Delhi District Court
Shyam Bihari Sonthalia vs Munnulal & Ors on 23 September, 2008
IN THE COURT OF SH. KAMLESH KUMAR, ADDL.DISTT. JUDGE;DELHI Suit no. 25/03 M No. 45/07 Shyam Bihari Sonthalia .....Plaintiff Vs Munnulal & Ors .......Defendants ORDER
This order will dispose of an application under Section 151 CPC filed by ld counsel, for the plaintiff ,for restoration of the suit, dismissed vide order dated 31.10.2007.
2 The applicant has stated that ld. Counsel for the plaintiff appeared in the matter at first call in the morning and the matter was kept pending for the purpose of filing some miscellaneous application. Thereafter, ld. Counsel got busy in some other court. It is stated that the matter was called again at 2 p.m. The ld. counsel was to enter the court room. The matter was called but he could not hear the call and as such the matter was dismissed in default at 2.05 p.m. It is prayed that the application be allowed to avoid any irreparable loss to the plaintiff. 3 The application has been contested by the defendants no. 1 & 2. In :-1:-
their reply, they claimed that the application does not disclose the true and correct facts and that the same has not been filed under the correct provision of law and further that no sufficient grounds have been shown for restoration of the suit as the absence of plaintiff has not been explained. It is claimed that the matter was kept pending as ld. Counsel for the plaintiff had sought time to call the plaintiff, whose affidavit had already been filed.
4 I have heard ld. Counsel for the parties at bar and have carefully gone through the material on record.
5 It is observed from the proceedings dated 31.10.2007 that ld. Counsel for the plaintiff and defendant were present before lunch and ld. Counsel for the plaintiff sought time to call the plaintiff but till 2.05 p.m neither the plaintiff nor his counsel appeared and, therefore, the suit was dismissed in default. The record of the case, further, reveals that on 19.4.2007 ld. Counsel for the plaintiff had sought adjournment on the ground that the plaintiff was critically ill and was on death bed. Further on 10.7.2007, adjournment was sought to move appropriate application and on 28.09.2007, adjournment was sought to file affidavit.
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6 The matter was called at 2.05 p.m. Ld. Counsel for the applicant claims that he was just at the gate of court but he could not hear the call made by the staff and the matter was over, having been dismissed in default, by the time he entered the court room. Had the ld. Counsel for the defendant appeared in time and was heard, he could have explained the absence of the plaintiff. It appears that the plaintiff who was reported to be on death-bed on 19.04.2007, was not getting well. In fact, he expired on 8.12.2007. The present application was filed by ld. Counsel for restoration of the suit on the same day. As such there is no delay in filing the application and I find no reason to disbelieve the version of ld.
Counsel for the plaintiff. Admittedly, the application ought to have been filed under Order 9 Rule 9 but it is settled law that the contents of the application are more important than the provision of law under which it is filed.
7 In the light of the discussion hereinabove, I deem it expedient to allow the application and restore the suit to its original number.
Ordered accordingly.
Announced in the open court ( KAMLESH KUMAR)
On 23 September, 2008 ADDL. DISTT. JUDGE
DELHI
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IN THE COURT OF SH. KAMLESH KUMAR, ADDL.DISTT. JUDGE;DELHI Suit no. 25/03 Shyam Bihari Sonthalia .....Plaintiff Vs Munnulal & Ors .......Defendants ORDER This order will dispose of an application under Order 22 Rule 3 read with Section 151 CPC filed by one Sakshi through counsel and another application under Section 151 CPC, for condonation of delay in filing the death certificate and application under Order 22 Rule 3 CPC. 2 The applicant has stated that the deceased Sh. Shyam Bihari Sonthalia was regularly appearing and actively participating in the matter. It is, further, stated that he expired on 8.12.2007 leaving behind Smt. Prem Lata Sonthalia ( Wife), Sh. Rajdeep Sonthalia ( Son), Smt. Deepali Diwan ( Daughter) and Ms Sakshi Sonthalia ( Grand-daughter) as legal heirs. It is, further, stated that the applicant Sakshi Sonthalia, legal representative of late Sh. Shyam Bihar Sonthalia wants to pursue and continue the matter as the wife, son and daughter of the deceased are :-4:-
already arrayed as defendants in the suit.
3 The applicant has stated that an appropriate application under Order 22 Rule 3 CPC was prepared in time by ld. Counsel but during the winter vacation of the court, as cleaning and renovation work was under
progress in his Chamber and while the case files were temporarily been shifted, the file of the present matter got misplaced. It is, further, stated that after restless search, some part of the files were traced and fresh application was prepared. It is submitted that there is delay of one and a half month and prayed that the said delay be condoned.
