Ng Nanda & Ors v. Gurbax Singh & Ors

MANMOHAN, J OCTOBER 18, 2010 Kapil/pk

* THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 21st September, 2010 % Judgment Pronounced on: 18th October, 2010 + CM No.330/2010 (Review Application) in LPA No. 373/2010 N.G. Nanda and others ..... Appellants Through: Mr. Arvind K. Nigam, Sr. Advocate with Mr.Sunil Mittal, Ms.Maldeep Sidhu & Ms.Aparna Saxena, Advs. versus Shri Gurbax Singh and others ..... Respondents Through: None CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ This is an application for review under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 (in short "the CPC") seeking review of the order dated 25th May, 2010 passed in LPA No. 373/2010. 2. To appreciate the grounds urged in the review, it is necessary to refer to the brief resumé of facts. The appellants as plaintiffs had filed a suit for specific performance of agreement against the first respondent and late Gulzari Lal Nanda, who was the original defendant No.2 in the suit. In the year 1983, Vivek Nanda, son of Gulzari Lal Nanda, filed an application for impleadment on the ground the said property belongs to the HUF. The learned trial judge, by order dated 29th August, 1984, allowed the application and he was impleaded as a party. The original defendant, G.L. Nanda, died on 15th January, 1998. Regard being had to the pecuniary jurisdiction, the matter was transferred to the district court where it was listed on 6th May, 2004. The plaintiffs could not appear before the court and the defendant No.1, namely, N.G. Nanda, informed the court on 20th September, 2004 that G.L. Nanda had expired. The suit was dismissed on 26th October, 2004. The plaintiffs filed an application for restoration. On inspection of the record, the plaintiffs found that G.L. Nanda had passed away and, accordingly, an application under Order 22 Rule 4 of the CPC was filed for impleadment of his wife in his place. An objection was filed stating, inter alia, the suit had abated on 16th April, 1998. An application was filed by the plaintiffs under Order 22 Rule 9 of the CPC praying for setting aside of abatement and bringing Smt. Nanda on record in place of the original defendant, G.L. Nanda. The trial judge disallowed the application for setting aside the abatement. 3. Being dissatisfied with the aforesaid order, FAO No. 42/2008 was filed before this Court. It was contended that when the son of Late G.L. Nanda was on record, the suit could not have abated. The learned Single Judge referred to number of decisions on the effect of abatement or dismissal and eventually came to hold as follows: - "31. In Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs. and Ors. (2008) 8 SCC 321, the Court observed; "Rule 10 A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of deceased. The need for diligence commences from the date of such knowledge." 32. Since, both defendants were party to the contract and one of the defendant died, the right to sue certainly survive to the surviving defendant. Even in the written arguments filed on behalf of respondent, it is stated that the effect of this abatement is limited to defendant no. 2 (Sh. G. L. Nanda). So far as defendant no. 1 is concerned, the rights to sue survive against him. 33. Thus, as per respondents" own case, right to sue survive to defendant no. 1. So, there was no cause for abatement of the suit. The impugned order passed by the trial court is