Harcharan Dass Bhalla; ii) judgment and
decree dated 17th July, 1975 in Civil Suit No.397/1974 titled
"Narendra Pratap Bhalla Vs. Harcharan Das Bhalla"; iii) the Will
dated 21st June, 1965 allegedly executed by Sh. Harcharan Dass
Bhalla in favour of defendants no.1&2; and, iv) the Relinquishment
CS(OS) No.499/2009 Page 4 of 23
Deed dated 12th January, 1995 allegedly executed by Smt. Basant
Bhalla in favour of defendant no.2.
5. The suit was instituted and the plaint signed and verified, not by
the plaintiff herself but by her son, as her next friend and was
accompanied with IA No.3488/2009 under Order XXXII Rules 3 and
15 of the CPC.
6. The suit came up first before this Court on 17th March, 2009,
when the following order was passed:
"This suit has been filed on behalf of the plaintiff by her son alleging
therein that the plaintiff was an insane lady and an application under
Order 32 CPC is accompanied with the suit. However, the plea of
insanity taken by the son of the plaintiff in the suit raises a doubt.
Moreover, the son of the plaintiff had not filed any petition for
appointment of guardian of the plaintiff before any court on the ground
of his mother‟s insanity.
In these circumstances, I consider that it is necessary to examine
her mental condition.
List this matter now on 19th March 2009 for appearance of the plaintiff
and for recording her statement under Order 10 CPC."
7. On 19th March, 2009, the plaintiff appeared in person and her
statement recorded as under:
"Statement under Order 32 CPC of Smt. Shyama Pahwa wife of Late
Shri Madan Mohan Pahwa r/o J-12, First Floor, South Extension Part-
I, New Delhi-110049.
CS(OS) No.499/2009 Page 5 of 23
ON SA:
Plaintiff appeared in for her examination under Order 32.
Plaintiff disclosed her name, her education and her age correctly. She
also disclosed that she is living with her son. She disclosed that she
sometimes forgets the things. She disclosed that she herself told about
the facts of this case to her son as well as to her advocate. Few more
questions are being asked to determine the mental status of the
plaintiff.
Q. I have been living in Mumbai since 25 years. My parents used
to live in Delhi at J-12, South Extension Part-I. When I used to visit
Delhi from Mumbai, I used to visit my parents in Greater Kailash. I
was being treated for my mental ailments as well as for my physical
ailment in Mumbai and Delhi both. I was working as a teacher and I
had been teaching the students only for a period of three years. I was
giving teachers training to the nursery teachers in Training Institute in
Delhi at Bal Bharti School. I had never worked in Mumbai. I do not
remember the dates when I taught in Delhi but I taught in Delhi for
about three years. The House in Greater Kailash is a big house but I
do not remember whether it is 500 sq fts or 500 sq yards. My son is
41 years of age. My son is living with me. He lived with me in Delhi
as well as in Mumabi. I shifted from Delhi to Mumbai many years
ago but I cannot give the number of years. My husband died on 19th
September, 2009. Again said, in 2008. I shifted to Delhi after the
death of my husband. My husband had taken a small house in
Mumbai. My husband was working in Mumbai. My husband was
working as Dock Safety Inspector and later on got promoted to Dock
Safety Director and he retired as Dock Safety Director. He was
getting pension.
I lived in Mumbai for about 25 years with my husband prior to
death of my husband. I used to live in Delhi prior to that. I got married
CS(OS) No.499/2009 Page 6 of 23
in 1960. Prior to 1960 I was living in Delhi and after 1960 I shifted to
Mumbai and started living with my husband. My son Rahul Pahwa
shifted to Delhi along with me after death of my husband. My son has
been working in Delhi, Jaipur and Lucknow but he has not worked
Mumbai. He was not living with me when he worked. He had worked in
Nepal also. I know as to why this suit has been filed. This suit has been
filed since one of my brothers wants to get the entire property of my
father transferred in his name. I have 1/5th share in the property which
my brother does not want to give to me. I have filed this suit for my 1/5 th
share. I have 1/5th share in the suit property because we are five brothers
and sisters. My father died in 1980. I can read English and understand
English. I have read the suit filed in this Court. Whatever is written in
the suit was told by my son to the advocate. I had gone through the suit
and told my son to give instructions to the advocate. I do not consider
myself of having proper mental faculty. I do not consider myself as a
woman of insane mind or an idiot."
