Back
2024 Supreme(Online)(DEL) 16064
HIGH COURT OF DELHI
Saurabh Banerjee, J
NOOR AFSHAN – Appellant
Versus
SHIV LOCK HOUSE & OTHERS – Respondent
CS(COMM)-632/2016
The court ruled that an application for substitution must be filed diligently, and inordinate delays can lead to abatement of the suit.
Headnote:(A) Civil Procedure Code - Order XII Rule 10 and Section 151 - Substitution of plaintiff - Application for substitution of son of deceased plaintiff dismissed due to inordinate delay of over six years in filing the application and lack of diligence in pursuing rights - Court found no sufficient reasons to allow the application. (Paras 1-17)
(B) Abatement of suit - Suit abated due to non-prosecution following the dismissal of the substitution application - No adjudication required for pending applications. (Paras 18-19)
Facts of the case:
The applicant sought to substitute himself as the plaintiff after the original plaintiff passed away on 24.12.2020, claiming ownership of a trademark based on an agreement executed in 2016.
Findings of Court:
The court noted the applicant's prolonged silence and lack of action for over six years, leading to the conclusion that the suit had abated.
Issues: The main issues were the applicant's delay in filing for substitution and whether sufficient reasons existed to allow the application.
Ratio Decidendi: The court emphasized the importance of diligence in pursuing legal rights and found that the applicant's delay and lack of action precluded him from being substituted as the plaintiff.
Result: Application dismissed; suit abated.
J U D G M E N T
I.A. 16425/2023(O 22 R 10 CPC )
1. By virtue of the present application under Order XII rule 10 read with Section 151 of the Civil Procedure Code [ CPC ] for substitution of the name of the applicant Mr. Abdul Wahid / son of the erstwhile/ original plaintiff (hereinafter referred to as ‘applicant’) in place of the erstwhile/ original plaintiff Ms. Noor Afshan (hereinafter referred to as ‘plaintiff’).
2. Learned counsel for the applicant submits that the plaintiff had authorised him to file and prosecute the present suit on her behalf for all intents and purposes and that she expired on 24.12.2020. He further submits that the said plaintiff executed a Family Settlement-cum-Agreement dated
17.05.2016 (hereinafter referred to as the “Agreement”) in his favour with respect to the trademark “Koyo” qua which the present suit was instituted by her and which is still pending before this Court.
3. Learned counsel for the applicant also submits that after the demise of the plaintiff, the applicant filed an application before the Trade Mark Registry alongwith the said Agreement as also other documents. He then submits that since the applicant has become the sole owner of the trademark “Koyo”, he prays for allowing the present application and substitution of applicant as the plaintiff herein.
4. In support of his arguments, learned counsel for the applicant seeks to rely upon Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. /strong>. (2001) 6 SCC 534 , Ghafoor Ahmad Khan vs. Bashir Ahmad Khan (Dead) by Lrs. (1982) 3 SCC 486 , Namita Ganguly vs. Manik Chand Jain 2000 SCC OnLine Cal 286 , Sheela Wanti vs. Kuldeep Singh and Ors. 2002 SCC OnLine Del 905 and Vellaya Grounder and Ors. vs. A.P. Ramalingam 1997 SCC OnLine Mad 805 (hereinafter referred to as the “Judgments (Supra)”) wherein, according to him, under similar circumstances, similar reliefs as sought by the applicant herein, were granted by the Court(s).
5. In response, learned counsel for the defendant submits that the applicant, being the son of the plaintiff, and/ or her legal representatives had not filed any application under the mandatory provisions of Order XII rule 3 CPC despite the plaintiff having expired way back on 24.12.2020. In fact, it is his contention that the applicant cannot be allowed to do so and the present suit already stands abated long back.
6. Learned counsel for the defendant submits that the applicant was silent throughout his cross-examination before this Court when he was appearing as PW1 for and on behalf of the plaintiff. The same itself creates a doubt.
7. Learned counsel for the defendant lastly submits that the Agreement has been executed on an insufficient stamp paper and there is no assignment or devolution of any interest of any kind.
8. At the outset, in the considered opinion of this Court, for arriving at a finding in the present application, this Court has to keep in mind that the learned counsel for applicant has today, prior to addressing his arguments in the present application, already withdrawn the application under Order XXII rule 9(2) CPC which was filed by him subsequent to the present application.
9. After hearing the learned counsel for parties as also upon going through the pleadings and documents on record as well as upon queries raised by this Court, it is an admitted position, firstly that the applicant is the son of the erstwhile plaintiff; secondly that the plaintiff executed the said Agreement in his favour during the pendency of the present suit way back on 17.05.2016; thirdly that the plaintiff left for her heavenly abode 24.12.2020; fourthly that the plaintiff was all throughout residing with the applicant until her demise; fifthly that the applicantnot only filed his affidavit in evidence as PW1 for and on behalf of the plaintiff but also underwent cross-examination thereafter, and which has since been concluded long back on 25.10.2016 subsequent to the execution of the said Agreement on 17.05.2016;
