Delhi High Court
Ajay Shankar Mathur & Anr vs Rama Mathur (Late) Thr Ler Lr Vijay ... on 18 July, 2016
Author: Jayant Nath
Bench: Jayant Nath
$~A-27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18.07.2016
+ CM(M) 674/2016
AJAY SHANKAR MATHUR & ANR ..... Petitioners
Through Mr.Manoj K. Srivastva, Advocate.
versus
RAMA MATHUR (LATE) THR LER
LR VIJAY SHANKAR MATHUR ..... Respondent
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
CM No. 24816/2016 (exemption) Exemption is allowed subject to all just exceptions. CM(M) 674/2016 and CM Nos. 24814/2016 (stay) and 24815/2016 (directions)
1. By the present petition, the petitioners seek to impugn the order of the trial court dated 09.05.2016.
2. The controversy revolves around a suit for eviction, possession and mesne profits filed by Smt. Rama Mathur against the petitioners. Smt. Rama Mathur was the mother of the petitioners. The trial of the suit was completed and the matter was fixed at the stage of final arguments. Before the arguments could be heard, the plaintiff in the suit, namely, Smt. Rama CM(M) 674/2016 Page 1 of 6 Mathur expired. One of her other sons, namely, Shri Vijay Mathur thereafter moved an application under Order XXII Rule 3 CPC stating that the plaintiff in her lifetime had executed a Will dated 03.09.2007 in his favour and therefore, on the strength of the Will, Shri Vijay Mathur prayed that he be brought on record as an LR of the deceased plaintiff. The court while disposing of this application under Order XXII Rule 3 CPC taking note of the fact that the petitioners (herein)/defendants are also claiming to be owner of the suit property by way of succession and disputed the Will dated 03.09.2007, framed issues for the purpose of deciding the application under Order XXII Rule 3 CPC.
3. By the impugned order the trial court dismissed the application for review filed by the petitioners and in exercise of powers under Section 151 CPC recalled the earlier order framing issues regarding impleadment of the LRs of the deceased plaintiff. The earlier order dated 04.09.2014 was recalled holding that no evidence is required to be taken on the issues as framed. The applicant-Shri Vijay Mathur, the younger son of the deceased plaintiff along with other LRs of the deceased plaintiff except respondent No.1 was impleaded on record. The court clarified that the court would not go into the issue about the execution and the validity of the Will dated 03.09.2007. It also noted the submission of the counsel for the petitioner that the petitioner had already challenged the Will dated 03.09.2007 in a separate suit.
4. Learned counsel appearing for the petitioner has submitted that the trial court first had to adjudicate upon whether the right to sue survives on the death of the deceased plaintiff/mother of the petitioners. He submits relying upon the judgment of the Supreme Court in the case of Smt. Phool CM(M) 674/2016 Page 2 of 6 Rani & Ors. vs. Sh. Naubat Rai Ahluwalia, AIR 1973 SC 2110 that the right to sue would not survive and hence, the impugned order is liable to be set aside. He has stressed that this issue whether right to sue survives would have to be adjudicated upon by the trial court before allowing the application under Order XXII Rule 3 CPC.
5. When does a right to sue survive? Order XXII Rule 1 CPC provides that the death of a plaintiff or defendant shall not cause suit to abate if the right to sue survives. Reference may be had to the judgment of the Supreme Court in the case of Puran Singh and Others vs. State of Punjab and Others, (1996) 2 SCC 205/(MANU/SC/0298/1996) wherein the Supreme Court in paragraph 4 held as follows:-
"4. A personal action dies with the death of the person on the maxim "action personalis moritur cum persona". But this operates only in a limited class of actions ex delicto, such as action for damages for defamation, assault of other personal injuries not causing the death of the party, and in other actions where after the death of the party the granting of the relief would be nugatory Girja Nandini v. Bijendra Narain MANU/SC/0287/1966 : [1967]1SCR93 . But there were other case where the right to sue survives in spite of the death of the person against whom the proceedings had been initiated and such right continues to exist against the legal representative of the deceased who was a party to the proceeding. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit, therefore, cannot be continued. But if the right to CM(M) 674/2016 Page 3 of 6 sue survives against the legal representative of the original defendant, then procedures have been prescribed in Order 22 to bring the legal representative on record within the time prescribed..."
6. Reference may also be had to the judgment of the Supreme Court in the case of Smt. Phool Rani & Ors. vs. Sh. Naubat Rai Ahluwalia (supra) the judgment relied upon by the petitioner. The court elaborated as to when the right to sue would survive and held as follows:-
"9. .. It is patent and would be a truism to say that the death of the plaintiff will not cause the ejectment proceedings to abate if the right to sue survives. That is the formula contained in Order 22 Rule 1 of the CPC, a formula simple in its wording but not simple in its application. The "right to sue" as said succinctly in Sarat Chandra v. Nani Mohan (1909) ILR 36 Cal. 799 means "the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death".
Thus contracts involving the exercise of special skill like a promise to paint a picture do not bind the representatives of the promisor nor do they create in them a right that can survive the death of the promisor."
7. The Supreme Court noted that the said matter involved a petition filed under Section 14(1)(e) of the Delhi Rent Control Act. The Court concluded that the requirement pleaded in the ejectment application filed by the plaintiff was a personal cause inasmuch as it had been pleaded that the premises were required to be occupied by the plaintiff and his family. It was in these circumstances that the Supreme Court concluded that such a personal cause of action must perish with the plaintiff.
8. However, it may be noted that the above decision rendered in the case of Smt. Phool Rani & Ors. vs. Sh. Naubat Rai Ahluwalia (supra) was CM(M) 674/2016 Page 4 of 6 overruled by the decision of the larger bench of the Supreme Court in the case of Shantilal Thakordas and Ors. Vs. Chimanlal Maganlal Telwala (1976) 4 SCC 417. The Supreme Court in para 6 of the said judgment held as follows:-
"6. In our considered opinion in face of the wordings of Section 14(1)(e) of the Delhi Act, the view expressed in Phool Rani's case, as stated above, is not correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord."
9. A perusal of the plaint here would show that the suit is based on title to the property. The plaint clearly states that the plaintiff was the owner of the property in question. It is no doubt true that in para 12 of the suit, the plaintiff had pointed out her medical problems and stating that on account of this and the cruelty inflicted upon her by the petitioners and their children, she had cancelled the permission/license given to the petitioners vide legal notice dated 28.03.2006. These averments do not in any manner change the CM(M) 674/2016 Page 5 of 6 nature of the suit, namely, a suit for possession and mesne profits based on title. The suit being based on title and not on a personal action, the right to sue would survive. There is no merit in the contentions of the learned counsel for the petitioner. There is no infirmity in the impugned order.
10. The petition is dismissed.
JAYANT NATH, J.
JULY 18, 2016 rb CM(M) 674/2016 Page 6 of 6