8. The following order was passed on 19th March, 2009:
"It is submitted by counsel for the plaintiff that despite the statement
made by the plaintiff today in the Court, he would like to pursue the
suit in its present form.
The property has been valued by the plaintiff at Rs.50 lac. The suit
property is 500 sq. yards built up plot in the area of Greater Kailash.
To my understanding the value of the property would be much more
than Rs.5 crore. However, counsel for the plaintiff submits that he
would amend the valuation as per notified rates of Union of India and
shall file notification also.
The plaintiff is given liberty to amend the suit regarding valuation and
for fixing appropriate court fees.
It is submitted by the counsel for the plaintiff that he relies upon a
decision of this Court in Saroj Salkan v. Capt. Sanjeev Singh and Ors
CS(OS) No.499/2009 Page 7 of 23
155(2008) DLT 300 (DB) saying that the plaintiff was not liable to
pay Court fees on ad veloram basis because the plaintiff was a co-
owner of the property sought to be partitioned and he would be liable
to pay the fixed Court fee.
The issue qua court fees is left open, to be decided after completion of
pleadings.
List this matter now on 11th August 2009."
9. A perusal of the order dated 19th March, 2009 in the suit
indicates that this Court, on so examining the plaintiff, was not
satisfied that the plaintiff was a person of unsound mind, for the
provisions of Order XXXII Rule 15 of the CPC to be applicable or for
the suit on the basis of cause of action personal to the plaintiff to be
filed by her son as her next friend. This is indicated from this Court
asking the counsel for the plaintiff, whether he would want to pursue
the suit in the form in which it was filed i.e. not by plaintiff herself
but by her son, as her next friend and accompanied with an application
under Order XXXII Rule 15 of CPC. The counsel for the plaintiff
however insisted on pursuing the suit in the form in which it was filed,
probably because without the plaintiff being of unsound mind, there
was no cause of action for the plaintiff to sue.
CS(OS) No.499/2009 Page 8 of 23
10. Immediately on change of Roster, IA No.5699/2009 was filed
by the plaintiff to seek early hearing and which came up before this
Court on 29th April, 2009 when the following order was passed:
"I.A. No. 5699/2009
This application has been filed by the plaintiff to seek early hearing of
the matter. Along with the application the plaintiff has filed amended
plaint incorporating a fresh valuation of the suit property. Since,
summons have not been issued in the suit, the amended plaint is taken
on record. Issue summons to the defendants returnable on 11th May,
2009. Summons be issued through all permitted modes.
I.A. No. 3489/2009
Exemption allowed subject to the plaintiff filing the certified copies of
the originals within eight weeks.
I.A. No. 3487/2009
Issue notice to the defendants returnable on 11th May, 2009. The
defendants shall maintain status quo in relation to the title of the suit
property till the next date. Compliance of Order 39 Rule 3 CPC be made
within three days."
11. The order dated 29th April, 2009 indicates that this Court,
without realising that the suit was filed under Order XXXII
Rule 15 of the CPC and that as per the earlier orders, this Court
was not satisfied of the maintainability of the suit, issued
summons of the suit.
12. The defendants no.1&2 have made Counter Claims in the suit
against the plaintiff.
CS(OS) No.499/2009 Page 9 of 23
13. The suit and the Counter Claim are since languishing, with
issues even having not been framed yet.
14. The plaintiff has since died and has been substituted by her son
who had earlier instituted the suit as the next friend of the plaintiff.
15. The application, being IA No.17283/2013 of defendants no.1&2
under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC)
and the application, being IA No.2432/2015 of the plaintiff under
Order VI Rule 17 of the CPC were for consideration on 27 th
November, 2017, when the counsels were heard and granting time as
sought by them to, in the course of the day, hand over copies of certain
judgments which they sought to rely on, the file was sent to the
chamber for passing orders on the said applications.
