Janak Dulari Mehta v. Ramji Dass Decd Thr Lrs

V.B.GUPTA, J. ab

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 993/2010 & CM Nos. 14549/2010 & 13610/2010 % Judgment reserved on: 26th August, 2010 Judgment delivered on: 31st August, 2010 Janak Dulari Mehta, W/o Late Shri Ved Parkash Mehta Through Constituted Attorney Shri S. M. Mehta R/o 57 Chetna Apartments, Patparganj, I. P. Entension, New Delhi 110092 ….Petitioner. Through: Mr. Rohan Thawani, Advocate. Versus Sh. Ramji Dass S/o Gainda Ram, R/o PP 61, Pitampura, New Delhi (Dead) Through Legal Representative Smt. Shanta Bhatia W/o Late Shri V. P. Bhatia, R/o 92, Raja Garden, New Delhi 110015 ….Respondent Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. By way of present petition filed under Article 227 of the Constitution of India, there is challenge to order dated 13th July, 2010, passed by Additional District Judge, Delhi, whereby application of petitioner under Order 22 Rule 5 of Code of Civil Procedure (for short as "Code") etc. was dismissed. 2. Brief facts are that, on 7th May, 1988 Sh. Ramji Dass (since deceased) predecessor-in-interest of respondent herein, filed a suit for Specific Performance against present petitioner. 3. On 17th March, 2007, Sh. Ramji Dass died. Smt. Shanta Bhatia (respondent) filed an application for impleading her as legal representative, which was opposed by the petitioner. Vide order dated 31st July, 2008, trial court allowed the application making following conclusions; "(i) On perusal of the record, it is apparent that Shri Ramji Dass described his parentage at some places as son of Shri Ganda Ram and at other places as son of Shri Rattan Chand. Even in the statement given before the Court in evidence, similar methodology was adopted; (ii) the defendant has taken preliminary objection no. 1, appears to be on the point of parentage, the issue no. 4 (framed on 2.11.2001) is to this effect; (iii) at the stage of evidence, Shri Ramji Dass stepped into the witness box on 1.11.2002 and he had categorically narrated "….the name of my natural father was Shri Rattan Chand, I was taken in adoption by his real brother Shri Ganda Ram….". in his statement of 1.3.1993 similar version was elucidated " … Shri Rattan Chand was my father. Shri Ganda Ram adopted me therefore I write Ramji Dass son of Shri Ganda Ram. At present I am residing 56 Raja Garden New Delhi. (iv) in other suit filed by Smt. Janak Dulari Mehta, the aforementioned Shri Ramji Dass was impleaded as defendant no.1 naming him as Ramji Dass son of Shri Ganda Ram (although Smt. Janka Dulari had not filed any application for bringing legal representative of Shri Ramji Dass in suit for injunction); (v) as per applicant and record of plaintiff"s case Shri Ramji Dass, narrating his parentage by his natural father Shri Rattan Chand or as adopted father, son of Shri Ganda Ram is one and the same person but according to defendant it is not so; (v) the aforementioned conclusions also reflect the stands taken by each of the parties. However at the time of decision on application U/O XXII R 3 CPC, a prima facie view is to be formed. Considering the statement of Shri Ramji Dass vis-à-vis formal issue on this point and the opposition of defendant, at this stage application of Smt. Shanta Bhatia is not only within prescribed time but also the Will dated 8.3.1999 supports to implead her as legal representative of Shri Ramji Dass plaintiff. Accordingly application stands disposed off in her favour." 4. It is an admitted fact that this order of 31st July, 2008 was never challenged by the present petitioner. Hence, the same has become final. 5. Thereafter, petitioner filed an application on 16th July 2009, Under Order 16 Rule 1 (3) read with Order 16 Rule 6 and section 151 of the Code for issuance of summons to the witnesses and production of documents. 6. Vide order dated 23rd