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HIGH COURT OF DELHI
CM(M) No. 57/2013 & CM No. 821/2013 (stay)
19th August , 2014 KRISHAN KUMAR BANSAL (SINCE DECEASED) THR. HIS LRS. ......Petitioners
Through: Mr. H.C.Mittal and Mr. Amit Kumar, Advocates.
Through: Mr. S.C.Singhal, Advocate.
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 first appellate court dated 25.4.2012 by which the first appellate court has set aside the order of the trial court dated 24.12.2011 by which the trial court had dismissed the application under Order 22 Rule 3 CPC filed by the respondent-plaintiff for bringing the legal heirs of the deceased petitioner/defendant on record in the subject suit. 2014:DHC:3943
2. The subject suit is a suit for permanent injunction with respect to an immovable property, and consequently what are the rights which are claimed in an immovable property, would be very much in issue in the suit, if not explicitly, definitely by implication, and accordingly since the rights pertain to an immovable property, the right to sue will survive on the death of the defendant.
3. Learned counsel for the petitioner wanted me to go through the averments made in the written statement on the merits of the defence, however, merits of the matter have not to be examined while dealing with an application to substitute the legal heirs of the defendant and at the stage of dealing with an application under Order 22 Rule 3 CPC what has only to be seen is that if the content of the plaint are taken as correct whether the right to sue survives. Because in the present suit the issue is with respect to rights claimed in an immovable property, the right to sue, in terms of the averments in the plaint, does survive.
4. I put it to counsel for the petitioner that if the right to sue does not survive as argued by the petitioners who are the legal heirs of the deceased defendant/petitioners, then are the petitioners ready to make a statement that they will not sell, transfer or alienate the suit property, but obviously, to this aspect counsel for the petitioners did not want to give such a statement, thus showing that the right to sue survives qua the immovable property in question namely B-3/9, Janak Puri, Delhi.
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