16. On going through the file, the aforesaid position emerged.
17. In the order dated 27th November, 2017, it was inter alia
observed / held as under:
"11. Though it is doubtful that inspite of the Court having ordered
summons of the suit to be issued, it is open to the defendants to
contend that there is no admission of the suit or that the issuance of
summons of the suit is without application of mind, but else the law
is clear: when a suit is filed as the next friend of a person who,
owing to state of mind, is unable to act on his own, an inquiry is
necessarily required to be conducted and the suit cannot be
CS(OS) No.499/2009 Page 10 of 23
proceeded with further. I have recently on 11th August, 2017, had
occasion to reiterate the same including by reference to my earlier
judgment in Mithilesh Chauhan Vs. Rajesh Kumar Pandey 2009
SCC OnLine Delhi 3481 and to Jairamgurnami Vs.
Shantagurnani (1979) 15 DLT 8, Jai Prakash Goel Vs. State AIR
2005 Del 83 and Radhika Kapoor Vs. State 2016 (159) DRJ 437,
in the order in CM(M) 864/2017 titled G.S. Bawa Vs. Surinder
Kaur.
13. In the present case, though an enquiry under Order XXXII
Rule 15 of the CPC was conducted by the Court and the Court was
not satisfied of the maintainability of the suit but subsequently,
summons of the suit were ordered to be issued without expressing
opinion contrary to that expressed earlier.
14. It is thus felt that the application of the plaintiff for amendment
of the plaint ought not to be decided first or till the suit is held to
have been appropriately instituted.
15. Ordinarily, the Court would have at this stage ordered such an
inquiry into the state of mind of the plaintiff, to be conducted.
However, the plaintiff is no more. The question arises, as to how
the said enquiry is to be conducted now.
16. It is deemed appropriate to grant an opportunity to the
counsels to address on the said aspect.
18. List on 21st February, 2018."
18. On 21st February, 2018, the counsel for the defendants no.1 and
2, on enquiry, whether there is any judgment covering the legal point,
relied upon Manthena Krishnam Raju Vs. Dadal Ramanaiah @
CS(OS) No.499/2009 Page 11 of 23
Rafiale MANU/AP/0404/2000. However, on request of counsel for
the plaintiff, the hearing was adjourned to today.
19. The counsel for defendants no.1 and 2 contends that in
accordance with Manthena Krishnam Raju supra, the suit has to be
dismissed with liberty to the heirs of the deceased plaintiff to, if so
desire, and if so entitled, bring a suit in accordance with law.
20. The counsel for the plaintiff has argued (i) that the dicta
aforesaid in Manthena Krishnam Raju supra is not applicable to the
facts of the present case, inasmuch as in that case the plaintiff died
shortly after the institution of the suit; however, in the present case the
plaintiff died after nearly two years of the institution of the suit and
after she had been examined by the Court; (ii) that the Court is
presumed to have found the plaintiff to be a person of unsound mind
before the summons of the suit were ordered to be issued; and, (iii) the
defendants, even after service of summons of the suit and till the
demise of the plaintiff, did not take any steps for inquiry into the
mental status of the plaintiff.
