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HIGH COURT OF DELHI
CM(M) No. 919/2013 19th August , 2014 NADIRA BEGUM ......Petitioner
Through: Mr. K.D.Saini and Mr. Vikram Saini, Advocates.
Through: None.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. The challenge by means of this petition under Article 227 of the Constitution of India is to the impugned order of the trial court dated 31.7.2013 which has allowed an application under Order 22 Rule 3 of Code of Civil Procedure, 1908 (CPC) read with Section 5 of the Limitation Act, 1963 for substitution of the legal heirs of plaintiff no.1.
2. A reading of the impugned order shows that the reason for delay in filing of the application was that the earlier counsel in spite of being told of the death of the plaintiff no. 1 did not move an application to bring on record the legal heirs of the deceased plaintiff no. 1. Accordingly, the trial court 2014:DHC:3944 has held that for lapse on the part of the counsel, party should not suffer and consequently legal heirs were brought on record.
3. I may note that the subject suit is a suit for possession, mesne profits etc and in such a suit right to sue survives upon the legal heirs of plaintiff no.1. Legal heirs of plaintiff no.1 had to be brought on record also because there were not one but two plaintiffs in the suit, and the plaintiff no.2 was continuing to pursue the suit, till the subject application was filed and allowed for bringing on record the legal heirs of plaintiff no.1.
4. Powers under Article 227 of the Constitution of India are not appellate powers. Also, powers under Article 227 of the Constitution of India as is settled law, are not to be exercised unless injustice results because of an impugned order. Even if an order is illegal, as long as there is no injustice, courts do not exercise discretionary powers under Article 227 of the Constitution of India. In this case I may note that in fact petitioners did not even file a reply to the applications for bringing on record the legal heirs and for condonation of delay, and therefore the contents of the applications were deemed to be admitted under Order 8 Rule 10 CPC read with Section 141 CPC.
5. In view of the above, there is no merit in the petition and the same is therefore dismissed, leaving the parties to bear their own costs.
AUGUST 19, 2014 VALMIKI J. MEHTA, J. ib