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Shri Bal Kishan Shokeen vs Shri Om Parkash Shokeen And Anr on 22 August, 2022

Author: Neena Bansal Krishna

Bench: Neena Bansal Krishna

                          $~21
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CS(OS)     314/2008,   CRL.M.A.29952/2018,     I.A.12450/2017,
                                 I.A.7284/2018, I.A.10811/2018, I.A.11945/2018, I.A.16466/2018,
                                 O.A.146/2017

                                 SHRI BAL KISHAN SHOKEEN                                  ..... Plaintiff
                                                   Through:    Appearance not given.

                                                   versus

                                 SHRI OM PARKASH SHOKEEN AND ANR.                      ..... Defendants
                                                   Through:    Mr. R.N. Vats, Mr. Akshat Gupta &
                                                               Mr. Ajay Kumar Mishra, Advocates
                                                               for LR of D-1.
                                                               Ms. Swastika Singh, Advocate for D-
                                                               2.
                                                               Mr. Dharmendra Kumar Mishra,
                                                               Advocate for D-3 with D-3 in person.
                                                               Ms. Beenashaw N. Soni & Ms. Manel
                                                               Bhatia, Advocates for D-4.
                                                               Mr. Pushkar Sood & Mr. Satya
                                                               Prakash, Advocates for defendant
                                                               D-7.
                                 CORAM:
                                 HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
                                                 ORDER

% 22.08.2022 I.A.15300/2021 (U/O 22 Rule 3 read with Section 151 of CPC, 1908 for impleadment of LRs of the plaintiff)

1. The present application has been filed under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 on behalf of the defendant No.7-Jitender Shokeen seeking impleadment of the legal heirs of the plaintiff-Bal Krishan Shokeen.

2. It is submitted in the application that the plaintiff-Bal Kishan Shokeen has expired on 08th June, 2021 in Bangalore and he is survived by his wife- Rattan Shokeen, his two sons, namely, Mr. Hitender Shokeen and Mr. Jitender Kumar Shokeen and two daughters, namely, Ms. Vandana Shokeen and Ms. Vaneeta Dabas. The cause of action survies on the legal heirs upon the demise of the plaintiff-Bal Kishan Shokeen. The legal heirs have already been impleaded as the defendants vide Order dated 28th April, 2016 and 08th August, 2019.

3. A prayer has, therefore, been made that the legal heirs of the deceased plaintiff-Bal Kishan Shokeen be substituted as plaintiffs and the amended memo of parties be taken on record.

4. Learned counsels on behalf of the legal heirs/defendant Nos. 7, 8 and 9 have submitted that they have been impleaded as the defendants during the life time of deceased plaintiff-Bal Kishan Shokeen vide Order dated 08th August, 2019 as there was a plea taken that the deceased plaintiff-Bal Kishan Shokeen was not representing the properties which he himself had asserted in the plaint to be a Hindu Undivided Family (HUF). Subsequently, it is submitted that the defendant Nos. 7, 8 and 9, being the legal heirs of deceased plaintiff-Bal Kishan Shokeen, may be transposed as plaintiffs in place of deceased plaintiff-Bal Kishan Shokeen.

5. Learned counsel on behalf of the defendant No. 4 has submitted that the stand of the defendant No. 4 was the same as that of deceased plaintiff- Bal Kishan Shokeen, who claimed that all the properties are HUF properties. However, the defendant Nos. 7, 8 and 9 in their Written Statement have asserted that the properties listed at serial numbers 6 to 11 in the plaint were being claimed to be the individual properties of deceased plaintiff-Bal Signature Not Verified Digitally Signed CS(OS) 314/2008 Page 2 of 6 By:SAHIL SHARMA Signing Date:27.08.2022 11:09:40 Kishan Shokeen, which were in contravention of claim of the deceased plaintiff-Bal Kishan Shokeen himself. Therefore, the interest of the defendant Nos. 7, 8 and 9 is not the same as that of the deceased plaintiff- Bal Kishan Shokeen and, therefore, it is only the defendant No. 4, who has also taken a similar stand as deceased plaintiff-Bal Kishan Shokeen that all the properties were being HUF, is entitled to be transposed as the plaintiff.

6. Learned counsel on behalf of the defendant No. 3 as argued that no notice of the application under Order 23 Rule 3 of CPC, 1908 has been given to two daughters. They were served during the life time of deceased plaintiff-Bal Kishan Shokeen as has been observed in the Order dated 08th August, 2019 and, therefore, there is nothing on record to show that the interest of two daughters is contrary to that of the deceased plaintiff-Bal Kishan Shokeen. Both the daughters are entitled to be transposed as the plaintiffs.

7. Submissions heard.

8. It is not in dispute that the deceased plaintiff-Bal Kishan Shokeen had filed the present counter-claim which was registered as a Suit seeking partition of all the properties mentioned in Annexure D-1 being the Joint Hindu Family properties.