21. In Manthena Krishnam Raju supra, the suit was instituted on
3rd April, 1991 for cancellation of registered Sale Deeds executed by
CS(OS) No.499/2009 Page 12 of 23
the plaintiffs in favour of the defendants, along with an application
under Order XXXII Rule 15 of the CPC to permit the next friend of
the plaintiff to file the suit on behalf of the plaintiff; the plaintiff
expired on 5th May, 1991 and the legal representatives of the plaintiff
were substituted in her place. It was the contention of the defendants
therein that since the plaintiff expired, no enquiry as contemplated
under Order XXXII Rule 15 of the CPC was possible and the only
option left to the Court was to reject the plaint and the legal
representatives of the plaintiff could not continue the suit. Per contra,
it was the contention of the counsel for the legal representatives of the
plaintiff that they could continue the suit and had already been brought
on record and the defendants could take all defences which were
available to them in law. It was held i) that the plaint had to be
returned as no enquiry under Order XXXII Rule 15 CPC was possible;
ii) that under Order XXXII Rule 15, enquiry can be dispensed with
only in cases where the person is already adjudged as a lunatic or of
unsound mind; iii) else, the Court has to conduct an enquiry for the
purpose of finding whether the plaintiff suffers from unsoundness of
mind or mental infirmity so as to be incapable of protecting his
CS(OS) No.499/2009 Page 13 of 23
interest; iv) where the plaint is presented on behalf of a person of
unsound mind by his next friend, the representation by the next friend
does not become effective for the purpose of admitting the plaint and
issuing process against the defendant until the stage contemplated by
Order XXXII Rule 15 is reached; v) that until the Court finds the
plaintiff to be of unsound mind, by conducting an enquiry
contemplated by Order XXXII Rule 15, the provisions of Rules 1 to
14 of Order XXXII do not get extended and there is no plaint properly
presented so as to commence the proceedings in the suit; vi) that if on
conducting the enquiry, the Court comes to the conclusion that the
plaintiff is not a person of unsound mind, that will be a valid ground to
reject the plaint since the plaint in such a case had been presented by
an unauthorized person on behalf of the plaintiff; vii) that if a person
is not of unsound mind, then letting another person sue as a next
friend on his behalf will be a total deprivation of the liberty of the
person concerned to take care of his own interest and amount to
foisting on him another person to pursue a litigation which he himself
might not have liked; viii) that the Court owes a duty to the person on
whose behalf suit is brought by another, to conduct enquiry; ix) that if
CS(OS) No.499/2009 Page 14 of 23
without conducting any enquiry, permission is granted, the suit is not
maintainable as enquiry under Order XXXII Rule 15 is mandatory; x)
that if no enquiry as contemplated by Order XXXII Rule 15 is
possible, as the plaintiff is no more, the Court will not get any
jurisdiction to entertain the suit filed by the next friend on behalf of a
dead person; xi) that Order XXXII Rule 15 CPC will not authorize the
Court to grant permission to sue by next friend of a dead person - in
such circumstances, the suit is defective and not maintainable; xii) that
mere impleadment of legal representatives of the plaintiff
subsequently will not cure the initial defect of entertaining the suit;
and, xiii) reliance was placed on Somnath Dnyanoba Mahapure Vs.
Tipanna Ramchandra Jannu AIR 1973 Bom 276 (DB) and
Rangaswami Reddi Vs. Gopalaswami Reddiar (1978) II MLJ 564.
22. Rule 15 of Order XXXII is as under:
"15. Rules 1 to 14 (except Rule 2A) to apply to persons of
unsound mind. - Rules 1 to 14 (except Rule 2A) shall, so far as
may be, apply to persons adjudged, before or during the pendency of
the suit, to be of unsound mind and shall also apply to persons who,
though not so adjudged, are found by the Court on enquiry to be
incapable, by reason of any mental infirmity, of protecting their
interest when suing or being sued."
CS(OS) No.499/2009 Page 15 of 23
23. Supreme Court, in Kasturi Bai Vs Anguri Choudhary (2003) 3
SCC 225 held that where a plea of unsoundness of mind or of any of
the party to a litigation being incapable of protecting his / her interest
by reason of any mental infirmity is taken, holding of an enquiry is a
must. This Court in Shri Jai Prakash Goel supra held that the Court
is empowered to appoint a guardian only in the event a person is
adjudged to be of unsound mind and / or incapable of protecting his /
her interest in a litigation. I also have in Mithilesh Chauhan supra
held that a decree against a person of unsound mind and / or who is
unable to look after his / her interest is a nullity and no purpose would
be served in proceeding with the suit without holding the enquiry. It
was further held that such enquiry does not necessarily mean reference
to the medical specialist; the trial Court can direct the party to appear
before the Court and the Court can on putting questions to the party
arrive at a finding as to whether such person is a person of unsound
mind or incapable of looking after his / her own interest and that only
if the Court after holding such preliminary enquiry is able to reach a
definite conclusion as to the mental status of the person is the person
concerned to be referred to a medical specialist.
