Delhi High Court
Mrs. Sheela Wanti vs Kuldeep Singh And Anr. on 20 August, 2002
Equivalent citations: 100(2002)DLT201
Author: R.C. Chopra
Bench: R.C. Chopra
JUDGMENT R.C. Chopra, J.
1. This order shall dispose of an application under Order 22 Rules 9 and 10 read with Section 151 of the CPC and Section 5 of the Limitation Act filed by the applicant Amarjit Singh with a prayer to set aside the abatement, condone the delay if any, in the filing of the application and substitute the application in place of the deceased plaintiff in Suit No. 1821/94.
2. The facts relevant for the disposal of this application, briefly stated, are that the deceased plaintiff Smt. Sheela Wanti was the mother of the applicant Amarjit Singh and respondents-defendants Kuldeep Singh and Gurbachan Singh. She filed a suit for possession against the defendants alleging that the defendants were in unauthorised occupation of the first and second floor portions of property No. E-216, New Rajinder Nagar, New Delhi and were not vacating the said portions inspite of requests and notice. The plaintiff died n 9.1.1999. On 21.1.1999 her counsel informed the Court that the plaintiff had died and sought adjournment for seeking necessary instructions in the matter. On 28.7.1999 the learned Counsel for the defendants pointed out that the suit had abated as no steps had been taken for the substitution of the LRs of the deceased plaintiff. Accordingly vide order dated 28.7.1999 the Court held that the suit had abated.
3. On 12.8.1999, i.e. after about 15 days of the abatement orders, the present applicant moved I.A. No. 8621/99 under Order 22 Rule 10 read with Section 151 of the CPC praying for permission to continue the suit and substitute his name in place of the deceased plaintiff in as much as vide a gift deed dated 23.10.1998 the plaintiff had gifted the suit property in his favor. It was also stated that vide orders dated 31.5.1999 the L&DO had mutated the property in his name. A notice of this application was issued to the defendants who filed replies opposing the prayer made by the applicant. On 22.1.2001 the aforesaid application I.A. 8621/99 was withdrawn with a prayer for liberty to file fresh application. The Court granted leave and liberty to the applicant and dismissed the application as withdrawn. The present application was filed on 5.2.2001 pleading that in view of the Gift Deed which was a registered document the applicant had become owner of suit property and such he may be substituted in place of the deceased plaintiff. It was also prayed that the abatement may be set aside and the delay, if any, may be condoned. The defendants opposed this application also pleading that the application was not maintainable and abatement could not be set aside. They disputed the gift deed in favor of the applicant.
4. I have heard learned counsel for the applicant and learned counsel for the respondents-defendants. I have gone through the records of the case.
5. Before adverting to the merits of the application under consideration this Court must make it clear that a substitution under Order 22 Rule 3 of the CPC and a substitution under Rule 10 of Order 22 CPC stand on altogether different footing and operate in different fields. A substitution under Order 22 Rule 3 of the CPC is to bring on record the LRs of a deceased plaintiff in whose favor the right to sue survives whereas Rule 10 covers the cases in which by way of assignment, creation or devolution of interest, during the pendency of the suit, a person has acquired a right in suit property and as such prays that he may be substituted in place of plaintiff. Rule 10 of Order 22 CPC does not prescribe any limitation for the impleadment of a person upon whom the interest in the property has devolved and as such at any time during the pendency of the suit he may be substituted. In Ghafoor Ahmad Khan v. Bashir Ahmad Khan , the Supreme Court set aside the orders upholding abatement of an appeal for the reason that during the life time of the sole respondent/ plaintiff, there was a transfer of the property by way of gift to his wife/applicant and the cas being a case of devolution of interest was filling under Rule 10 of Order 22 of the CPC and as such there was no question of abatement. Rule 9 of Order 22 of CPC permits setting aside of abatement or dismissal upon an application of an assignor also who might have acquired interest as defined in Rule 10 Order 22 CPC. Therefore upon the application of an assignor even the abatement or dismissal can be set aside and the suit may be revived.
6. Coming to the facts of the present case it is found that after the death of the plaintiff on 9.1.1999 Learned Counsel for the plaintiff did not inform the Court that prior to the death of the plaintiff the interest in the suit property had devolved upon the present applicant. This could be on account of the reason that Counsel had no information about the Gift Deed executed by deceased plaintiff. Since there is no limitation for filing an application under Rule 10 of Order 22 CPC the Court would not have ordered abatement of the suit and would have certainly given time for filing an application under Rule 10 of Order 22 CPC. It is also worth mentioning that soon after the abatement orders, which were passed on 28.7.1999, the applicant moved I.A. No. 8621/99 on 12.8.1999 itself pleading for his substitution under Order 22 Rule 10 CPC. This application was withdrawn on 22.1.2001 with liberty to file fresh application as it did not contain any prayer for setting aside abatement. A fresh application, which is under consideration, was moved on 5.2.2001 i.e. within about 15 days of the withdrawal of the first application. It is, therefore, clear that both the application were filed promptly after the abatement orders.
7. It is borne out from the record that after the death of his mother the applicant was taking steps to get the property in question mutated in his name. The gift deed in favor of the applicant was dated 23.10.1998 and the plaintiff expired on 9.1.1999 itself. The letter of the L&DO informing the applicant about the mutation of the property in his name was dated 31.5.1999. The applicant who had a registered Gift Deed and had acquired ownership rights in the suit property had no reason to withhold the information and allow the suit to get abated or dismissed. There is no delay in moving the Court for setting aside the abatement as an application under Rule 9 of Order 22 CPC could be filed within 60 days of abatement order in terms of Article 121 of Limitation Act. The first application was filed within about 15 days of abatement orders and the second application was also filed within about 15 days of the withdrawal of the first application. The present application was moved after withdrawing the first application with liberty to file fresh application. The present application may not be within 60 days of abatement but the first application was within 60 days of abatement and the said application was permitted by the Court to be withdrawn with liberty to file fresh application. The delay in the moving of the present application, therefore, must be condoned. It is ordered accordingly. The application under Rule 9 Order 22 CPC is also allowed and the abatement is set aside. The suit is revived.
8. The prayer of the applicant for substituting his name in palace of the deceased-plaintiff in terms of Rule 10 of Order 22 of the CPC is also allowed in view of the Gift Deed dated 23.10.1998 which is registered and according to which the suit property has devolved upon the applicant. The applicant stands substituted in place of the deceased plaintiff by virtue of Rule 10 of Order 22 CPC. The application stands disposed of accordingly.
9. The amended memo of parties be filed.
10. Nothing stated in this order shall be taken as an expression of opinion on the merits of the suit. The parties are at liberty to raise their pleas irrespective of the observations made herein.