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2023 Supreme(Del) 2793
IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
S. K. Beri – Appellant
Versus
Deepak Beri & Ors. – Respondents
CS(OS) 162 of 2018
Decided On : 09-02-2023
Mr. Rajshekhar Rao, Senior Advocate with Mr. Samar Kachwaha, Mr.Raghavendra Bajaj, Ms. Shivangi Nanda, Mr. Agnish Aditya, Ms. Kavita Vinayak, Mr. Anmol Agarwal and Ms. Rini Mehra, Advocates, for the Plaintiff.
Mr. Akshay Makhija, Senior Advocate with Mr. Saurabh Seth and Ms. Seerat Deep Singh, Advocates, for the Defendant.
The central legal point established in the judgment is the determination of the legal representative and the 'right to sue' in the context of a deceased plaintiff, based on the interpretation of relevant provisions of the Code of Civil Procedure, 1908 (CPC) and the conflict of interest with the deceased plaintiff.
Headnote:
Review Petition - Impleadment of Legal Representative - Code of Civil Procedure, 1908 (CPC) - Section 2(11), Order XXII Rule 5 - The court reviewed the order and impleaded Atul Beri as the sole legal representative of Late Shri S.K. Beri, based on the interpretation of the 'right to sue' in favor of a legal representative and the conflict of interest with the deceased plaintiff. The court's decision was influenced by the legal provisions of Section 2(11) and Order XXII Rule 5 of the CPC, as well as the interpretations provided by the Karnataka High Court and the Supreme Court in relevant cases.
Fact of the Case:
The review petition was filed seeking review of the order impleading both Atul Beri and Deepak Beri as the legal representatives of the deceased plaintiff, Late Shri S.K Beri. The suit was filed by Late Shri S.K. Beri against his son, Deepak Beri, and his family members, seeking various reliefs. During the pendency of the suit, Late Shri S.K. Beri passed away, and a question arose regarding the impleadment of the legal representative.
Finding of the Court:
The court reviewed the order and impleaded Atul Beri as the sole legal representative of Late Shri S.K. Beri, considering the 'right to sue' and the conflict of interest with the deceased plaintiff. The court also clarified that Deepak Beri's rights and contentions in the present suit and another related suit would not be affected by this decision.
Issues: The main issue was the determination of the legal representative of the deceased plaintiff, Late Shri S.K. Beri, and the 'right to sue' in the context of the suit filed against his son, Deepak Beri, and his family members.
Ratio Decidendi: The court's decision was based on the interpretation of the 'right to sue' in favor of a legal representative and the conflict of interest with the deceased plaintiff, as well as the legal provisions of Section 2(11) and Order XXII Rule 5 of the Code of Civil Procedure, 1908 (CPC). The court also considered relevant observations from the Karnataka High Court and the Supreme Court in similar cases.
Final Decision: The review petition was allowed, and Atul Beri was impleaded as the sole legal representative of Late Shri S.K. Beri to represent his estate in the present suit, without prejudice to the rights and contentions of Deepak Beri in the present suit and another related suit.
JUDGMENT
Amit Bansal, J. (Oral)
I.A. 18915/2022 (delay 183 days in filing Review Petition)
1. For the reasons stated in the application, the same is allowed and the delay of 183 days in filing the review petition is condoned.
I.A 2496/2023 (Condonation of delay of 54 days in filing reply to Review pet.)
2. For the reasons stated in the application, the same is allowed and the delay of 54 days in filing reply to the review petition is condoned.
REVIEW PET. 303/2022
3. The present review petition has been filed on behalf of the review petitioner, Atul Beri, seeking review of the order dated 6th April, 2022, wherein this Court impleaded both Atul Beri and Deepak Beri as the legal representatives of the deceased plaintiff, Late Shri S.K Beri. Both Atul Beri and Deepak Beri are the sons of Late Shri S.K. Beri.
4. Notice in the present review petition was issued on 18th November, 2022. Reply has been filed on behalf of the defendant no.1, Deepak Beri.
5. The present suit was filed on behalf of Late Shri S.K. Beri against one of his sons, Deepak Beri, and his wife and children seeking the following reliefs:
a) Pass a Decree of Possession in favour of the Plaintiff and against the Defendants with regard the entire Basement and entire Second Floor consisting of Two Bed Rooms with attached toilets and Dressing Rooms, Family Lounge, Guest Toilet, Drawing Cum Dining Room, One Kitchen and the area above the entire second floor including one Servant quarter with Kitchen and Toilet constructed thereon, with right to construct and own any areas/floors on the said terrace and subsequent terraces thereupon and there above, upto the limits of the sky, and car parking space for one car along with proportionate undivided, indivisible and impartible ownership rights in the plot of land measuring 400 sq. yards, bearing No.E-539, Greater Kailash Part-II, New Delhi-110048.
b) Pass a Decree of Permanent Injunction against the Defendants and in favour of the Plaintiff, permanently restraining the Defendants, their agents, representatives, legal heirs and any other persons claiming a right through them, from transferring, selling, alienating and creating any third party rights with respect to the entire Basement and entire Second Floor consisting of Two Bed Rooms with attached toilets and Dressing Rooms, Family Lounge, Guest Toilet, Drawing Cum Dining Room, One Kitchen and the area above the entire second floor including one Servant quarter with Kitchen and Toilet constructed thereon, with right to construct and own any areas/floors on the said terrace and subsequent terraces thereupon and there above, upto the limits of the sky, and car parking space for one car along with proportionate undivided, indivisible and impartible ownership rights in the plot of land measuring 400 sq. yards, bearing No. E-539, Greater Kailash Part-II, New Delhi-110048.
c) Pass a Decree of Mandatory Injunction against the Defendants and in favour of the Plaintiff, directing the Defendants to not disturb the peaceful possession of the Plaintiff of the entire Basement and entire Second Floor consisting of Two Bed Rooms with attached toilets and Dressing Rooms, Family Lounge, Guest Toilet, Drawing Cum Dining Room, One Kitchen and the area above the entire second floor including one Servant quarter with Kitchen and Toilet constructed thereon, with right to construct and own any areas/floors on the said terrace and subsequent terraces thereupon and there above, upto the limits of the sky, and car parking space for one car along with proportionate undivided, indivisible and impartible ownership rights in the plot of land measuring 400 sq. yards, bearing No. E- 539, Greater Kailash Part-II, New Delhi-110048."
6. Deepak Beri filed a written statement controverting the averments made in the plaint and seeking dismissal of the suit.
7. During the pendency of the present suit, Shri S.K. Beri expired on 20th February, 2021. Thereafter, an application under Order XXII Rule 3(1) of the Cod