CS(OS) No.499/2009 Page 16 of 23
24. As far as the contention of the counsel for the plaintiff, of the
dicta in Manthena Krishnam Raju supra being not applicable for the
reason of the death of the plaintiff therein being within one month of
the institution of the suit, and the death of the plaintiff in the present
case being after two years of the institution of the suit is concerned, I
am unable to find any merit therein. Merely because the suit remained
pending for long would not validate what was invalid on the date of
institution.
25. I have next considered the argument of the counsel for the
plaintiff, of the Court being presumed to have found the plaintiff to be
a person of unsound mind before the summons of the suit were
ordered to be issued.
26. When the law i.e. Order XXXII Rule 15 of the CPC entitles the
next friend to sue on behalf of the plaintiff only when such plaintiff is
„found‟ by the Court, on enquiry, to be incapable, by reason of any
mental infirmity, of protecting his / her interest when suing, the Court
cannot be „presumed‟ or „deemed‟ to have found so by the mechanical
act of issuance of summons of the suit or grant of ex parte ad-interim
relief sought.
CS(OS) No.499/2009 Page 17 of 23
27. From the observation "It is submitted by counsel for the
plaintiff that despite the statement made by the plaintiff today in the
Court, he would like to pursue the suit in its present form" in the first
paragraph of the order dated 19th March, 2009 supra, it is quite clear
that this Court after recording the statement of the plaintiff, was not
satisfied that the plaintiff is of unsound mind or incapable of looking
after her interest. This is clear from use of the word "despite" therein.
Further, in my opinion, the order dated 29th April, 2009 can by no
stretch of imagination be read as having found the plaintiff to be
incapable by reason of mental infirmity of protecting her own interest.
Rather from a reading of the order dated 29th April, 2009 it appears
that the Court on that date was not even aware of the suit having been
instituted not by the plaintiff but by her next friend, claiming the
plaintiff to be suffering from mental infirmity.
28. When a procedural law requires something to be done only if
the Court „finds‟ certain thing „on enquiry‟, without a definite finding
being returned, that thing cannot be permitted to be done. Though in
certain situations, the Court can be presumed or deemed to have acted
in accordance with law but in the facts of the present case, since the
CS(OS) No.499/2009 Page 18 of 23
Court had in the first two orders reproduced above, expressed
dissatisfaction with respect to the unsoundness of mind of plaintiff and
not issued summons of the suit, no such presumption can be drawn.
29. High Court of Kerala, in Maideen Bava Rawther Vs. John
Xavier 1990 SCC OnLine Ker 438, held that when in an application
under Order XXXII Rule 15 of the CPC allegation is made that the
plaintiff is incapable of managing his affairs on account of insanity, it
has to be viewed with all seriousness by the Court and cannot be
treated in a cavalier manner; it deserves weighty consideration and
only after proper enquiry can the Court come to its conclusion. It was
further held that the Court cannot dispense with the judicial enquiry
contemplated under Order XXXII Rule 15 of the CPC and cannot
infer or assume such claim to be true merely because it is not opposed
and cannot shirk from its responsibility.
30. As far as the only other contention of the counsel for the
plaintiff, of the defendants having not sought enquiry contemplated by
Order XXXII Rule 15 of the CPC is concerned, I may notice that the
defendants in their written statement as well as in the application for
rejection of plaint took a plea of the suit filed by the son of the
CS(OS) No.499/2009 Page 19 of 23
plaintiff as next friend of the plaintiff being not maintainable and no
enquiry having been conducted. It was for the plaintiff to be
cautioned by such objection of the defendants but the plaintiff even
then did not choose to approach the Court for conducting an enquiry
as required in law and return a finding.
