Delhi District Court
Wazir Singh vs Shri Som Dutt on 30 November, 2010
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In the Court of Sh. P.K. Matto, Additional District Judge
Karkardooma Courts, Delhi.
RCA NO:19/09
Date of Institution :11.8.2009
Date of Reserving Judgment: 19.11.2010
Date on which judgment was pronounced: 30.11.2010
In Re:
Smt.Shanti Devi (Deceased)
w/o late Shri Harbans Singh
c/o Pandit Nanak Chand Sharma
r/o 46, Village Kondli
Post Office Vasundhara Enclave
Delhi110 096.
Through her son and daughter
1. Wazir Singh
s/o late Shri Harbans Singh
r/o 102, Bhupender Puri
Gali no.2, Tibra Road
Modi Nagar
Distt Ghazibad (UP).
2. Smt Raj Kaur
w/o Late Shri Harjeet Singh
r/o C259 Raja Ji Puram
Char Bagh
Lucknow (UP). ..............Appellants/Applicants
Versus
1.Shri Som Dutt
s/o late Shri Mukand lal
st
r/o D217,1 Floor
Gokal Puri
Delhi 110 094.
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2. Smt Sunita
w/o Shri Dharam Pal
r/o D217, Ground Floor,
Gokal puri
Delhi - 110 094
3. Dharam Pal
s/o Shri Suraj
r/o D217 Ground Floor
Gokal Puri
Delhi 110 094.
4. Director/Special Officer
Delhi Urban Shelter Improvement Board
Govt. of N.C.T of Delhi
Punarwas Awas Bhawan
I.P.Estate
New Delhi 110 002. ...............Respondents/Defendants.
: J U D G M E N T:
1. This is an appeal against the impugned order dated 1.6.2009 passed by the court of Shri G N Pandey, SCC/ASCJ/G, Judge, North East, vide which the application u/o 22 rule 3 of the CPC filed by the appellants/applicants has been dismissed.
2. Briefly stating, that the plaintiff Shanti Devi filed a suit for mandatory injunction seeking direction to the defendant no.4 and its employees/officers to receive and accept the licence fee/money from the plaintiff, in respect of plot/property no. D217, Gokal Puri, Delhi, and also sought to restrain the defendant no.4/respondent no.4, it's employees/officers from dealing in any manner with the defendant no.1/respondent no.1 namely Shri Som Dutt, 3 regarding the first floor and Smt Sunita and Dharampal regarding ground floor of the property bearing no. D217, Gokal Puri, Delhi.
3. During the pendency of the suit in the ld.trial court , the plaintiff Smt Shanti Devi died on dated 1.1.2009 and authorized representative of the plaintiff namely Shri Mishri lal had filed an application u/o 22 rule 4 of CPC on dated 20.3.2009 to bring the Legal Representatives of the deceased/plaintiff on record, the same was dismissed by the ld. trial court on dated 25.3.2009.
4. Thereafter, on dated 25.3.2009, Shri Mishri Lal i.e. Authorized Representative of the deceased/plaintiff filed an other application u/o 22 rule 3 of CPC to bring the Legal Representatives of the deceased/plaintiff on record. The same was also dismissed on dated 30.3.2009 by the ld. trial court.
5. Thereafter, on dated 13.4.2009, Shri Wazir Singh i.e. the son of deceased/plaintiff has filed an application u/o 22 rule 3 of CPC for impleading the legal heirs of the deceased/plaintiff namely Smt Shanti Devi, on the averments that an application u/o 22 rule 3 of CPC filed by Shri Mishri Lal s/o late Shri Babu Lal Verma i.e. the attorney/Authorized Representative of the deceased plaintiff to bring the legal heirs of the deceased/plaintiff, on record was dismissed by the ld. trial court, on dated 30.3.2009 and as per information collected by Shri Mishri Lal under RTI Act from Police officer of North East District, Seelampur, Delhi, vide letter no. 795/RTI/Cell/North East Distt, Delhi dated 23.3.2009, the plaintiff was expired on dated 1.1.2009. But the name of the deceased/plaintiff is not mentioned therein.
6. It is further stated that the applicants namely Shri Wazir Singh and Raj Kaur are the legal heirs of the deceased/plaintiff and the plaintiff is no more, as per the information received under the RTI Act and prayed for allowing 4 them to be impleaded, as Legal Heirs of the deceased/plaintiff. The defendant no.3 namely Shri Dharam Pal has filed the reply to the application and called the application being not maintainable. He has further stated that the applicants have failed to produce any death certificate of the plaintiff and they have also failed to produce any documentary proof to substantiate their contention that they are the legal heirs of the plaintiff. He has also stated that no cause of action arose to the applicants. He has also stated that no documentary proof has been placed on record to prove the death of the plaintiff. This defendant has denied that Wazir Singh is the son of the plaintiff. This defendant has further stated that the applicants are claiming to be the legal heirs of the plaintiff, but they do not know about the whereabouts of the plaintiff and he has denied that the applicants are either legal heirs or the relatives of the deceased and sought the dismissal of the application.
