Sh. Salek Ram and Anr. v. Sh. Dharma through LRs & Anr.

1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 11.2.2013 whereby the application filed by the legal heirs of the deceased defendant no.2 for their being impleaded as parties was allowed. By the same application, condonation of delay in filing the application was also condoned. I may state that what are the exact number of days of delay is not found on the record, but, it would 2014:DHC:3457 be around at best of two/three months inasmuch as the defendant no.2 expired on 6.6.2012 and the application was moved in the year 2012 itself.

2. The subject suit was a suit for injunction whereby the plaintiffs/petitioners claim rights in the suit property admeasuring 500 sq yds situated in khasra no.302 of village Karawal Nagar, Gali no.1, Delhi. Petitioners/plaintiffs claimed to have purchased the property from the defendants by paying consideration and execution of documents on 21.12.2007.

3. Defendants filed their joint written statement and have denied the claim of the petitioners/plaintiffs by pleading that a fraud has been played upon the defendants and the documents were got executed by fraud.

4. In view of the above, it is clear that in such a suit for injunction right to sue survives against the legal heirs of the defendant no.2 inasmuch as in the written statement the rights of the petitioners/plaintiffs in the suit property were denied.

5. I am constrained and pained to note that the counsel for the petitioner in the course of arguments was found to be repeatedly misleading this Court. Firstly, the argument was that the defendant no.3’s legal heirs have been brought on record by the impugned order, and defendant no.3 was only a proforma party, however, when the impugned order was read it was found that legal heirs not of defendant no.3 but of defendant no.2 were being brought on record, and, the defendant no.2 was not a proforma party because cause of action in the suit as also the reliefs were claimed in the suit against all the three defendants including defendant no.2. The next aspect on which the counsel for the petitioners/plaintiffs again sought to mislead this Court was by stating that the defendant no.2 in his written statement has admitted the case of the petitioners/plaintiffs. However, when the written statement was gone through, and which is a joint written statement by all the defendants, it is clear that there is no admission but in fact a very vehement contest of the suit by the defendants. Finally, counsel for the petitioners/plaintiffs argued that right to sue does not survive but I fail to understand this argument because once rights of parties in an immovable property are in issue, the right to sue survives on the death of the defendant.

6. In view of the above, it is clear that the impugned order is unimpeachable. The present petition is an abuse of the process of law and is accordingly dismissed with costs of Rs.20,000/-, and which costs shall be paid to the Delhi High Court Legal Aid Services Committee within a period of four weeks from today. The deposit of costs shall be a condition precedent to the petitioners/plaintiffs pursuing their suit in the court below. JULY 23, 2014 VALMIKI J. MEHTA, J. Ne