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2024 Supreme(Online)(DEL) 10569
HIGH COURT OF DELHI
Shalinder Kaur, J
USHA RANI (DECEASED) THR LRS – Appellant
Versus
KANTA & ORS – Respondent
CM(M)-144/2020
Mr. M. Hasibuddin, Adv.
Mr. Aditya Singh, Adv. for R-2.
An application under Order XXII Rule 3 CPC, if filed belatedly, can be treated as an application to set aside the abatement, subject to sufficient cause being made to condone the delay in filing the application.
Headnote:
Abatement - Civil Suit - The court allowed the application for substitution of legal heirs of the deceased plaintiff, treating it as an application to set aside the abatement of the suit, and set aside the impugned order dated 23.12.2019. The legal heirs of the deceased plaintiff were brought on record, and the trial of the case was directed to proceed as per law.
Fact of the Case:
The petitioners filed a petition under Article 227 of the Constitution of India to set aside the impugned order dated 23.12.2019, which dismissed the applications filed by the legal heirs of the deceased plaintiff under Order XXII Rule 3 of CPC and Section 5 of the Limitation Act, resulting in the abatement of the suit.
Finding of the Court:
The court allowed the application for substitution of legal heirs, treating it as an application to set aside the abatement of the suit, and set aside the impugned order. The legal heirs of the deceased plaintiff were brought on record, and the trial of the case was directed to proceed as per law.
Issues: The main issue was the dismissal of the applications filed by the legal heirs of the deceased plaintiff under Order XXII Rule 3 of CPC and Section 5 of the Limitation Act, resulting in the abatement of the suit.
Ratio Decidendi: The court held that an application under Order XXII Rule 3 CPC, if filed belatedly, can be treated as an application to set aside the abatement, subject to sufficient cause being made to condone the delay in filing the application.
Final Decision: The impugned order dated 23.12.2019 was set aside, and the legal heirs of the deceased plaintiff were brought on record. The trial of the case was directed to proceed as per law.
JUDGEMENT
1. The present CM(M) petition no.144/2020 has been filed by the petitioners under Article 227 of the Constitution of India to set aside the impugned order dated 23.12.2019 passed by learned Additional District Judge-02 & Waqf Tribunal, Patiala House Courts, New Delhi (hereinafter referred to as ‘Trial Court’) in C.S No. 58511/2016, titled as “Smt.Usha Rani vs. Smt. Shakuntala Devi & Ors.” wherein the learned Trial Court has dismissed the applications filed by the legal heirs of Late Smt. Usha Rani/original plaintiff under Order XXII Rule 3 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) and Section 5 of the Limitation Act, 1963. Moreso, the learned Trial Court held that the present suit has already been abated for not filing the application under Order XXII Rule 3 CPC within statutory period of limitation.
2. The brief facts necessary for disposal of the present petition are that Late Shri Kailash Narain also known as Kailash Chand was the Page 2 of 11 absolute owner of the two properties i.e. property no. 642, bearing khasra no. 522/1 near Bhaiya Chowk, Mahipalpur, New Delhi and property no. 847, plot no.2, bearing khasra no. 537, Mahipalpur, New Delhi.
3. It is the case of the original plaintiff that her father, Late Shri Kailash Narain died intestate on 21.06.1992. Therefore, as per the Hindu Succession Act, 1956 all his legal heirs i.e. Late Smt. Shakuntala Devi (wife), Late Shri Ashwini Kumar (son), Late Smt. Usha Rani (daughter) and Smt. Kanta (daughter) are entitled to 1/4th share each in the above- mentioned properties.
4. Further, after the demise of her father, all the original documents of the properties were taken into custody by her brother, Late Shri Ashwini Kumar. After the demise of her brother on 30.09.2006, her sister-in-law, Smt. Rajni/respondent no. 2 herein took the possession of the said documents. It is the case of the original plaintiff that in the year 2008, she came to know that one of the properties bearing khasra no. 537 was secretly transferred by her brother in the name of respondent no. 2 through a fabricated Will and Power of attorney dated 28.09.2006.
5. Conversely, it is the case of respondent no. 2 that Late Shri Kailash Narain had 1/12th share in the said properties and after his death, the same was mutated in favour of his son, Late Shri Ashwini Kumar vide mutation order dated 20.02.2004 passed by the Tehsildar, Vasant Vihar vide Sumar No. 382, Misal No. 402/2003-04. Therefore, in view of this order, Late Shri Ashwini Kumar became the absolute owner of both the properties.
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6. Further, it is the case of respondent no. 2 that her husband, Late Shri Ashwini Kumar had willfully given her the property bearing khasra no. 537 via a registered Will and Power of attorney dated 28.09.2006. After his death, another property bearing khasra no. 522/1 was mutated in favour of their son, Shri Hemant vide mutation order dated 30.11.2006 passed by the Tehsildar, Vasant Vihar vide Sumar No. 436, Misal No. 157/2006-07.
7. Subsequently, the original plaintiff filed a civil suit in 2010 as an indigent person for partition, declaration, rendition of account and injunction before this Court in respect of the said ancestral properties.
Moreover, the original plaintiff also sought a decree declaring the Will and Power of Attorney dated 28.09.2006 and the mutation in the revenue record as illegal and null and void.
8. Vide order dated 06.10.2015, this Court allowed the indigent person application bearing I.P.A No.15/2010 filed by the original plaintiff and the suit was numbered as CS(OS) No. 3091/2015. Meanwhile, a notification for change of pecuniary jurisdiction of Civil Courts had come into force. In view of the said notification, the suit bearing CS(OS) No. 3091/2015 pending before this Court was transferred to the learned District & Session Judge, Patiala House Court, New Delhi.
9. During the pendency of the suit, the original plai