9. The defendant No. 4 in his Written Statement has taken the same stand that all the properties being the Joint Hindu Family properties.

10. The defendant No. 6-Rattan Shokeen has admitted that all the properties mentioned in Annexure D-1 were the HUF properties, except House No. B-5/147, Paschim Vihar, Delhi-110063, which was the individual property of deceased plaintiff-Bal Kishan Shokeen.

11. The defendant No. 7-Jitender Shokeen had filed a separate Written Signature Not Verified Digitally Signed CS(OS) 314/2008 Page 3 of 6 By:SAHIL SHARMA Signing Date:27.08.2022 11:09:40 Statement taking the defence as of defendant No. 6-Rattan Shokeen.

12. The defendant Nos. 8 and 9 though were impleaded as the party but they failed to contest the suit. They were directed to file the Written Statement vide Order dated 08th August, 2019 but no Written Statement till date has been filed on behalf of the defendant Nos. 8 and 9. They have since then been proceeded as ex parte.

13. The deceased plaintiff-Bal Kishan Shokeen (original plaintiff) has died on 08th June, 2021 and it is not under challenge that he is survived by his wife-defendant No. 6, his two sons, namely, Shri Hitender Kumar Shokeen-defendant No.4 and Shri Jitender Shokeen-defendant No.7 and two daughters, namely, Smt. Vandana Shokeen-defendant No. 8 and Smt. Vaneeta Dabas-defendant No.9. They are all the legal heirs of the plaintiff and are already impleaded as defendants in the present matter. The only issue which is now being raised is who is to be transposed to represent interest of the deceased Bal Kishan Shokeen. As is evident from the Written Statement of the defendant Nos. 6 and 7, wherein they have claimed one property out of all mentioned in Annexure D-1 to be the individual property of deceased plaintiff-Bal Kishan Shokeen, their interest is not in absolute consensus with that of the deceased plaintiff-Bal Kishan Shokeen. On the other hand, the defendant No. 4 has re-affirmed in his Written Statement that all the properties were HUF as was mentioned by the deceased plaintiff-Bal Kishan Shokeen in his original plaint.

14. Considering the facts and submissions made, the defendant No. 4-Hitender Kumar Shokeen is hereby transposed as plaintiff.

15. In so far as two daughters, namely, Smt. Vandana Shokeen-defendant No. 8 and Smt. Vaneeta Dabas-defendant No.9 are concerned, they have not Signature Not Verified Digitally Signed CS(OS) 314/2008 Page 4 of 6 By:SAHIL SHARMA Signing Date:27.08.2022 11:09:40 chosen not to contest the present suit and have not filed their Written Statements. Therefore, they continue to be party as defendants in the present suit.

16. The only grievance of the learned counsel for the defendant No. 3 was that there is collusion between the defendant No. 4 and the plaintiff-Bal Kishan Shokeen and by transposing the defendant No. 4 as the plaintiff, the bona fide claims of defendant Nos. 1, 2 and 3 shall be seriously prejudiced.

17. Learned counsel for the defendant No. 3 has also argued that Order dated 08th August, 2019 was made at the stage when deceased plaintiff-Bal Kishan Shokeen was suffering from Alzheimer and was not in a position to protect his own interest. Order dated 08th August, 2019 has now lost its significance after the demise of plaintiff-Bal Kishan Shokeen. This argument is not tenable because the Order dated 08th August, 2019 is explicit in stating that all the legal heirs of plaintiff-Bal Kishan Shokeen are impleaded as the defendants and were also directed to file the Written Statements.

18. Therefore, it cannot be said that the Order dated 08th August, 2019 impleading the legal heirs of deceased plaintiff-Bal Kishan Shokeen was only for the purpose of disposal of application under Order 32 Rule 15 of CPC, 1908. Rather, they were all impleaded as defendants and a right was given to file Written Statement.

19. It may be noted that this is a suit for partition, wherein all the parties are essentially on the same footing. The defendant Nos. 1, 2 and three have their own right to protect their interests and merely because defendant No. 4- Hitender Kumar Shokeen is transposed as the plaintiff, their interest would not be prejudiced.

20. Considering the facts and submissions made, the present application is accordingly allowed and the defendant No. 4-Hitender Kumar Shokeen is hereby transposed as the plaintiff.

21. Amended memo of parties is taken on record.

22. Application is disposed of in the above terms.

CS(OS) 314/2008, CRL.M.A.29952/2018, I.A.12450/2017, I.A.7284/2018, I.A.10811/2018, I.A.11945/2018, I.A.16466/2018, O.A.146/2017

1. List before the Joint Registrar for completion of pleadings of pending applications on 16th November, 2022.

NEENA BANSAL KRISHNA, J AUGUST 22, 2022 S.Sharma Signature Not Verified Digitally Signed CS(OS) 314/2008 Page 6 of 6 By:SAHIL SHARMA Signing Date:27.08.2022 11:09:40