7. The ld. trial court, after hearing the parties, was pleased to dismiss the application of the applicants/appellants vide its order dated 1.6.2009 being time barred and also dismiss the suit being abated.
8. Feeling aggrieved with the impugned order under appeal, the appellants have preferred the present appeal.
9. The notices of the appeal were issued to the respondents, who have put their appearance through their counsels.
10. Record of the trial court is also requestioned.
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11.I have heard the ld.counsels for the parties and perused the record.
12.The ld.counsel for the appellants has submitted that Smt Shanti Devi i.e. the deceased/plaintiff was the mother of the appellants, who died on dated 1.9.2009 and the application u/o 22 rule 3 of CPC was filed by them before the ld. trial court for allowing them to be impleaded as legal heirs of the deceased plaintiff on dated 13.4.2009 and the fact of the death of the deceased plaintiff has come to the knowledge of the appellants, in the month of April 2009.
13.He has further submitted that the appellants being legal heirs of the deceased plaintiff are not governed by Article 120 of the Indian Limitation Act, which prescribes the period for filing application u/o 22 rule 3 of CPC, as 90 days and they are governed by Article 137 of the Indian Limitation Act in accordance with which the period of filing such application u/o 22 rule 3 is 3 years.
14.He has further submitted that even if, the appellants are governed by Article 120 of the Indian Limitation Act, then the period of limitation of 90 days is to be computed from the date of knowledge of the fact of death of the deceased plaintiff.
15.He has further submitted that since the appellants have come to understand about the death of the deceased plaintiff in the month of April 2009 and the applications u/o 22 rule 3 of CPC has been filed by them on 13.4.2009, so, the application of the appellants filed before the ld. trial court was well within 6 time and impugned order under appeal of the ld. trial court, vide which the application of the appellants has been dismissed is erroneous and liable to be set aside and prayed for allowing the appellants to be impleaded as legal heirs of the deceased plaintiff by way of allowing their present appeal.
16.Whereas, the ld.counsel for the respondents have submitted that the appellants have also failed to place on record any authenticated document to show that Smt Shanti Devi is no more in the world. They have also submitted that the appellants have failed to produce on record any proof of their identity. They have also stated that the appellants are claiming to be son and daughter of the deceased plaintiff, but, as they are not aware about the date of death of the deceased plaintiff and they have stated that they have come to understand about the death of the deceased plaintiff form Shri Mishri Lal and the information received under the right to information act from the police that too in the month of April 2009, which also creates clouds of suspicion regarding the identity of the appellants. They have also stated that the application of the appellants u/o 22 rule 3 was rightly dismissed by the ld. trial court being time barred and as per Article 120 of the Indian Limitation Act,the application u/o 22 rule 3 could be filed within 90 days from the date of death of the deceased plaintiff. They have further submitted that the time of limitation is computed from the date of death of deceased plaintiff and not from the date of knowledge and sought the dismissal of the appeal.
17.I have given thoughtful consideration to the submissions made by the counsels for the parties.
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18.In the case in hand the appellants are claiming to be the legal heirs(son and daughter) of the deceased plaintiff. The plaintiff is stated to have been died on dated 1.1.2009. Admittedly, the application u/o 22 rule 3 of CPC was filed by the appellants before the ld. trial court on dated 13.4.2009 which has been dismissed by the ld. trial court vide it's impugned order under appeal on dated 1.6.2009, being time barred. The perusal of Article 120 of the Indian Limitation Act makes it crystal clear that such application u/o 22 rule 3 of CPC could be filed within 90 days from the date of death of the deceased plaintiff, to which the appellants have miserably failed and the appellants have filed the application before the ld. trial court u/o 22 rule 3 of CPC on dated 13.4.2009 i.e. after the expiry of the statutory period of 90 days which is computed from the date of death of the deceased plaintiff. So, I do not find any force in the submissions of the ld. counsel for the appellants that the appellants are either governed by Article 137 of the Indian Limitation Act or the time of Limitation for filing such application is to be computed from the date of knowledge of the death of the plaintiff.
19.Since, in the case in hand, the plaintiff was died on dated 1.1.2009 and the appellants have filed an application u/o 22 rule 3 of CPC on dated 13.4.2009 i.e. beyond the period of 90 days as prescribed under Article 120 of Indian Limitation Act that too, without seeking any condonation of delay, so the ld. trial court has rightly dismissed the application of the appellants u/o 22 rule 3 of CPC being time barred.
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20.Accordingly, I do not find any infirmity in the impugned order under appeal, so, it does not require any interference therein, so the same stands upheld. The appeal of the appellants stands dismissed, being devoid of merit.
21.The record of the trial court be returned.
22.File be consigned to the record room.
Pronounced in the open court.
DATED: 30.11.2010 (P.K. Matto) Additional District Judge:
Karkardooma Courts, Delhi. #######