CM(M) 866/2022

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$~2 (Appellate)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CM(M) 866/2022, CM 37262/2022 (stay) & CM 37263/2022

(exemption)

M-POWER ENERGY INDIA (P) LTD & ANR...... Petitioners

Through:

Mr. Anil Kher, Sr. Advocate

with Mr. Aditya Narain, Mr. Ankur Gosain,

Mr. Sandeep Thukral and Mr. Kunal Kher,

Advs.

versus

SUMANA MAZUMDAR (SINCE DECEASED)

THROUGH MS SADHANA MAZUMDAR ..... Respondent

Through:

Mr.

Sujoy

Kumar,

Mr.

Arvindam Ghose and Mr. Raghav Kumar,

Advs.

CORAM:

HON’BLE MR. JUSTICE C. HARI SHANKAR

%

J U D G M E N T (ORAL)

07.10.2022

1.

This petition under Article 227 of the Constitution of India

emanates from CS 10886/2016, instituted by the original plaintiff

Sumana Mazumdar (since deceased and sought to be represented by

her sister and sole surviving legal heir Sadhana Mazumdar) against the

petitioners and other defendants.

2.

Given the nature of the controversy in this petition, it is

necessary to distil, in brief, the claim of Sumana Mazumdar in the suit

instituted by her.

3.

Sumana Mazumdar joined the services of Petitioner 1 on 26^th

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004137

CM(M) 866/2022

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November 2002 as Senior Manager, Business Development. She was

promoted as Assistant General Manager, Business Development on 1^st

April 2006 and, further, as Head, Business Development on 1^st April

2008. She continued, except for a brief stint when she was transferred

to another office, in the service of Petitioner 1 till 8^th July 2014, when

her services were terminated. CS 10886/2016, instituted by Sumana

Mazumdar, assails the said termination on various grounds and seeks

(i) a declaration that the termination of her services on 8^th July 2014

was illegal, wrongful, mala fide and arbitrary and (ii) damages to the

tune of ₹ 1.5 crores alongwith interest @ 18% per annum, along with

costs.

4.

Sumana Mazumdar expired during the pendency of the

aforesaid suit instituted by her. Her sister Sadhana Mazumdar moved

an application under Order XXII Rule 3(1) of the Code of Civil

Procedure, 1908 (CPC), seeking to be impleaded as plaintiff in place

of Sumana Mazumdar.

5.

The impugned order dated 24^th May 2022 has come to be passed

on the said application. The learned Additional District Judge (―the

learned ADJ‖) has allowed the application. Aggrieved, the petitioners,

as Defendants 1 and 6 in CS 10886/2016, have approached this Court,

invoking the writ jurisdiction vested in it by Article 227 of the

Constitution of India.

6.

Sadhana Mazumdar, who is Respondent 1 in the present

petition, contended that she was the sole surviving legal heir of

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004137

CM(M) 866/2022

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Sumana Mazumdar, the original plaintiff and was, therefore, entitled

to continue the suit and being impleaded in her place. That Sadhana

Mazumdar is, in fact, the sole surviving legal heir of Sumana

Mazumdar, has not been disputed.

7.

Rules (1) and 3(1) of Order XXII of the CPC read thus:

―ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

1.

No abatement by party's death if right to sue

survives. – The death of a plaintiff or defendant shall not

cause the suit to abate if the right to sue survives.

*****

3.

Procedure in case of death of one of several

plaintiffs or of sole plaintiff. –

(1)

Where one of two or more plaintiffs dies and

the right to sue does not survive to the surviving

plaintiff or plaintiffs alone, or a sole plaintiff or sole

surviving plaintiff dies and the right to sue survives,

the Court, on an application made in that behalf, shall

cause the legal representative of the deceased plaintiff

to be made a party and shall proceed with the suit.‖

8.

The learned ADJ held that, as the right to sue survived in favour

of Sadhana Mazumdar, she was entitled to continue the s