The court's decision was influenced by the mandatory provisions of Order XXII rules 4 and 5 CPC, the period of limitation for impleadment, and the impact of the Covid-19 pandemic on limitation periods.

JUDGEMENT

1. The present petition has been filed under Article 227 of the Constitution of India, 1950 by the petitioner seeking to set aside the impugned order dated 06.08.2022 passed by the court of Learned Additional District Judge -04 (South-East), Saket District Courts, New Delhi (hereinafter referred as “Trial Court”) in Civil Suit No. CS DJ 7531/2016, titled as “Balbir Singh Mathur &Anr. Vs. Ramesh Chand Sharma &Anr” whereby the Learned Trial Court, allowed the application under Order XXII Rule 4 &10A read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred as “CPC”).

2. Petitioner herein is the defendant no. 1, respondent no. 1 and 2 herein are the plaintiffs and respondent no. 3 is defendant no. 2 before the learned Trial Court which is pending adjudication.

Page 2 of 9

3. The relevant facts for the purpose of adjudication of the present case are that the respondent no. 1 & 2 herein filed a civil suit before the learned Trial Court for permanent and mandatory injunction and damages against the petitioner. Petitioner herein expired on 14.06.2020 and consequently, respondent no. 1 & 2 moved an application on 04.11.2020 under Order XXII Rule 4 & 10A read with Section 151 of CPC along with an application under Section 5 of Limitation Act, 1963 (hereinafter referred as “Act”) seeking to implead the legal representatives (hereinafter referred as „LRs‟) of the deceased petitioner. Subsequently, petitioner filed a reply to the said application under Order XXII Rule 4 & 10A CPC thereby taking objections that the suit got abated against petitioner after the expiry of the statutory period and that Vipin Sharma is the sole legal representative of the deceased petitioner. However, the learned Trial Court allowed the application for impleadment of Vipin Sharma and Honey Sharma which is impermissible, thus, the impugned order is patently illegal. Aggrieved by the said order, the petitioner has filed the present petition.

Submissions by the Petitioner

4. The learned counsel for the petitioner submits that, the suit got abated against the deceased petitioner after the expiry of the statutory window period of 90 days from the date of death of the petitioner as required under Order XXII Rule 4 (3) CPC read with Article 120 of the Schedule of the Act. Moreover, there was no specific application moved for setting aside of the abatement of the suit by the respondent no. 1 & 2 under Order XXII Rule 4 (5) CPC, therefore, the application moved under Order XXII Rule Page 3 of 9 4(3) CPC per se is not maintainable. The Reliance has been placed on the judgment delivered by the Hon‟ble Supreme Court in the case titled as T. Gnanavel v. T.S. Kanagaraj & Anr., 2009 (14) SCC 294.

5. It is further submitted that only Vipin Sharma is the rightful legal heir of the deceased petitioner. On the other hand, Honey Sharma is the daughter-in-law of the deceased petitioner. As per Section 2 (11) CPC, a legal representative is a person who in law represents the estate of the deceased person, therefore, under no circumstances the daughter-in-law is the LR of the deceased. Thus, in the aforesaid circumstances the impugned order be set aside.

Submissions by the Respondent:

6. Conversely, learned counsel for respondents submitted that the legal representatives of late Ramesh Chand Sharma have filed an application for their impleadment in another Suit No. 210134/2016 titled as “R.C Sharma v. Gajindrapal Anand” pending before the learned ADJ but as per knowledge of the respondents, no intimation to this effect whatsoever was given by the petitioner to the respondents or counsel for respondents or to the Learned Trial Court in the present suit pending before the learned Trial Court between the parties herein.

7. He further submitted that incorporation of Rule 10A in Order XXII CPC has made it obligatory on the parties to inform the court and to the opposite party about the death of plaintiff/defendan