The main legal point established is that the timely filing of applications under Order XXII Rule 4 and Rule 9 of the CPC is crucial, and delay cannot be condoned without sufficient cause. Negligence on the part of the plaintiff in not being vigilant does not justify the delay.

JUDGMENT

Amit Bansal, J. - The present petition under Article 227 of the Constitution of India impugns the order dated 14th February, 2020 passed by the Court of Additional District Judge-06, South East District, Saket Courts, New Delhi, whereby the application under Order XXII Rule 4 of the Code of Civil Procedure, 1908, (CPC), filed on behalf of the respondent no.1 who was the plaintiff before the Trial Court (plaintiff), has been allowed.

2. Notice was issued in this petition on 14th January, 2021, and thereafter reply has been filed on behalf of the plaintiff.

3. Brief facts pleaded in the present case are set out below:-

3.1 The suit from which the present petition arises was filed on behalf of the plaintiff in July, 2015 for declaration and perpetual injunction against one Smt. Tej Kaur who was defendant no. 1 in the suit and the petitioner herein (defendant no. 2), for declaring the plaintiff to be the owner of the property bearing municipal No.152A Sarai Julaina, Village Jogabai, New Delhi admeasuring 190 sq.yds. forming part of khasra no.598/7/1.

3.2 The suit was filed before this Court in July, 2015 and summons were issued on 31st July, 2015.

3.3 The process server of the Court in his report dated 20th October, 2015, recorded the demise of defendant no. 1.

3.4 Subsequently, the suit was transferred to the Trial Court vide order dated 26th November, 2015, on account of pecuniary jurisdiction.

3.5 Upon the transfer of the present suit to the District Judge, fresh service was issued to the defendants in the suit.

3.6 It appears that the counsels for the parties and the Trial Court, did not notice the aforesaid report filed by the process server and fresh summons continued to be issued to the defendant no.1. It was only on 7th October, 2017, that the counsel for the defendant no. 2 informed the Trial Court that defendant no.1 has expired.

3.7 Thereupon, on 8th November, 2017, the application was filed on behalf of plaintiff under Order XXII Rule 4 of the CPC for substitution of legal heirs of the deceased defendant no.1.

3.8 The defendant no. 2 filed reply to the said application.

3.9 The said application was allowed by the Trial Court vide the impugned order, by holding/observing that:

(i) There is no denying the proposition of law that date of death determines the limitation for filing application under Order XXII Rule 4 of the CPC;

(ii) Directions for service of defendant no.1 continued to be passed in the suit, despite the report of the process server that defendant no.1 had expired;

(iii) The plaintiff immediately filed an application under Order XXII Rule 4 of the CPC upon the factum of death of defendant no. 1 being pointed out to him;

(iv) In this case, delay has been sufficiently explained by the plaintiff and therefore, needs to be condoned;

(v) The application under Order XXII Rule 4 of the CPC is treated as application under Order XXII Rule 9 of the CPC read with Section 5 of the Limitation Act, 1963.

(vi) Accordingly, the delay in filing the application was condoned and the abatement on account of delay was also set aside.

4. Counsel appearing on behalf of the defendant no. 2 has submitted:

(i) The defendant no. 2 had also filed a suit for permanent and mandatory injunction against the plaintiff and the said suit was decreed by the Trial Court on 22nd February, 2010;

(ii) The challenge made to the aforesaid decree by the plaintiff was rejected upto the Supreme Court vide order dated 20th August, 2014.

(iii) It was only thereupon, that the present suit was filed on behalf of the plaintiff in July, 2015.

(iv) Application filed on behalf of the plaintiff under Order XXII Rule 4 of the CPC was not accompanied by any application under Section 5 of the Limitation Act for condonation of delay and hence, delay could not have been condoned;

(v) That the application filed on behalf of the plaintiff is a cryptic application where no particulars have been given;

(vi) No application under Order XXII Rule 9 of the CPC was filed on behalf of the p