31. Else, I respectfully concur with the reasoning in Manthena
Krishnam Raju supra and am of the view that the present suit,
though in the name of the plaintiff, but not instituted by the plaintiff
and the plaint therein being not signed and verified by the plaintiff,
was ineffective till the Court found the son of the plaintiff, who has
instituted the suit and signed and verified the plaint as next friend of
the plaintiff, to be entitled to do so. Merely because the same has been
pending for long and merely because the legal heirs of the plaintiff
have been substituted, would not cure the defect in the institution of
the suit. The enquiry which the law required to be conducted to
validate the suit not instituted by the plaintiff and the plaint wherein
was not signed and verified by the plaintiff, is now not possible owing
to the demise of the plaintiff.
CS(OS) No.499/2009 Page 20 of 23
32. I may in fact mention that the application of the son of the
plaintiff for substitution in place of the plaintiff is found to have been
allowed on 12th September, 2011 in the absence of the counsel for the
defendants no.1 and 2 and without any record of notice thereof having
been served on the defendants no.1 and 2.
33. I may also mention that the orders dated 6th January, 2010 and
8th July, 2011 refer to IA No.3488/2009 under Order XXXII Rules 3
and 15 of the CPC read with Section 151 CPC to have been filed on
behalf of the plaintiff for appointment of next friend of the plaintiff
but no mention thereof is found in any of the earlier orders and no
order till then is found to have been made thereon. The said
application is also not found on record. However, on 8th July, 2011,
the said application was disposed of on the statement of the counsel
for the plaintiff that the plaintiff had expired and the said application
had become infructuous.
34. I have of my own, also considered allowing the son of the
deceased plaintiff to continue the present suit, in his own capacity as
the legal heir of a person, who on account of mental status, was not of
contracting capacity and treating the suit to have been instituted on the
CS(OS) No.499/2009 Page 21 of 23
day of his substitution in place of the deceased plaintiff. It is always
open to a legal heir of such a person to institute such a suit impugning
the contract executed by such a person. However, in the facts of the
present case, I am not inclined to allow so, because i) the plaintiff / her
son are found to have got summons of the suit issued on 29 th April,
2009, without drawing the attention of this Court to the earlier orders
and without inviting orders on the application under Order XXXII
Rules 3 and 15 of the CPC, thereby attempting to steal a march on the
defendants; such conduct disentitles them to exercise of any discretion
in their favour; such conduct continued, with the application for
substitution having been got allowed without presence of / notice to
defendants no.1 and 2 and having the application under Order XXXII
Rules 3 and 15 disposed of as infructuous, thereby indicating giving
up of the claim for having the same adjudicated; ii) the suit, though
has remained pending for long, but is still at nascent stage, with the
son of deceased plaintiff wanting to amend the plaint, whereafter
pleadings will have to be completed; it is thus felt that no substantive
proceedings have taken place which will need to be replicated in fresh
suit; and, iii) the pleadings in this suit and Counter Claims are already
CS(OS) No.499/2009 Page 22 of 23
in a mess and on which comment has already been made in order
dated 27th November, 2017; it is hoped that if crisp pleadings are
made, adjudication will be expedited.
35. The counsel for the plaintiff then states that liberty be granted to
the son of the plaintiff to file a fresh suit for the same reliefs.
36. The counsel for the defendants no.1 and 2 states that it be
clarified that all defences available shall remain open to the defendants.
37. The suit is thus dismissed with liberty aforesaid to the parties.
38. The counsel for the defendants no.1 and 2 states that in view of
the above, he withdraws Counter Claims No.81/2009 and 40/2010
with liberty to sue afresh in accordance with law if need and / or cause
of action therefor arises and / or to take the pleas as taken therein in
the defence to any fresh proceedings filed by the son of the plaintiff.
39. The Counter Claims are dismissed as withdrawn with liberty aforesaid.
40. The counsel for the defendants no.1 and 2 also presses for costs.
41. However in the aforesaid facts, no costs.
RAJIV SAHAI ENDLAW, J.
MARCH 13, 2017 „SRwt/gsr‟ CS(OS) No.499/2009 Page 23 of 23