4 The applications have been contested on behalf of the defendants no. 1 & 2. In their reply, the defendants no. 1 & 2 claimed that the applicant is neither a legal heir nor legal representative of the deceased under any provision of law. It is also claimed that the plaintiff had no right in the property but had filed the suit as a trustee. They, however, admitted that the application for restoration of the suit, dismissed in default on 31.10.2007, was pending disposal. It is stated that the applicant Ms Sakshi cannot be the legal heir of the deceased plaintiff till her father Sh. Rajdeep Sontholia ( defendant in the suit) is alive. It is also submitted that Smt. Prem Lata Sonthalia, Sh. Rajdeep Sonthalia and Smt. Deepali Diwan are legal heirs but they cannot be substituted as plaintiffs :-5:-
since the relief sought in the suit is against them also. It is alleged that the application is false, frivolous, vexatious and has been filed to harass the defendants. It is also claimed that the application is barred by limitation having been filed beyond the period of 90 days.
5 In reply to application for condonation of delay, the defendants submitted that application, having been filed under Section 151 CPC, is liable to be dismissed. It is also claimed that the ld. Counsel has failed to show as to when and from where some parts of the files were traced. It is prayed that the application be dismissed.
6 I have heard ld. Counsel for the parties at bar on both the applications and have carefully perused the record. 7 It is the admitted case of the applicant that she is not the legal heir of deceased Sh. Shyam Bihari Sonthalia. She has however claimed to be the legal representative of the deceased. She has relied upon the "Will" claimed to have been executed by the deceased Sh. Shyam Bihari Sonthalia on 21.11.2007. A copy of the said 'Will', placed on record, shows that the deceased bequeathed his properties and ownership rights to his grand-daughter Sakshi ( the applicant). He also bequeathed some :-6:-
other assets to his wife Smt. Prem Lala Sonthalia. No doubt, the validity of the said 'Will' dated 21.11.2007 will be challenged ( as submitted by ld. Counsel for the defendants) by the defendants but at this stage, for a limited purpose, it is clear that the applicant/Sakshi does have certain rights to represent the deceased.
8 The object of the provision under Order 22 Rule 3 is to ensure that a party is not left un-represented on account of subsequent developments such as death etc. The purpose/object in fact is to ensure that the deceased is represented effectively by somebody or the other. Such determination cannot be treated as final pronouncement as to the devolution of, or succession to the rights of the deceased. Separate proceedings have to be initiated for this purpose, unless those very questions and issues fall for consideration in that suit. 9 It is well settled law that a clear distinction needs to be maintained between the concept of "legal heir" on the one hand and that of the "legal representative" on the other. The former is result of operation of law of succession and other related personal laws. The existence of relationship of a particular kind between the deceased and such relations would automatically enable them to be treated as legal heirs. The "legal :-7:-
representative" on the other hand is a person who is entitled to represent the estate of the deceased, at least in the proceedings in which the necessity arises. Further, a distinction has to be maintained, depending on whether the interests of the legal heirs are in any way in conflict with those of the deceased. [ reference may be had to AIR 2004 Andhra Pradesh 498- G.N. Kishore Reddy Vs. R. Venugopal Rao.]
10 In view of the settled position of law and facts on record, as discussed above, it is clear that the applicant is not a legal heir but a legal representative of the deceased Sh. Shyam Bihari Sonthalia. She is the only person, as the other legal heirs are already defendants in the suit, to represent the deceased effectively. I am, therefore, inclined to allow the application.
11 As regards the delay in filing of the application, ld. Counsel for the applicant has submitted that the delay resulted due to misplacement of the file as renovation work was going on in his Chamber. Admittedly, there is delay and admittedly, some of the details like the place and time when part of the files were traced out have not been given but the same are not very material. The Hon'ble Supreme Court in AIR 1987 SC 1353 has laid down that, "court should adopt liberal approach to :-8:-
do substantial justice to parties by disposing of matters on merits". The Hon'ble Supreme Court has laid down the principles also, for adoption of such a liberal approach and laid down that, " when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay". It also laid down that, " A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. The judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
12 Keeping in view the guidelines of the Hon'ble Supreme Court and the facts and circumstances of the matter as brought over the record, I consider it expedient to condone the delay in filing the application. 13 The application under Order 22 Rule 3 and the application for condonation of delay ( though filed under incorrect provision of law) are, accordingly, allowed.
Announced in the open court ( KAMLESH KUMAR)
On 23 September, 2008 ADDL. DISTT. JUDGE
DELHI
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